- 1 - HC-KAR NC: 2025:KHC-D:8523 RSA No. 101373 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 9TH DAY OF JULY 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.101373 OF 2022 (INJ) BETWEEN: SHRI. PRAKASH S/O. TUKARAM DONGARE, AGE: 37 YEARS, OCC: AGRICULTURE, R/O: GPC NO. 1673, NEAR DKSSK SUGAR FACTORY, ULLAGADIWADI, HAMLET OF EXAMBA, TQ: CHIKODI, DIST: BELAGAVI – 591 244. …APPELLANT (BY SRI. SHIVRAJ S. BALLOLI, ADVOCATE) AND: SMT. SAVITA W/O. RAJU DONGARE. AGE: 28 YEARS, OCC: AGRICUTLURE, R/O: EXAMBA, TQ: CHIKODI, DIST: BELAGAVI – 591 244. NOW RESIDING AT C/O: BALASO MARUTI WADAGAVE, NEAR DESHPANDE WADA, R/O: MALIKWAD VILLAGE, TQ: CHIKODI, DIST: BELAGAVI – 591 301. …RESPONDENT (BY SRI. S.T.PATIL & SRI. ROHIT S. PATIL, ADVOCATES) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 23.05.2022 PASSED IN R.A.NO.16/2021 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE, AT CHIKODI AND CONSEQUENTLY CONFIRM THE JUDGMENT AN DECREE DATED 30.03.2021 PASSED IN O.S.NO.170/2019 ON THE FILE OF LEARNED II ADDITIONAL CIVIL JUDGE AT CHIKODI BY ALLOWING THE TOP NOTED APPEAL TO MEET THE ENDS OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8523 RSA No. 101373 of 2022 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is by the defendant against the judgment and decree dated 23.05.2022 passed in R.A.No.16/2021 on the file of the Principal Senior Civil Judge at Chikkodi (First Appellate Court), by which the First Appellate Court while allowing the appeal filed by the plaintiff, set aside the judgment and decree dated 30.03.2021 passed in O.S.No.170/2019 on the file of the II Additional Civil Judge, Chikkodi and consequently decreed the suit by way of permanent injunction restraining the defendant, his agents, servants, etc. from ousting the plaintiff from the joint possession and enjoyment of the suit schedule properties. 2. The above suit is filed by the plaintiff/respondent herein seeking relief of permanent injunction in respect of the land bearing Survey No.560/4 measuring 1 acre and land bearing Survey No.556/4A measuring 1 acre 27 guntas, both situated at Examba - 3 - HC-KAR NC: 2025:KHC-D:8523 RSA No. 101373 of 2022 Village, Chikkodi Taluk contending that one Sri.Raju Tukaram Dongre was the husband of plaintiff and their marriage was solemnized on 28.12.2014. That they were blessed with a daughter by name Kaveri. Husband of the plaintiff passed away on 26.10.2017. Defendant is the brother of deceased husband of plaintiff. Raju Tukaram Dongre - husband of the plaintiff and defendant were doing independent work and out of their earning had purchased the suit properties in terms of deeds of sale dated 28.04.2011 and 23.05.2016 respectively. That in terms of the aforesaid deeds of sale, husband of the plaintiff and defendant were put in possession of the suit properties. Upon the demise of her husband, plaintiff and her daughter succeeded to his share. Thus, they have been in joint possession and enjoyment of the same. It is alleged that taking advantage of the death of her husband, the defendant is not cooperating in cultivation of the suit properties with by the plaintiff. The defendant is also not inclined to enter the name of the plaintiff in the revenue records pertaining to the suit properties and the - 4 - HC-KAR NC: 2025:KHC-D:8523 RSA No. 101373 of 2022 relationship between the plaintiff and defendant is thus strained. That despite the request being made, the defendant is not cooperating in the matter, thereby causing obstruction and disturbance in joint possession over the suit properties. Thereby he is trying to oust the plaintiff from the suit properties. Hence, the suit. 3. The defendant filed his written statement contending that the father of the defendant by name Tukaram also had constituted a joint family. He was having agricultural land and house properties at Examba village. Agricultural Lands bearing Survey Nos.579/2B, 556/4A, 560/4, 560/2, 470/1 and one house property situated in land bearing Sy.No.470/1 are in joint possession of family of the defendant which were purchased by the said Tukaram in the joint name of his two sons namely Raju Tukaram Dongre, husband of the plaintiff and the defendant. 4. That after the demise of the husband of the plaintiff, defendant and his family members have been in - 5 - HC-KAR NC: 2025:KHC-D:8523 RSA No. 101373 of 2022 possession and cultivation of the same as the plaintiff and her daughter left the matrimonial house permanently and is residing with her parents by voluntarily deserting the matrimonial home without any reason and she never cultivated the suit properties and she is not in joint possession of the same. Hence, sought for dismissal of the suit. 5. The Trial Court framed the following issues for its consideration: 1. Whether the plaintiff proves that she is in possession and enjoyment of suit properties as on the date of filing the suit? 2. Whether the plaintiff proves the alleged interference by the defendant? 3. Whether the plaintiff proves that she is entitled for the reliefs of permanent injunction? 4. What order or decree? 6. Plaintiff examined herself as PW1 and exhibited 10 documents marked as Ex.P1 to P10. Two witnesses - 6 - HC-KAR NC: 2025:KHC-D:8523 RSA No. 101373 of 2022 have been examined on behalf of defendants as DW1 and DW2 and 05 documents were marked as Ex.D1 to D5. 