Karnataka High Court
Smt. Shushilamma vs Smt. Mallamma on 24 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:22073
RSA No. 408 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.408 OF 2025 (INJ)
BETWEEN:
1. SMT. SHUSHILAMMA
W/O LATE THIPPESHAPPA
AGED ABOUT 78 YEARS
2. KRISHNAMURTHY T.
S/O LATE THIPPESHAPPA
AGED ABOUT 58 YEARS
3. SMT. INDRAMMA
D/O LATE THIPPESHAPPA
W/O RAMESHAPPA
AGED ABOUT 55 YEARS
R/O KALLAHALLI VILLAGE
Digitally signed CHIKABIDIRE POST
by DEVIKA M HULIYARU HOBIL
Location: HIGH CHIKANAYAKANAHALLI TALUK-572 228.
COURT OF
KARNATAKA
4. LOKESHAPPA T.
S/O LATE THIPPESHAPPA
AGED ABOUT 53 YEARS
5. MANJAPPA
S/O LATE THIPPESHAPPA
AGED ABOUT 49 YEARS
APPELLANTS NO.1, 2, 4 AND 5 ARE
AGRICULTURISTS
R/O KONDAPURA VILLAGE
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NC: 2025:KHC:22073
RSA No. 408 of 2025
HC-KAR
KASABA HOBLI
HOSADURGA - 577 544.
...APPELLANTS
(BY SRI. SPOORTHY HEGDE N., ADVOCATE)
AND:
1. SMT. MALLAMMA
W/O LATE MAHALINGAPPA
AGED ABOUT 79 YEARS
2. BHAGYAMMA @ BHYRAMMA
D/O LATE KENCHAPPA
AGED ABOUT 48 YEARS
3. ANIL KUMAR
S/O LATE KENCHAPPA
AGED ABOUT 38 YEARS
4. ASHWINI
D/O LATE KENCHAPPA
AGED ABOUT 38 YEARS
5. ASHA
D/O LATE KENCHAPPA
AGED ABOUT 31 YEARS
6. ANUSHA
D/O LATE KENCHAPPA
AGED ABOUT 26 YEARS
7. GOWRAMMA
W/O HANUMANTHAPPA
AGED ABOUT 60 YEARS
8. MANJAPPA
S/O LATE MAHALINGAPPA,
AGED ABOUT 61 YEARS,
9. CHANDRAMMA
D/O LATE MAHALINGAPPA
AGED ABOUT 59 YEARS
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RSA No. 408 of 2025
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10. KARIYAMMA
W/O ANANDAPPA,
D/O LATE MAHALINGAPPA
AGED ABOUT 54 YEARS
11. KARIYAPPA
S/O CHIGARANGAPPA,
AGED ABOUT 74 YEARS
12. RANGANATHA
S/O PARAPPA
AGED ABOUT 41 YEARS
13. CHANDRAPPA
S/O KARIYAPPA,
AGED ABOUT 70 YEARS
ALL ARE AGRICULTURISTS
R/O KODAPURA VILLAGE
KASABA HOBLI
HOSADURGA TALUK
CHITRADURGA-577 544.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 18.01.2025
PASSED IN R.A.NO.9/2022 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, HOSADURGA, DISMISSING THE APPEAL
AND FILED AGAINST THE JUDGMENT AND DECREE DATED
18.11.2021 PASSED IN O.S.NO.193/2016 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JMFC, HOSADURGA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 408 of 2025
HC-KAR
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission and I have heard
learned counsel for the appellants.
2. The suit is filed for the relief of permanent
injunction. The Trial Court having assessed both oral and
documentary evidence available on record, particularly in
paragraph No.23, comes to the conclusion that when the suit is
filed for the relief of permanent injunction, it is the duty of the
plaintiff to prove exclusive possession and enjoyment of the
suit properties, but the plaintiff, except the plaint averments
has not produced any material before the Court to prove his
exclusive possession and enjoyment of the suit property and
giving such finding dismissed the suit.
3. Being agreed by the said judgment and decree, an
appeal is filed in R.A.No.9/2022. The counsel would vehemently
contend that in the appeal also, the First Appellate Court
committed an error in not appreciating the material available
on record and an application is filed under Order 41 Rule 27
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CPC to produce the partition deed and though First Appellate
Court not framed any point for consideration to consider the
additional documents, but in paragraph No.28 discussed the
same that an application is filed along with the document dated
28.11.1990 and the same is not a registered partition deed.
Hence, question of considering the said document does not
arise and dismissed the appeal.
4. Now, learned counsel for the appellants would
vehemently contend that both the Courts committed an error in
not considering Exs.P4 and P5, wherein it is clearly stated that
there was a partition between the ancestors and suit properties
came to the share of the plaintiff and both the Courts ought to
have considered the same and Trial Court committed an error
in dismissing the suit and First Appellate Court committed an
error in confirming the same. Hence, it requires
reconsideration.
5. Having heard learned counsel for the appellants,
when the suit is filed for the relief of the permanent injunction,
it is the duty cast upon the plaintiff to prove that as on the date
of filing of the suit, he is in possession of the suit schedule
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property and that there is interference and in order to prove
the said factum of possession as well as interference, nothing is
placed on record before the Trial Court and the same is
observed in paragraph No.23 of the judgment of the Trial
Court. No doubt, an attempt is made in the appeal to produce
the document of earlier partition deed dated 28.11.1990 by
filing an application under Order 41 Rule 27 CPC, the First
Appellate Court having considered the fact that the said
document is not a registered document, observed that question
of entertaining the same as additional documents does not
arise and dismissed the same and also considered the material
on record regarding proving of exclusive possession of the
plaintiff which has not been proved. When such material is
considered by both the Trial Court as well as the First Appellate
Court and fact finding is given with regard to very exclusive
possession of the plaintiff in respect of the suit schedule
property and now, document is placed on record and though
contend that earlier there was a partition in the year 1990 and
the same is an unregistered document and no document is
placed before the court in pursuance of the said partition deed
and even consequent upon the said partition, they are in
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possession also, no such document is placed to show that
plaintiff is in possession of the property and unless exclusive
possession of the property is proved by the plaintiff, granting
any relief does not arise and both the Courts have taken note
of factual aspects and question of law. Hence, question of
admitting the second appeal does not arise, since finding is
given on both question of fact and question of law by both the
Courts. Therefore, no substantial question of law arises for
consideration in this appeal to frame by admitting the second
appeal.
6. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
