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2025 DAILYLAW 69662 (KAR)

SMT THERESA v. SMT PARVATHI POLAVARAPU

RSA/984/2025 · 2025-12-05

H P Sandesh

Original Suitbody2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

- 1 - HC-KAR NC: 2025:KHC:51223 RSA No. 984 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.984 OF 2025 (INJ) BETWEEN: 1. SMT. THERESA, AGED ABOUT 57 YEARS, D/O LATE LOURDAPPA, RESIDING AT NO.81, ANANDAPURA, K.R.PURAM POST, BENGALURUE-560 036. 2. SMT. AGNES, AGED ABOUT 59 YEARS, D/O LATE LOURDAPPA, RESIDING AT SANNATHAMMANAHALLI, K.R. PURAM HOBLI, BENGALURU-560 036. …APPELLANTS (BY SMT. ANURADHA URS M.D., ADVOCATE) AND: 1. SMT. PARVATHI POLAVARAPU, AGED ABOUT 75 YEARS, W/O SRI. SAMBASIVA RAO POLAVARAPU, R/AT NO.C2-18, SOUTH AVENUE, I.T.I TOWNSHIP, DOORVANI NAGAR, BENGALURU-560 016. …RESPONDENT (BY SRI. NAVEEN KUMAR, ADVOCATE FOR C/R) Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:51223 RSA No. 984 of 2025 THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT DATED 17.04.2025 PASSED IN R.A.NO.1/2018 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 31.10.2017 PASSED IN O.S.NO.437/2010 ON THE FILE OF PRL. CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU. 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 appellants. 2. This second appeal is filed against the concurrent finding. 3. The suit is filed for the relief of bare injunction in respect of three items of the suit schedule properties as agricultural properties. The factual matrix of the case of the plaintiffs before the Trial Court is that the plaintiffs are in possession over the suit schedule properties as on the date of the suit and there is interference by the defendant. The defendant appeared and filed the written statement contending that the suit schedule property has lost its agricultural - 3 - HC-KAR NC: 2025:KHC:51223 RSA No. 984 of 2025 character long back and sites have been formed and same were sold to several persons by the parents of the plaintiffs. Hence, the Trial Court considering the pleadings of the parties, framed the issues and allowed the parties to lead evidence. The Trial Court having considered both oral and documentary evidence available on record, particularly the admission on the part of P.W.1, which is discussed in paragraph No.43, comes to the conclusion that the father of the plaintiffs, namely Lourdappa died on 27.02.1979 and also taken note of the sale deeds and observed that if the sale deeds are taken into consideration, it can be said that during the lifetime of the father of the plaintiffs, he himself sold some sites in favour of different purchasers on different dates. The above said sites are part and parcel of land bearing Sy.No.48/1. In the cross- examination of P.W.1, only answer was given by P.W.1 that she was not aware regarding the conversion of the land bearing Sy.No.48/1 from agricultural into non-agricultural purpose. However, in the plaint itself the plaintiff admitted that the plaintiffs have stopped cultivation of suit schedule property and the same is not cultivable. This admission was taken note of by the Trial Court while coming to the conclusion that during the - 4 - HC-KAR NC: 2025:KHC:51223 RSA No. 984 of 2025 lifetime of the plaintiffs’ father, he had sold some of sites in the said survey number and after his death, his wife and sons have also sold certain sites in Sy.No.48/1 to different purchasers. 4. The Trial Court also taken note of that the plaintiffs have obtained a decree in O.S.No.697/2007 in respect of suit schedule properties herein measuring 4 acres. In the present suit, the plaintiffs have not submitted documents to show 4 acres land standing in the name of the plaintiffs or their father. Ex.P.4 goes to show that the land bearing Sy.No.48/2A is standing in the name of Smt. Savithramma W/o Nagaraj and one Jacob S/o Rayappa. In the plaint or in the oral evidence of P.W.1, nowhere it is stated that how did the name of above said persons are reflecting in ROR of above said survey numbers. The Trial Court considering the same, comes to the conclusion that the property was not an agricultural land as on the date of filing of the suit and it lost its agricultural nature. The Trial Court taken note of the sale deeds executed by the father during his lifetime and also the mother and son and in detail discussed with regard to correction in respect of document Ex.D.26 and comes to the conclusion that the - 5 - HC-KAR NC: 2025:KHC:51223 RSA No. 984 of 2025 defendant also produced the sale deed and several sale deeds are also placed before the Court and the same are marked and the same was considered in paragraph Nos.49, 50 and 51. The defendant also submitted copy of the conversion order dated 03.04.1971, conversion sanction certificate vide document No.ALN SR 1946/1970-71 dated 28.04.1971 and document relating to the exemption and permission to sell the excess vacant land. The document submitted by the defendant goes to show that the defendant has submitted all those