- 1 - HC-KAR NC: 2025:KHC:39536 RSA No. 303 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 303 OF 2013 (INJ-) BETWEEN: SMT. JAYAMMA W/O LATE THIPPESWAMY, AGED ABOUT 37 YEARS, HOUSE HOLD WORK, R/O BEHIND BASAVESHWARA BODY BUILDERS, NEAR TOLLGATE, HOLALKERE ROAD, CHITRADURGA TOWN-577501. …APPELLANT (BY SRI. K R LINGARAJU, ADV., & SMT. USHA LINGARAJU, ADV.) AND: AJJAPPA S/O JAGALOORAPPA, AGED ABOUT 57 YEARS, Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:39536 RSA No. 303 of 2013 EMPLOYEE, KARNATAKA AGRO FOOD PRODUCTS LTD, HOLALKERE ROAD, CHITRADURGA-577501. …RESPONDENT (BY SRI. B M SIDDAPPA.,ADVOCATE) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 3.11.2012 PASSED IN R.A.NO.9/2010 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 12.4.2010 PASSED IN OS.NO.233/2004 ON THE FILE OF THE II ADDL. CIVIL JUDGE (JR.DN) & JMFC., CHITRADURGA. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: *** - 3 - HC-KAR NC: 2025:KHC:39536 RSA No. 303 of 2013 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 03.11.2012 passed in R.A.No.9/2010 by the learned I Additional Senior Civil Judge, Chitradurga and the judgment and decree dated 12.04.2010 passed in O.S.No.233/2004 by the Learned II Additional Civil Judge, (Jr. Dvn.), Chitradurga. 2. For convenience, the parties are referred to, as per their rankings before the trial Court. The appellant was the plaintiff, and the respondent was the defendant. 3. Brief facts, leading rise to the filing of this appeal, are as follows: The plaintiff filed a suit against the defendant for perpetual injunction restraining the defendant from - 4 - HC-KAR NC: 2025:KHC:39536 RSA No. 303 of 2013 interfering, and obstructing in peaceful possession and enjoyment over the suit schedule property. It is the case of the plaintiff that the suit property consists of a cement sheet house along with vacant site bearing property No.3352 assessment No.5139 measuring 40 feet north- south and 50 feet east-west, situated in 14th ward near Tollgate, Halalkere Road, Chitradurga. It is contended that the plaintiff had constructed a house measuring 30 x 40 feet and the remaining portion of vacant site has been left for constructing a compound wall. It is contended that the plaintiff is residing in the said suit house along with her family members, and paying Kandayam to the CMC Chitradurga. It is contended that the defendant is the brother-in-law of her husband. The defendant has no right, title or interest over the suit schedule property. After the demise of her husband, the defendant is making the hectic efforts to occupy the property without any right, title or interest. The plaintiff got advised the defendant through the elders, but the same went in vain. Hence, a - 5 - HC-KAR NC: 2025:KHC:39536 RSA No. 303 of 2013 cause of action arose for the plaintiff to file a suit for perpetual injunction. Accordingly, prays to decree the suit. 3.1. The defendant filed a written statement denying the averments made in the plaint. It is denied that the plaintiff had constructed the residential house in the suit schedule property, and he is in peaceful possession and enjoyment over the suit schedule property. It is denied that the defendant has no right, title or interest over the suit schedule property. It is contended that there is no cause of action to file a suit. The defendant and the husband of the plaintiff, namely Tippeswamy are the only brothers born to Jagalurappa. It is contended that the defendant himself, and his brother effected a partition in the presence of elders on 17.06.1997. In the said partition, the suit property fell to the share of the defendant. The defendant is in possession and enjoyment over the suit schedule property. The plaintiff is aware about the partition effected between the defendant and - 6 - HC-KAR NC: 2025:KHC:39536 RSA No. 303 of 2013 her husband. Hence, on these grounds, 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 that she is lawful owner in possession of suit schedule property as on date of suit? 2) Whether the plaintiff further proves that defendant is interfering in her lawful possession and enjoyment by trying to construct and occupy in the suit schedule property? 3) Whether the plaintiff is entitle for the relief claimed? 4) What order or decree? 3.3. The plaintiff, to substantiate her case, examined herself as PW.1, examined two witnesses as PW.2 and PW.3, and marked 9 documents as Exs.P1 to P9. In rebuttal, the defendant examined himself as DW.1, examined 3 witnesses as DW.2 to DW.4, and marked 8 documents as Exs.D1 to D8. The Court Commissioner was - 7 - HC-KAR NC: 2025:KHC:39536 RSA No. 303 of 2013 appointed, and he was examined as CW.1, and marked 10 documents as Exs.C1 to C10. 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 vide judgment dated 12.04.2010. 3.4. The plaintiff, aggrieved by the dismissal of the suit in O.S.No.233/2004, preferred an appeal in R.A.No.9/2010 on the file of the Learned I Additional Senior Civil Judge, Chitradurna. 3.5. