- 1 - HC-KAR NC: 2025:KHC:24997 RFA No. 1763 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY, 2025 BEFORE THE HON'BLE MS. JUSTICE JYOTI MULIMANI REGULAR FIRST APPEAL NO. 1763 OF 2017 (INJ) BETWEEN: SRI. B.R.VENKATESH MURHTY S/O LATE SRI RAMAIAH, AGED ABOUT 53 YEARS, R/AT NO.3, 7TH CROSS, SHIVANAGAR, WEST OF CHORD ROAD, RAJAJINAGAR, BENGALURU 560 010. …APPELLANT (BY SRI. G.B.NANDISH GOWDA., ADVOCATE) AND: 1. SMT. DEVIKA.B.R. W/O LATE SRI. HANUMEGOWDA, AGED ABOUT 46 YEARS, 2. SRI. YOGESH.H S/O LATE HANUMEGOWDA, AGED ABOUT 27 YEARS, BOTH ARE R/AT NO.3/1, 7TH CROSS,SHIVANAGAR, WEST OF CHORD ROAD, RAJAJINAGAR, BENGALURU-560 010. …RESPONDENTS (BY SRI. SATHISH., ADVOCATE FOR R1 & 2 [ABSENT]) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE. Digitally signed by THEJAS KUMAR N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:24997 RFA No. 1763 of 2017 THIS REGULAR FIRST APPEAL IS LISTED FOR FINAL HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED AS UNDER: ORAL JUDGMENT Sri.Nandish Gowda, counsel on behalf of R.B. Sadasivappa, for the appellant, has appeared in person. There is no representation on behalf of respondents 1 and 2, either personally or through video conferencing. As could be seen from the daily order sheet, the appeal was listed on 13.01.2025, 23.01.2025 and 03.07.2025. On those days, there was no representation on behalf of respondents 1 and 2. The appeal is listed today. As already noted above, today also there is also no representation on behalf of respondents 1 and 2. Hence, this Court proceeds to pass an order on the merits of the case. 2. This is an appeal from the Court of XX Addl. City Civil and Sessions Judge, (CCH-32), Bangalore City. 3. For convenience's sake, the parties are referred to as per their status and rankings before the Trial Court. - 3 - HC-KAR NC: 2025:KHC:24997 RFA No. 1763 of 2017 4. The short facts are these: The first plaintiff contended that her husband, Hanumegowda, died on 08.12.1991, and his brother Giriyappa predeceased him. There was a partition in her husband's family on 20.01.1998, and her son was allotted a property. It is said that she could not eke out her livelihood at Narasaiahana Agrahara, hence, she alienated the property on 25.11.2004 to one P.Alvi Mohammed for a valuable consideration and shifted to Bengaluru by purchasing the suit schedule property from Gangadhara S/o.Thimmaiah. She contended that her son was a minor and hence, the property was purchased in her name. Alleging interference from the defendant, the plaintiffs filed a suit seeking the relief of an injunction. After service of the summons, the defendant appeared through his counsel and filed a written statement. He denied the plaint averments. The defendant specifically contended that since he fulfilled the family obligations, his sister and mother jointly bequeathed the property in his favor, on 23.12.2012, by executing a registered Gift Deed. Among other grounds, he prayed for dismissal of the suit. - 4 - HC-KAR NC: 2025:KHC:24997 RFA No. 1763 of 2017 The Trial Court framed issues. The parties led evidence and documents were exhibited. The Trial Court vide Judgment dated 04.09.2017 decreed the suit and the defendant or anybody on his behalf were permanently restrained from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. Hence, the defendant has filed the present appeal under Section 96 of CPC. 5. Sri.G.B.Nandish Gowda, counsel for the appellant, submits that the Judgment of the Trial Court is contrary to law and opposed to the oral and documentary evidence on record. Next, he submits that Smt.B.R.Devika - the first plaintiff and mother Smt.Rangamma executed a Gift Deed out of love and affection in favor of the defendant on 23.12.2012 and put him in possession of the property. A further submission is made that the first plaintiff was not the owner in possession of the suit schedule property as of the date of filing of the suit. Counsel vehemently contended that the Trial Court had not dealt with the case from the right perspective. - 5 - HC-KAR NC: 2025:KHC:24997 RFA No. 1763 of 2017 Lastly, he submits that viewed from any angle, the Judgment and Decree of the Trial Court is untenable and the same is liable to be set aside. Counsel, therefore, submits that the appeal may be allowed. 6. Heard the arguments and perused the appeal papers and the records with care. 7. The short point that requires consideration is whether the Judgment and Decree of the Trial Court requires interference. 8. The facts are sufficiently said and do not require reiteration. The suit giving rise to this appeal was filed by the plaintiffs seeking the relief of an injunction. As could be seen from the nature of the lis between the parties, the suit is one for bare injunction based on possession as of the date of filing of the suit. The right to an injunction is based on a prima facie right. The issue revolves around the factum of possession as of the date of filing of the suit. It would be relevant to see that in a suit for bare injunction, the plaintiff must prove her/his lawful possession and enjoyment over the suit property as of the date of filing of the suit. - 6 - HC-KAR NC: 2025:KHC:24997 RFA No. 1763 of 2017 Suffice it to note that the property originally belonged to one Thimmaiah. It is significant to note that Thimmaiah sold a major portion of the property in favor of Smt.Rangamma - mother of the first plaintiff and the defendant in 1975. It is pivotal to note that the plaintiff purchased the remaining portion of the property on 30.12.2006 from Mr.Gangadhara S/o.Thimmaiah. Ex.P.1 is the Sale Deed dated 30.12.2006. A perusal of the daily order sheet of the Trial Court dated 10.04.2018 depicts that the original documents were returned to the plaintiff by replacing them with certified copies. A perusal of the certified copy of Ex.P.1 reflects that S.T.Gangadhara S/o.Thimmaiah sold the property in favor of Smt.B.R.Devika - the first plaintiff. It is pivotal to note that the defendant fulfilled the family obligations; hence, the mother and sister, out of love and affection bequeathed the entire property in defendant's favor by jointly executing a Gift Deed on 23.11.2012 and put him in possession of the property. Because of the Gift Deed, the first plaintiff and her mother had lost title over the suit- schedule property. In my view, the Trial Court unnecessarily took pains to discuss the issue as if it were a partition suit. As - 7 - HC-KAR NC: 2025:KHC:24997 RFA No. 1763 of 2017 already noted above, in a suit for bare injunction, what is required to be considered is prima facie ownership and possession over the suit schedule property as of the date of filing of the suit. In the present case, admittedly, the first plaintiff and her mother Rangamma had lost title and prima facie ownership over the suit schedule property as of the date of filing of the suit. This aspect of the matter has been overlooked by the Trial Court, and it erroneously decreed the suit. I may venture to say that the Trial Court has failed to have regard to relevant considerations and disregarded relevant matters. For the reasons stated above, the Judgment and Decree of the Trial Court are liable to be set aside. 9. The Judgment and Decree dated 04.09.2017 passed by the XX Addl. City Civil and Sessions Judge (CCH-32), Bangalore City in O.S.No.6236/2013 is set aside. The plaintiffs' suit is dismissed. 10. Resultantly, the Regular First Appeal is allowed. Sd/- (JYOTI MULIMANI) JUDGE TKN List No.: 1 Sl No.: 27