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2025 DAILYLAW 34697 (KAR)

BORAMMA v. C RAMAKRISHNA

RSA/1541/2024 · 2025-06-23

H P Sandesh

Original Suitbody2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

- 1 - HC-KAR NC: 2025:KHC:21809 RSA No. 1541 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1541 OF 2024 (INJ) BETWEEN: 1. BORAMMA, W/O LATE BORAIAH, AGED ABOUT 90 YEARS, HOUSEHOLD, KAVALAGUNDI POST, BHADRAVATHI-577229, REP. BY HER GPA HOLDER, K.G.GANGADHARA, S/O LATE BORAIAH AGED ABOUT 68 YEARS, KAVALAGUNDI POST, BHADRAVATHI-577 229. …APPELLANT (BY SRI. VARADARAJ RANGANATHA RAO HAVALDAR, ADVOCATE) AND: 1. C. RAMAKRISHNA, S/O LATE THIMMAIAH, AGED ABOUT 69 YEARS, RETIRED POLICE CONSTABLE. 2. SURESH, S/O LATE THIMMAIAH, AGED ABOUT 63 YEARS, AGRICULTURIST. BOTH ARE R/O VEERAPURA VILLAGE, Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:21809 RSA No. 1541 of 2024 SIRIYUR POST, BHADRAVATHI TALUK-577 229. …RESPONDENTS (BY SRI. VINAY D. HOSMATH, ADVOCATE FOR R1 AND R2) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 12.08.2024 PASSED IN R.A.NO.70/2023 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, BHADRAVATHI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.04.2023 PASSED IN O.S.NO.249/2016 ON THE FILE OF THE C/C IV ADDITIONAL CIVIL JUDGE AND JMFC, BHADRAVATHI. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission. Heard the learned counsel for the appellant and the learned counsel for the respondents. 2. The factual matrix of the case of the plaintiff is that the suit was filed seeking the relief of permanent injunction claiming that the plaintiff is in possession of the suit schedule property since the year 1950-51. The property is morefully described in the schedule. It is also contended that the plaintiff was in possession of the same along with her husband and was using the same to tether the cattle and - 3 - HC-KAR NC: 2025:KHC:21809 RSA No. 1541 of 2024 subsequently she put the cattle shed therein. During 1973, one Nanjappa S/o Siddegowda executed an agreement in respect of the said property in favour of the plaintiff. Accordingly, the plaintiff gave an application for change of khatha in her name based on possession and also based on the said agreement. Thereafter, the name of the plaintiff is entered as the owner in possession and enjoyment of the schedule property in the panchayath records since the year 1982-83 and accordingly she is paying taxes to the concerned authority. Earlier the suit schedule property was under the administrative control of the Kadadakatte Village Panchayath and subsequently it was taken over by the Grama Panchayath and now the said suit schedule property comes within the limits of City Municipality, Bhadravathi. Due to rain and storm, the shed situated in the suit schedule property is collapsed and now it is a vacant site. The defendants are the mother and sons and without any right they are interfering with the possession of the suit schedule property by the plaintiff and hence the plaintiff filed a suit. 3. It is also the case of the plaintiff that originally the land bearing Sy.No.23 of Kadadakatte Village belonged to one - 4 - HC-KAR NC: 2025:KHC:21809 RSA No. 1541 of 2024 Somaiah. The said Somaiah had two sons and both divided the property by way of a registered partition deed, wherein the eldest son Manjunathaiah got 3 acres in Sy.No.23/1 and another son Shankaranarayana got 3 acres in Sy.No.23/2 and Somaiah got 1 acre 20 guntas in Sy.No.23/2. Subsequently, the said Shankaranarayana sold 35 guntas of land out of his share, to one Nanjappa S/o Siddegowda, under a registered sale deed dated 02.11.1960. In the said sale deed, the survey number is wrongly mentioned as Sy.No.23/1 instead of Sy.No.23/2. It is contended that on 31.01.1961, the said Nanjappa sold an extent of 3 guntas in Sy.No.23/1 in favour of Javaraiah S/o Dasegowda. But the said original vendor had no right over the land bearing Sy.No.23/1. The defendants are the widow and children of one Thimmaiah, who is the son of Javaraiah. It is also the contention that earlier the defendants had filed O.S.No.322/2009 against the plaintiff seeking the relief of permanent injunction and obtained exparte injunction order. However, subsequently, the said suit came to be dismissed and the same has attained finality. The boundaries to the suit schedule property and the defendants’ properties are entirely different. But, inspite of the same, the defendants are trying to interfere with the - 5 - HC-KAR NC: 2025:KHC:21809 RSA No. 1541 of 2024 possession of the plaintiff over the suit schedule property and hence sought for the relief. 4. Per contra, the defendants appeared and filed the written statement contending that the father-in-law of defendant No.1 by name, Javaraiah had purchased 3 guntas of land in Sy.No.23/1G at Kadadakatte Village with specific boundaries from one Nanjappa S/o Siddegowda under a registered sale deed dated 28.01.1961. Accordingly, he was in possession and enjoyment of the same by mutating the khatha and after the death of Javaraiah, the khatha of the written statement schedule property is mutated in the name of his son Thimmaiah and accordingly he was in possession and enjoyment of the same. Thimmaiah died on 26.06.2011 and thereafter the defendants being the class-I heirs of the said Thimmaiah are in possession of the written statement property. It is contended that the plaintiff is not having any right over the suit schedule property. 5. The Trial Court having considered the pleadings of both the parties, framed the issues regarding possession is concerned and dismissed the suit in coming to the conclusion that though the plaintiff claims that she is in possession of the - 6 - HC-KAR NC: 2025:KHC:21809 RSA No. 1541 of 2024 suit schedule property from 1950-51, no documents are placed before the Court. Though it is claimed that an agreement was entered in the year 1973, the said agreement was not placed on record and hence the Trial Court comes to the conclusion that with regard to the identity of the property and possession is concerned, except placing of document Ex.P.8, nothing is placed on record. Ex.P.8 is the sketch and to that effect discussion was made in paragraph No.14 that the same has not been proved and the author of the document also not been examined. Ex.P.11 is the endorsement and Ex.P.17 is the certificate by CMC. The Trial Court having considered those documents comes to the conclusion that the plaintiff has failed to prove her possession and hence not entitled for the relief of permanent injunction. 