- 1 - HC-KAR NC: 2025:KHC:49071 RSA No. 2086 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 2086 OF 2013 (INJ) BETWEEN: SMT. AKKAMMA W/O LATE MUKKALA CHITHAPPA MAJOR, AGRICULTURIST R/O PULUMACHI VILLAGE I D HALLLI HOBLI MADHUGIRI TALUK TUMKUR DISTRICT - 562 131 …APPELLANT (BY SRI. VENKATA SUBBA RAO G S., ADVOCATE) AND: SMT. JAMPALAMMA W/O GOPALAPPA MAJOR, AGRICULTURIST R/O PULUMACHI VILLAGE I D HALLI HOBLI MADHUGIRI TALUK TUMKUR DISTRICT - 562 131 …RESPONDENT (RESPONDENT SERVED) THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 30.8.2013 PASSED IN R.A.NO.44/2012 ON THE FILE OF THE ADDL. SR. CIVIL JUDGE & JMFC., MADHUGIRI, DISMISSING THE APPEAL AND Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:49071 RSA No. 2086 of 2013 CONFIRMING THE JUDGEMENT AND DECREE DTD 3.3.2012 PASSED IN O.S.NO.291/2008 ON THE FILE OF THE ADDL. CIVIL JUDGE & JMFC., MADHUGIRI. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 30.08.2013 passed in RA No.44/2012 by the learned Additional Senior Civil Judge and JMFC, Madhugiri ('First Appellate Court' for short) and the judgment and decree dated 03.03.2012 passed in OS No.291/2008 by the learned Additional Civil Judge (Junior Division) and JMFC, Madhugiri ('Trial Court' for short). 2. For convenience, parties are referred to based on their ranking before the Trial Court. Appellant was the plaintiff and respondent was the defendant. 3. Brief facts leading rise to the filing of this appeal are as follows: - 3 - HC-KAR NC: 2025:KHC:49071 RSA No. 2086 of 2013 3.1. The plaintiff filed a suit against the defendant for permanent injunction. It is the case of the plaintiff that she is the absolute owner and in possession of the suit schedule property. The suit property was purchased by the plaintiff under a registered sale deed dated 20.01.1969 and was registered in the name of her husband, who passed away. After his demise, she became the absolute owner and in possession of the suit schedule property. The defendant has no right, title or interest over the suit schedule property. The defendant is attempting to interfere with the plaintiff’s possession. Hence, a cause of action arose for the plaintiff to file a suit for permanent injunction. Accordingly, prays to decree the suit. 4. The defendant filed a written statement contending that, the sale deed dated 20.01.1969 is registered in the name of the plaintiff’s husband, who is the father of the defendant. Thus, it is contented that, the plaintiff is the aunt of the defendant and the plaintiff is the second wife of the defendant’s father Mukkala Chithappa. - 4 - HC-KAR NC: 2025:KHC:49071 RSA No. 2086 of 2013 The first wife Doddakka is said to have passed away leaving behind the defendant and her sister Chithamma. The suit schedule property is the ancestral joint family property of the plaintiff, defendant and her sister. The father of the defendant purchased the said property out of the joint family nucleus and it is in the joint possession and enjoyment of the plaintiff, defendant and his sister Chithamma. The defendant has 1/4th share in the suit schedule property and filed a suit in OS No.75/2006 for partition and separate possession. The said suit was decreed and final decree proceedings have been initiated in FDP No.4/2008, which is pending. Hence, the suit filed by the plaintiff against the defendant is not maintainable and prayed to dismiss the suit. 5. The Trial Court, based on the pleadings of the parties, framed the following issues: 1. Whether the plaintiff proves that she is in actual possession and enjoyment of suit property? 2. Whether the plaintiff proves that alleged obstruction and interference from defendant ? - 5 - HC-KAR NC: 2025:KHC:49071 RSA No. 2086 of 2013 3. Whether the plaintiff is entitled for relief sought ? 4. What order or decree ? 6. The plaintiff, to substantiate her case, examined herself as PW-1 and one witness as PW-2, and marked 5 documents as Exs.P1 to P5. In rebuttal, the defendant examined herself as DW-1 and one witness as DW-2, and jmarked 3 documents as Exs.D1 to D3. 7. The Trial Court, after assessing the verbal and documentary evidence, answered issue Nos.1 to 3 in the negative, and issue No.4 as per the final order. The suit of the plaintiff was dismissed with costs of Rs.1,500/- vide judgment dated 03.03.2012. 8. Aggrieved by the dismissal of the suit in OS No.291/2008, the plaintiff preferred an appeal in RA No.44/2012 before the First Appellate Court. 9. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: - 6 - HC-KAR NC: 2025:KHC:49071 RSA No. 2086 of 2013 1. Whether the Injunction sought for by the plaintiff was against the co-owner ? 2. Whether the impugned Judgment and Decree requires interference by this court? 3. What order or decree ? 10. The First Appellate Court, after hearing the learned counsel for the parties and re-assessing the verbal and documentary evidence, answered point No.1 in the affirmative, point No.2 in the negative and point No.3 as per the final order. The appeal was dismissed and the judgment and decree passed in OS No.291/2008 was confirmed. 