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1) Whether the appellant/plaintiff proved that, she is in lawful possession and enjoyment of suit property for which defendant caused obstruction? - 8 - HC-KAR NC: 2025:KHC:39536 RSA No. 303 of 2013 2) Whether the judgment and decree of the trial Court is erroneous, illegal and called for interference of this Court? 3) What order? 3.6. The First Appellate Court, on hearing the parties and after re-appreciating the verbal and documentary evidence, answered point No.1 partly in the affirmative, point No.2 in the negative, and point No.3 as per the final order. The appeal was dismissed vide judgment dated 03.11.2012. The plaintiff, being aggrieved by the impugned judgments, filed this regular second appeal. 4. This Court, on 05.07.2019, admitted the appeal to consider the following substantial question of law: “Whether the suit for injunction filed by a member of joint family against another member of the joint family is maintainable?" 5. Heard the arguments of the learned counsel for the plaintiff, and also learned counsel for the defendant. - 9 - HC-KAR NC: 2025:KHC:39536 RSA No. 303 of 2013 6. Learned counsel for the plaintiff submits that there is no dispute regarding the title of the plaintiff over the suit schedule property, and that the plaintiff had constructed a house over the suit schedule property to an extent of 40 x 30 feet and the remaining portion of the suit schedule property was kept open for construction of a compound wall. He submit that the defendant had no right, title or interest over the suit schedule property. He submits that both the Courts below have failed to appreciate the admission of the defendant regarding the ownership of the plaintiff over the suit schedule property and hence passed the impugned judgments. He submits that the impugned judgments passed by the Courts below are arbitrary, erroneous and perverse. Hence, on these grounds, he prays to allow the appeal. 7. Per contra, learned counsel for the defendant submits that in 1997, there was a partition between the defendant and the husband of the plaintiff, and in the said - 10 - HC-KAR NC: 2025:KHC:39536 RSA No. 303 of 2013 partition, the suit schedule property fell to the share of the defendant, and the defendant is in peaceful possession and enjoyment over the suit schedule property. He also submit that PW.1 in the course of cross-examination admitted that the defendant is in possession of the portion of the suit schedule property. He also submit that the measurement of the suit schedule property shown in the plaint is 50 x 40, whereas in view of the admission of PW.1 that the defendant is in possession of portion of suit schedule property, the plaintiff has not filed the suit for recovery of possession. He submit that in a suit for perpetual injunction, the Court is required to consider the possession of the plaintiff as of the date of the suit. He submit that as of the date of the suit, the plaintiff was not in possession of the entire extent of the suit schedule property, and both the Courts below were justified in passing the impugned judgments. Hence, on these grounds, he prays to dismiss the appeal. - 11 - HC-KAR NC: 2025:KHC:39536 RSA No. 303 of 2013 8. Perused the records, and considered the submissions of the learned counsel for the parties. 9. Reg. Substantial Question of Law: The plaintiff filed a suit against the defendant for a relief of perpetual injunction on the ground that the suit schedule property was owned and possessed by her husband and after his demise, the plaintiff became the absolute owner of the suit schedule property. The plaintiff constructed the building to an extent of 40 x 30 feet and the remaining portion of the site was kept open for the construction of a compound wall. The defendant has no right, title or interest over the suit schedule property. The plaintiff to substantiate her case, examined herself as PW.1 and she reiterated the plaint averments in the examination-in-chief and to prove her possession over the suit schedule property, produced the documents. Ex.P1 is the assessment register extract, Exs.P2 to P4 are the self- assessment declaration, Exs.P5 and P6 are the tax paid - 12 - HC-KAR NC: 2025:KHC:39536 RSA No. 303 of 2013 receipts, Ex.P7 is the enumeration card, Ex.P8 is the election identity card, and Ex.P9 is a certified copy of the sale deed. In the course of cross-examination, PW.1 has pleaded ignorance regarding the measurement of the alleged suit schedule property, so also the property of the defendant. She admitted that her father had filed a complaint in 2003 against the defendant alleging the charge of murder of her husband and improper division of family properties and also admitted that the police have filed a 'B' final report. She pleaded ignorance regarding the unregistered partition effected between the husband of the plaintiff and the defendant. She admitted that the Municipal Authorities have not measured the suit schedule property while effecting Khatha in her name, but have mentioned the measurement as 50 x 40 feet. She also admitted that the defendant is in possession of the portion of the suit schedule property. - 13 - HC-KAR NC: 2025:KHC:39536 RSA No. 303 of 2013 10. The plaintiff examined one Basavarajappa as PW.2, who has stated that the plaintiff was in unauthorized possession of the suit schedule property and constructed a residential house measuring 40 x 30 feet. During the cross-examination of PW.2 he pleaded ignorance regarding municipal needs and urged partition deed. The plaintiff also examined one witness as PW.3, who deposed in the same line of PW.2. During the cross- examination of PW.3, he admitted that the house was constructed by the defendant and his brother Thippeswamy much before the marriage of the plaintiff. 