6. Being aggrieved by the judgment and decree of the Trial Court, R.A.No.70/2023 is filed. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the points whether the Trial Court committed an error in dismissing the suit and whether it requires interference of the Court. The First Appellate Court having considered the pleadings of the parties and also the - 7 - HC-KAR NC: 2025:KHC:21809 RSA No. 1541 of 2024 schedule, which has been extracted in paragraph No.19, discussion was made in paragraph No.20 and comes to the conclusion that the property which is in dispute is a vacant site. The discussion was made in paragraph No.22 regarding the claim made by the plaintiff and in paragraph No.24 the First Appellate Court taken note of that the plaintiff has not produced the agreement said to have been executed by Nanjappa in her favour during the year 1973, based on which her name is entered in the panchayath records. It is also taken note of that it is not in dispute that demand register extract for Kadadakatte Panchayath for the year 1982-83 discloses the name of the plaintiff as the owner in possession and enjoyment of the suit schedule property. But the plaintiff has not produced any document to show that she has been put in possession of the suit schedule property. It is also taken note of the sketch which has been relied upon and also taken note of the earlier injunction was granted in favour of the defendants and the same was challenged and confirmed by this Court also and made an observation that when the plaintiff seeks the relief of permanent injunction, she should prove the possession. In order to prove the possession, nothing is placed on record. On the other hand, the - 8 - HC-KAR NC: 2025:KHC:21809 RSA No. 1541 of 2024 defendants have placed the records before the Court and hence dismissed the appeal. 7. Being aggrieved by the concurrent finding, the present second appeal is filed before this Court. 8. The main contention of the learned counsel for the appellant before this Court is that both the Courts have committed an error in not considering the documents Exs.P.8, 11 and 17 and those documents discloses that the appellant/plaintiff is in possession of the suit schedule property. The learned counsel contend that this Court has to frame substantial question of law regarding possessory right of the plaintiff over the plaint schedule property, which is recognised and protected in law, particularly the plaintiff’s documents of Exs.P.5, 8, 17 is very clear and frame substantial question of law regarding possession is concerned. 9. Per contra, the learned counsel for the respondents would contend that though the plaintiff claims the title over the property, no such document is placed on record. The learned counsel contend that the plaintiff claims that she is in possession from 1950-51 onwards and no documents are placed on record. However, again claims that - 9 - HC-KAR NC: 2025:KHC:21809 RSA No. 1541 of 2024 the plaintiff is in possession over the suit schedule property from 1973 based on the agreement and the said agreement is also not placed on record. The document of Ex.P.8, which the plaintiff relies upon has also not been proved by examining the author of the document. All these aspects have been taken note of by the Trial Court and the First Appellate Court and while granting the relief of permanent injunction, it is settled law that the plaintiff has to prove her possession and in order to prove her possession, no documents are placed on record and hence the question of entertaining the second appeal does not arise and no grounds are made out to frame the substantial question of law. 10. Having heard the learned counsel for the appellant and the learned counsel for the respondents, it is not in dispute that the plaintiff had filed the suit for the relief of permanent injunction and in order to prove the possession is concerned, only relies upon the document of Ex.P.8 sketch and the same has not been proved by examining any authenticated person. Apart from that, when the claim is made based on the agreement that the same came into existence in 1973, the said agreement is also not placed on - 10 - HC-KAR NC: 2025:KHC:21809 RSA No. 1541 of 2024 record. The learned counsel for the respondents submits that what prevented the plaintiff from placing on record the said agreement and the learned counsel for the appellant submits that the same was misplaced. In order to prove the factum of identity of the property and also the possession, no documents are placed on record and only relies upon the documents of Ex.P.11 endorsement and Ex.P.17 certificate issued by CMC and the plaintiff examined three witnesses as P.W.1 to P.W.3. 11. It is settled law that while granting the relief of permanent injunction, the plaintiff has to prove that as on the date of filing of the suit, she has been in possession of the suit schedule property and there is an interference. No material document is placed on record for having put her in possession of the property and though relies upon the agreement, no such agreement is also placed on record and the same is also observed by the Trial Court and the First Appellate Court. The plaintiff has not produced any documents to show that she was put in possession of the suit schedule property and hence the question of granting the relief of permanent injunction does not arise. Both the Courts - 11 - HC-KAR NC: 2025:KHC:21809 RSA No. 1541 of 2024 have taken note of both oral and documentary evidence placed on record. Unless the plaintiff proves the identity of the property and possession is proved, the question of granting the injunction does not arise. When both the Courts have taken note of the material available on record and given fact finding and unless the appellant makes out any perversity in the finding of both the Courts, the question of entertaining the second appeal does not arise and no substantial question of law is made out by the appellant to admit the second appeal. Hence, I do not find any ground to admit the second appeal and frame substantial question of law. 12. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 60