7. On appreciation, the Trial Court answered issue Nos.1 to 3 in the negative and consequently, dismissed the suit. Being aggrieved, the plaintiff preferred regular appeal in RA No.16/2021. The First Appellate Court framed the following points for its consideration: 1. Whether the trial court has erred in coming to the conclusion that the plaintiff is not entitled to the relief of permanent injunction as sought for on account of improper application of facts and law? 2. Whether the impugned judgment and decree of the trial court needs interference? 3. To what relief and decree, the parties are entitled to? 8. On re-appreciation of the matter, the First Appellate Court answered point Nos.1 and 2 in the affirmative and consequently, allowed the appeal and set aside the judgment and decree passed by the Trial Court - 7 - HC-KAR NC: 2025:KHC-D:8523 RSA No. 101373 of 2022 and decreed the suit as sought for. Being aggrieved by the same, the present appeal by the defendant. 9. Sri. Shivaraj S. Balloli, learned counsel appearing for the appellant/defendant submits that the First Appellate Court erred in reversing the judgment and decree passed by the Trial Court in granting the relief of injunction contrary to settled principle of law that no injunction can be granted against the co-owner of the property. He further submits that the plaintiff and her daughter are neither in possession nor cultivating the suit land and they have been residing separately. As such, grant of injunction against the defendant would cause irreparable hardship and prejudice to the defendant. 10. He further submits that the Trial Court has rightly dismissed the suit which ought not to have been interfered by the First Appellate Court. 11. Per contra, Sri. S. T. Patil, learned counsel appearing for the plaintiff submits that the apprehension of the plaintiff is that the defendant is trying to oust her - 8 - HC-KAR NC: 2025:KHC-D:8523 RSA No. 101373 of 2022 from the suit schedule properties. He submits that the relationship between the parties not having been denied and the defendant making all efforts to deny the legitimate entitlement of the plaintiff, she cannot be left without any aid from the Court as she is not able to withstand high handedness of the defendant. He submits that the First Appellate Court has rightly granted the relief which do not warrant any interference and no substantial question of law would arise. 12. Heard and perused the records. 13. Settled principle of law being a co-owner or co- sharer of a property cannot be injuncted on behalf of another co-owner or co-sharer unless the action of the co- owner is detrimental to the interest of the co-owner or co- sharer seeking protection. 14. In the instant case, plaintiff claiming to be the wife of one Raju Tukaram Dongre, who was the brother of the defendant is admittedly entitled for ½ share in the suit schedule property. The said Raju Rukaram Dongre is - 9 - HC-KAR NC: 2025:KHC-D:8523 RSA No. 101373 of 2022 stated to have passed away on 26.10.2017, leaving behind plaintiff and her daughter. It is alleged that upon his demise, defendant became hostile and indifferent not allowing them to enter upon the suit property even for the purpose of cultivation and also not allowing them to enter their names in the revenue records. It is in the background of these allegation, the suit seeking injunction is filed. 15. Case of the defendant on the other hand is that after the death of Raju Tukaram Dongre plaintiff deserted the matrimonial home and has been residing with her parents and she has not been cultivating the land and the defendant and his family have been in exclusive possession of suit property. 16. In the normal circumstances the appropriate remedy for the parties was to seek relief of partition. However, it is submitted by the learned counsel appearing for the appellant/defendant that there are other joint family properties which have not been brought on record - 10 - HC-KAR NC: 2025:KHC-D:8523 RSA No. 101373 of 2022 by the plaintiff even while only relief of injunction is sought. 17. The apprehension of the plaintiff of she being ousted from suit properties probablises by the very defence taken by the defendants of she having purportedly deserted the matrimonial home. 18. The action of the co-owner if manifests his intention of ousting the other co-owner, the same would affect the interest of the aggrieved co-owner. In the case of a joint family, possession of the joint family property by one co-owner/co-sharer is good and sufficient enough to construe the possession by other co-owner/co-sharer. 19. In the light of the said settled principles of law, the First Appellate Court has merely restrained the defendant from ousting the plaintiff from joint possession and enjoyment of the suit properties. The said order cannot be construed to mean that the defendant has been prevented in any manner from entering upon or cultivating - 11 - HC-KAR NC: 2025:KHC-D:8523 RSA No. 101373 of 2022 the suit properties. Therefore, the same cannot be found fault with. 20. In that view of the matter, no substantial question of law would arise for consideration. 21. Accordingly, the appeal is disposed off, reserving liberty to the parties to seek substantial remedy of seeking partition by bringing on record the other family properties, if any. Sd/- (M.G.S. KAMAL) JUDGE SH-para 1 to 3 SMM-para 4 to till end CT-ASC / List No.: 1 Sl No.: 9