11. In rebuttal, the defendant examined himself as DW.1 and he reiterated the written statement averments in the examination-in-chief, and to prove that there was a prior partition between the husband of the plaintiff and the defendant, produced the records. The partition deed was marked as Ex.D2. The defendant also produced the katha extract marked as Ex.D1, which discloses that the - 14 - HC-KAR NC: 2025:KHC:39536 RSA No. 303 of 2013 defendant is in possession and enjoyment over the suit schedule property. Ex.D3 is the letter of consent, Ex.D4 is the property register extract, Exs.D5 to D7 are the tax paid receipts, and Ex.D8 is the assessment register extract. The defendant also examined three witnesses as DW.2 to DW.4 to prove his possession over the suit schedule property, and also to prove that there was a prior partition between the husband of the plaintiff and the defendant and in the said partition, the suit schedule property fell to the share of the defendant. During the pendency of the suit, the Court Commissioner was appointed. The Court Commissioner, after issuing a notice to both the parties, executed a Commissioner warrant, and submitted a report. The plaintiff filed her objections to the Commissioner's report. The Court Commissioner was examined as CW.1. He deposed that he visited the spot on 13.08.2005 for execution of the Commissioner's work. The Court Commissioner had issued a notice to the plaintiff, and the defendant intimating the date of inspection of the - 15 - HC-KAR NC: 2025:KHC:39536 RSA No. 303 of 2013 spot and he carried out the work as per the memo of instructions furnished to him, and he has submitted a report marked as Ex.C2, Ex.C3 is the spot mahazar, Ex.C4 is a rough sketch, Ex.C5 is the neat sketch, Exs.C6 and C7 are the answers to the memo of instructions filed by the plaintiff and the defendant, Ex.C8 is the notice copy, Exs.C9 and C10 are the COP receipts. 12. From the perusal of the entire evidence on record, produced by the parties, it is clear that the plaintiff is in possession of the portion of the suit schedule property. The plaintiff admitted that the defendant is in possession of the portion of the suit schedule property. Admittedly, the suit is for perpetual injunction. It is well settled that in a suit for perpetual injunction, the Court is required to consider the possession and interference as of the date of the suit. - 16 - HC-KAR NC: 2025:KHC:39536 RSA No. 303 of 2013 13. Admittedly, in view of the admission of the plaintiff in the cross-examination that the defendant is in possession of the portion of the suit schedule property, the plaintiff has failed to prove that the plaintiff is in possession of the entire suit schedule property. The trial Court has rightly recorded its finding that the plaintiff has failed to prove her possession over the entire suit schedule property, and alleged interference, and rightly dismissed the suit of the plaintiff. The first appellate Court, after re-appreciating the entire evidence on record has rightly affirmed the judgment and decree passed by the trial Court. 14. Admittedly, there was a partition between the husband of the plaintiff, and the defendant. In the said partition, the suit schedule property fell to the share of the defendant and to substantiate the defence of the defendant, the defendant has produced the partition deed marked as Ex.D2. On the basis of Ex.D2, the name of the - 17 - HC-KAR NC: 2025:KHC:39536 RSA No. 303 of 2013 defendant was entered in the records. It is settled law that no injunction can be granted against the co-owner. Admittedly, in the instant case, there was a prior partition between the husband of the plaintiff and the defendant. Hence, both the courts below were justified in passing the impugned judgments. I do not find any error in the impugned judgments. As observed above, as there was a prior partition between the husband of the plaintiff and the defendant, the question of answering substantial question does not arise for consideration. 15. Accordingly, I proceed to pass the following: ORDER i. The Regular Second Appeal is dismissed. ii. The judgments and decrees passed by the courts below are hereby confirmed. - 18 - HC-KAR NC: 2025:KHC:39536 RSA No. 303 of 2013 iii. No order as to the cost. In view of the disposal of the appeal, I.A.No.1/2013, does not survive for consideration. Accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SSB