11. The plaintiff, aggrieved by the impugned judgments, filed this Regular Second Appeal. 12. The notice was issued on the defendant, though the notice was served, the defendant remained unrepresented. 13. Heard the arguments of the learned counsel for the plaintiff. - 7 - HC-KAR NC: 2025:KHC:49071 RSA No. 2086 of 2013 14. Learned counsel for the plaintiff submits that, the defendant, in the cross-examination, admitted the plaintiff's possession over the suit schedule property. He submits that, in a suit for injunction, the Trial Court is required to consider the possession and interference. In view of the admission of DW-1 in the cross-examination regarding the possession of the plaintiff, the Trial Court could have decreed the suit. On the contrary, it has dismissed the suit. The judgment and decree passed by the Trial Court is contrary to the admission of DW-1 and the First Appellate Court also committed an error in upholding the judgment and decree passed by the Trial Court. Hence, on these grounds, he prays to allow the appeal. 15. Perused the records and considered the submissions of the learned counsel for the plaintiff. 16. This Court admitted the appeal vide order dated 21.08.2019 to consider the following substantial questions of law: - 8 - HC-KAR NC: 2025:KHC:49071 RSA No. 2086 of 2013 Whether the court below is right in rejecting the suit for injunction inspite of admission by D.W.1 that plaintiff is in possession and enjoyment of the suit property? Reg. Substantial Question of Law: 17. The plaintiff filed a suit for permanent injunction claiming that the plaintiff is the absolute owner and in possession of the suit schedule property and the defendant has no right, title or interest over the suit schedule property. The plaintiff, to substantiate her case, examined herself as PW-1. PW-1 in the cross-examination, admitted that, her husband is having 3 acres 30 guntas including the suit property, which is the ancestral property of her husband and admitted the death of her father-in- law, and further, she has stated that, her husband has mortgaged the property to one Chikkaveerabhadrappa and PW-1 paid Rs.20,000/- to the said Chikkaveerabhadrappa and took back the property in her name. The plaintiff also examined the adjacent owner of the suit schedule property as PW-2, who has deposed that, the plaintiff is in - 9 - HC-KAR NC: 2025:KHC:49071 RSA No. 2086 of 2013 possession of the suit schedule property. During the cross- examination, he admits that the suit schedule property is the ancestral joint family property of the plaintiff. 18. The defendant examined herself as DW-1 and contended that, the suit schedule property is the ancestral joint family property and filed a suit for partition and separate possession and the defendant has got share in the suit schedule property. To prove the defence, the defendant has produced the documents Exs.D1 to D3 the certified copies of (i) order sheet in OS No.75/2006, (ii) RA No.121/2008 and (iii) the judgment and decree in OS No.75/2006. During the cross-examination, though the defendant has admitted that the plaintiff is in possession of the suit schedule property, from the perusal of the entire evidence on record PW-1 has clearly admitted that the suit schedule property is the ancestral joint family property of the plaintiff and the defendant and admittedly, a suit for partition and separate possession was filed in OS No.75/2006. The said suit came to be decreed and - 10 - HC-KAR NC: 2025:KHC:49071 RSA No. 2086 of 2013 final decree proceedings are pending. The said fact was admitted by PW-2 and DW-2 in the cross-examinations. When the suit schedule property is the ancestral joint property of the plaintiff and the defendant, it is settled law that if any member of the family is in possession of the suit schedule property, it is deemed to be in possession of all the family members and it is also settled law that, no injunction can be granted against the coparceners as per the proposition laid down by the Hon’ble Apex Court in the case of Delhi Development Authority Vs. Diwan Chand Anand1. Though DW-1 admitted that plaintiff is in possession of the suit schedule property, but the possession of the plaintiff is for and on behalf of the family members and not in her individual capacity. Thus, both the Courts below have concurrently recorded the finding of fact and rightly overlooked the admission of DW-1 in the cross-examination. The Courts below have appreciated the entire evidence on record and regarding the pendency of 1 CA No.2397/2022, disposed of on 11.07.2022 - 11 - HC-KAR NC: 2025:KHC:49071 RSA No. 2086 of 2013 the final decree proceedings. I do not find any error in the impugned judgments. In view of the above discussion, I answer the substantial question of law in the negative. 19. Accordingly, I proceed to pass the following: ORDER i. The appeal is dismissed; ii. The judgments and decrees passed by the Courts below are hereby confirmed; iii. No order as to costs; iv. Pending IAs, if any, are disposed of accordingly. Sd/- (ASHOK S.KINAGI) JUDGE PA CT:KHV List No.: 2 Sl No.: 11