- 1 - HC-KAR NC: 2025:KHC:41923 RSA No. 523 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 523 OF 2013 (INJ-) BETWEEN: 1. MAHADEVAPPA AGED 50 YEARS S/O LATE SUBBEGOWDA 2. MAHESHA AGED 26 YEARS S/O MAHADEVAPPA …APPELLANTS (BY SRI. H R RENUKA., ADV.) AND: SUMBRAMANYA AGED 59 YEARS Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:41923 RSA No. 523 of 2013 S/O SUBBEGOWDA R/AT HUNASEKUPPE VILLAGE KASSABA HOBLI H D KOTE TALUK MYSORE DISTRICT-571125 …RESPONDENT (BY SRI. RAMESH G P., ADV.) RSA FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 29.11.2012 PASSED IN R.A.NO.312/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., HUNSUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 2.3.2009 PASSED IN OS.NO.107/2007 ON THE FILE OF THE CIVIL JUDGE (JR.DN) H.D.KOTE. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: *** - 3 - HC-KAR NC: 2025:KHC:41923 RSA No. 523 of 2013 CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 29.11.2012 passed in R.A.No.312/2009 by the Learned Additional Senior Civil Judge and JMFC, Hunsur. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellants were the defendants, and the respondent was the plaintiff. 3. Brief facts, leading rise to the filing of this appeal, are as follows: The plaintiff filed a suit against the defendants for perpetual injunction. It is the case of the plaintiff that the plaintiff had purchased the suit schedule property under a - 4 - HC-KAR NC: 2025:KHC:41923 RSA No. 523 of 2013 registered sale deed dated 04.06.1975 for a valuable consideration, and since the date of purchase, the plaintiff is in peaceful possession and enjoyment over the suit schedule property. The name of the plaintiff appear in the revenue records, and the plaintiff is paying the land revenue of the suit schedule property. It is contended that on 18.05.2007 at about 10.00 a.m., the defendants made an attempt to trespass into the suit schedule property. The plaintiff requested the defendants not to cause any obstruction or interference over the suit schedule property. Despite request made by the plaintiff, the defendants did not give any heed to the request made by the plaintiffs. Hence, a cause of action arose for the plaintiff to file a suit for permanent injunction. Accordingly, prays to decree the suit. 3.1. Defendant No.1 filed a written statement denying the averments made in the plaint. It is contented that the suit schedule property was purchased by the - 5 - HC-KAR NC: 2025:KHC:41923 RSA No. 523 of 2013 father in the name of the plaintiff, and it is contented that the plaintiff was hardly aged 22 years old at the time of purchase. The suit schedule property is the joint family property of the plaintiff and the defendants and as per the family decision which took place on 05.03.1991, the suit property fell to the share of the defendants. It is also contented that the defendants are in peaceful possession and enjoyment over the suit schedule property. Hence, prays to dismiss the suit. 3.2. The Trial Court, based on the above said pleadings, framed the following issues: 1) Whether the plaintiff proves his lawful possession and enjoyment upon the suit schedule property as on the date of suit? 2) Whether plaintiff proves the unlawful interference? 3) Whether plaintiff is entitled for the relief of permanent injunction as prayed? 4) What order or decree? - 6 - HC-KAR NC: 2025:KHC:41923 RSA No. 523 of 2013 3.3. The plaintiff, to substantiate his case, examined himself as PW.1, examined two witnesses as PW.2 and PW.3, and marked 13 documents as Exs.P1 to P13. In rebuttal, defendant No.1 examined himself as DW.1, examined 2 witnesses as DW.2 and DW.3, and marked 7 documents as Exs.D1 to D7. The Trial Court, after recording the evidence of the parties, hearing both sides and 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 vide judgment dated 02.03.2009. 3.4. The plaintiff, aggrieved by the dismissal of the suit in O.S.No.107/2007, preferred an appeal in R.A.No.312/2009 on the file of the Learned Additional Senior Civil Judge and JMFC, Hunsur. - 7 - HC-KAR NC: 2025:KHC:41923 RSA No. 523 of 2013 3.5. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1) Whether the plaintiff had demonstrated before the Court that when he filed this suit he was in peaceful possession of the schedule property and was enjoying the same? 2) Whether the interference in the impugned judgment is called for? 3) What order? 