documents related to the suit schedule property, which are in his possession. The conversion order original copy may not be in possession of the defendant. However, he had produced the same before the Court. All these factors were taken note of by the Trial Court while rejecting the suit for the relief of permanent injunction, since the documents were placed before the Court that already sites are formed and sites are sold. Exs.D.2 and 3, which are registered sale deed documents are also taken note of and regarding registered documents are concerned, there is a presumption. The Trial Court considering all these materials, in paragraph No.55 comes to the conclusion that the plaintiffs have failed to establish their physical - 6 - HC-KAR NC: 2025:KHC:51223 RSA No. 984 of 2025 possession in respect of the entire area of land and burden is upon the plaintiffs to prove their possession over the suit schedule property and the same has not been proved and hence, dismissed the suit. 5. Being aggrieved by the same, an appeal is filed before the First Appellate Court in R.A.No.1/2018. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the points whether the Trial Court committed an error in holding that the plaintiffs have failed to prove the possession and whether it requires interference of this Court. The First Appellate Court on re-evaluation of both oral and documentary evidence, particularly taken note of the materials, which have been placed and with regard to possession is concerned. The document produced by the plaintiffs at Ex.P.1 is the judgment passed in O.S.No.697/2007 and Exs.P.3, 4 and 5 are the RTC extracts standing in the name of Lourdappa and later Savithramma and it has been mentioned as non-agricultural purpose. The plaintiffs asserts possession over the suit schedule property on the basis of the judgment passed in O.S.No.697/2007. The First Appellate - 7 - HC-KAR NC: 2025:KHC:51223 RSA No. 984 of 2025 Court having considered the material available on record, taken note of the documents at Exs.D.2 to 24 sale deeds, property extract, BBMP records, encumbrance certificate, tax paid receipts and other sale deeds and comes to the conclusion that the Trial Court not committed any error in coming to the conclusion that possession has not been established. 6. Being aggrieved by the concurrent finding, the present second appeal is filed before this Court. 7. The main contention of the learned counsel for the appellants before this Court is that suit for injunction simplicity in the present facts and circumstances of the case is maintainable, but the Trial Court committed an error in coming to the conclusion that some of the sites are sold to the co- owners without the consent of the other co-owners and the same was not taken note of and both the Courts were not justified in dismissing the suit for bare injunction. 8. Having heard the learned counsel for the appellants and also considering the material on record, this Court already pointed out that suit is filed for the relief of bare injunction in - 8 - HC-KAR NC: 2025:KHC:51223 RSA No. 984 of 2025 respect of agricultural property and item No.1 is shown as 1 acre in Sy.No.48/1A, item No.2 is 2 acres in Sy.No.48/1B and item No.3 is 1 acre in Sy.No.48/2B. In all to an extent of 4 acres. It is not in dispute that suit is filed for the relief of partition and the same is decreed, but not produced any material to show that, in terms of the said partition, the particular property is allotted in favour of the plaintiffs. Apart from that, it is emerged during the course of evidence that the father of the plaintiffs also sold the property during his lifetime and the mother and son also sold the property subsequent to the death of the father. The sites are formed and sold and the document of sale deeds are also very clear that in respect of the very same property, sites are formed and sold. When such being the case, when the property also lost its agricultural nature, the Trial Court answered issue No.3 in the affirmative in coming to the conclusion that the plaint suit schedule property lost its agricultural nature and when the possession is not established by the plaintiffs to the extent of 4 acres of land in respect of which suit is filed for bare injunction, I do not find any error on the part of the Trial Court and the First Appellate Court in appreciating both oral and documentary evidence. - 9 - HC-KAR NC: 2025:KHC:51223 RSA No. 984 of 2025 Hence, I do not find any perversity in the finding of both the Courts and in order to grant the relief of permanent injunction, the plaintiffs have to prove the settled possession in respect of the suit schedule property as on the date of filing of the suit and the same is not found and hence, no ground is made out to admit the second appeal and frame any substantial question of law by invoking Section 100 of CPC. 9. In view of the discussions made above, I pass the following: ORDER The second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 62