3.6. The First Appellate Court, on hearing the parties and after re-appreciating the verbal and documentary evidence, answered point Nos.1 and 2 in the affirmative, and point No.3 as per the final order. The First Appellate Court allowed the appeal vide judgment dated 29.11.2012 and set aside the judgment and decree passed in O.S.No.107/2007 dated 02.03.2009 and consequently, the suit of the plaintiff was decreed with costs. By means of permanent injunction, the defendants or their authorized persons are restrained from interfering any manner with - 8 - HC-KAR NC: 2025:KHC:41923 RSA No. 523 of 2013 the plaintiff's peaceful possession and enjoyment of the suit schedule property. 3.7. The defendants, aggrieved by the judgment and decree passed in R.A.No.312/2009 dated 29.11.2012, filed this regular second appeal. 4. This Court, on 09.06.2015, admitted the appeal to consider the following substantial question of law: “Whether the First Appellate Court is justified in setting aside the judgment and decree of the trial Court and decreeing the suit filed by the respondent/plaintiff for injunction on the footing that one co-owner cannot maintain a suit for injunction against co-owner when the property has been divided under a family arrangement at Ex.P7?" 5. Heard the arguments of the learned counsel for the defendants. 6. Learned counsel for the defendants submits that that the suit schedule property was purchased by - 9 - HC-KAR NC: 2025:KHC:41923 RSA No. 523 of 2013 their father in the name of the plaintiff when he was hardly aged 22 years old. The said property was purchased out of surplus fund, and the suit schedule property is the joint family property of the plaintiff and the defendants and the partition was effected on 05.03.1991 amongst the plaintiff and the defendants. In the said partition, the suit schedule property fell to the share of the defendants and the defendants are in possession of the suit schedule property since the date of the partition. The said aspect was not adequately re-appreciated by the First Appellate Court, and committed an error in passing the impugned judgment. Hence, on these grounds, she prays to allow the appeal. 7. None appeared for the plaintiff. 8. Perused the records, and considered the submissions of the learned counsel for the defendants. - 10 - HC-KAR NC: 2025:KHC:41923 RSA No. 523 of 2013 9. Reg. Substantial Question of Law: The plaintiff filed a suit against the defendants for perpetual injunction contending that the plaintiff had purchased the suit schedule property under a registered sale deed dated 04.06.1975 for a valuable consideration of Rs.4,000/-. The vendor of the plaintiff delivered the possession of the suit schedule property in favour of the plaintiff. Based on the registered sale deed, the name of the plaintiff was entered in the revenue records as the owner and in possession. The defendants tried to interfere with the peaceful possession and enjoyment of the plaintiff over the suit schedule property. The plaintiff, to substantiate his case, produced the documents. Ex.P1 is the registered sale deed, which discloses that the plaintiff had purchased the suit schedule property under a registered sale deed for a valuable consideration, and the vendor had delivered the possession of the suit schedule property in favour of plaintiff. Ex.P2 is the RTC extract, which discloses that the plaintiff is the owner and in possession of the suit schedule - 11 - HC-KAR NC: 2025:KHC:41923 RSA No. 523 of 2013 property. Ex.P3 is the land revenue receipt, which discloses that the plaintiff had paid the land revenue for the suit schedule property. Ex.P4 is the Nil Encumbrance Certificate, which discloses that there was no encumbrance over the suit schedule property. Ex.P5 is the mutation extract, which discloses that the property was mutated in the name of the plaintiff based on the registered sale deed. Ex.P6 is a NCR issued by H.D.Kote police station. Ex.P7 is a Parikath hissa palupatti. Exs.P8 to P10 are the land revenue receipts. Exs.P11 and P12 are the counterfoil, which discloses that an amount of Rs.100/- and Rs.19,158/- was paid. Ex.P13 is the notice dated 19.01.2008 issued by the Cauvery Grameena Bank to the plaintiff calling upon the plaintiff to repay the loan obtained by him. The plaintiff also examined two witnesses as PW.2 and PW.3 to prove the possession over the suit schedule property. - 12 - HC-KAR NC: 2025:KHC:41923 RSA No. 523 of 2013 10. In the course of cross-examination, it was suggested to PW.1 that there was a partition between the plaintiff and the defendants in 1991 and in the said partition, the suit schedule property fell to the share of the defendants. The said suggestion was denied by PW.1. It was also suggested that the said property was purchased out of surplus fund of the family. Even the said suggestion was denied by PW.1. The plaintiff to prove the possession over the suit schedule property, examined two witnesses as PW.2 and PW.3, who have deposed that the plaintiff had purchased the suit schedule property under a registered sale date as per Ex.P1, and the vendor of the plaintiff had put the plaintiff in possession of the suit schedule property and the name of the plaintiff appear in the revenue records. 11. In rebuttal, defendant No.1 was examined as DW.1. He reiterated the written statement averments in the examination-in-chief and to prove the defence of the - 13 - HC-KAR NC: 2025:KHC:41923 RSA No. 523 of 2013 defendants, the defendants have produced the documents. Ex.D1 is the memorandum of the partition, which discloses that the partition was effected between the plaintiff and the defendants. Ex.D2 is the original registered sale deed (Ex.P1), Ex.D3 is the death ceremony invitation card which shows the death of Subbegowda i.e., the father of the plaintiff and the defendants, who passed away on 09.11.1984, Ex.D4 is the memorandum of partition, which discloses that the partition was effected between the plaintiff and the defendants, Ex.D5 is the counterfoil issued by the Cauvery Grameena Bank, Ex.D6 is the mutation extract and Ex.D7 is the declaration made by the plaintiff and defendant No.1. The defendants also examined two witnesses as DW.2 and DW.3, who have deposed that the defendants are in possession and enjoyment of the suit schedule property since the date of the partition i.e., in 1991. During the course of cross- examination, it was suggested to DW.1 that the property was purchased by the plaintiff under Ex.P1 (Ex.D2). To the - 14 - HC-KAR NC: 2025:KHC:41923 RSA No. 523 of 2013 said suggestion, DW.1 stated that the suit property was purchased out of joint family nucleus. To prove that there was a prior partition in 1991, the defendants except producing Ex.D4, the defendants have not produced any records to show that there was a family arrangement as per Ex.D4. 12. Admittedly, the property was purchased in the name of the plaintiff. Whether the property was purchased out of joint family nucleus or not? is a matter to be decided in a suit for partition and separate possession. It is settled law that in a suit for permanent injunction, the Court is required to consider whether the plaintiff is in possession of the suit schedule property, and interference as of the date of the institution of a suit. 13. Admittedly, the revenue records stands in the name of the plaintiff. There is a presumption under Section 133 of the Karnataka Land Revenue Act, 1964. - 15 - HC-KAR NC: 2025:KHC:41923 RSA No. 523 of 2013 The said presumption has not been rebutted by the defendants. The First Appellate Court, considering the entire evidence on record has rightly held that the plaintiff is in possession of the suit schedule property, and that the defendants tried to interfere with the plaintiff's peaceful possession and enjoyment over the suit schedule property. The plaintiff has produced the copy of the Parikath hissa palupatti marked as Ex.P7. The police have issued an endorsement as per Ex.P6. From the perusal of Ex.P6, it is clearly discloses that the defendants tried to interfere with the plaintiff's peaceful possession and enjoyment over the suit schedule property. It is settled law that no injunction can be granted against the co-owner. 14. Admittedly, in the instant case, the defendants have taken a defence in the written statement that the said property is purchased out of joint family nucleus. As observed above, whether the said property was purchased out of joint family nucleus or not? is a matter to be - 16 - HC-KAR NC: 2025:KHC:41923 RSA No. 523 of 2013 decided in the separate suit, but not in the suit for bare injunction. The First Appellate Court has rightly recorded its finding that the plaintiff is in peaceful possession and enjoyment over the suit schedule property, and the defendants tried to interfere with the plaintiff's peaceful possession over the suit schedule property. The First Appellate Court has rightly passed the impugned judgment. I do not find any error in the impugned judgment. In view of the above discussion, I answer substantial question of law in the affirmative. 15. Accordingly, I proceed to pass the following: ORDER i. The Regular Second Appeal is dismissed. ii. The judgment and decree passed by the First Appellate Court in R.A.No.312/2009 by the learned Additional Senior Civil - 17 - HC-KAR NC: 2025:KHC:41923 RSA No. 523 of 2013 Judge and JMFC, Hunsur is hereby confirmed. iii. No order as to the cost. In view of the dismissal of the appeal, pending IAs, if any, stand disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SSB