- 1 - HC-KAR NC: 2025:KHC:32512 RFA No. 1953 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA REGULAR FIRST APPEAL NO.1953 OF 2023 (INJ) BETWEEN: Y. MANJUNATH S/O YALLAPPA, AGED ABOUT 42 YEARS, R/AT NO.2, 13TH CROSS, SIDEDAHALLI, NAGASANDRA POST, BENGALURU-560073. …APPELLANT (BY SRI CHETHAN A.C., ADVOCATE) AND: SMT. SHIVAMMA @ RUDRAMMA W/O RAJANNA, AGED ABOUT 56 YEARS, R/AT NO.1, 13TH CROSS, SIDEDAHALLI, YESHWANTAPURA HOBLI, BENGALURU NORTH TALUK, NAGASANDRA POST, BANGALORE-560073. …RESPONDENT (BY SRI A. SAMPATH, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 19.09.2023 PASSED IN O.S.NO.7755/2019 ON THE FILE OF XX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR PERMANENT INJUNCTION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:32512 RFA No. 1953 of 2023 CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA ORAL JUDGMENT The present appeal is preferred by the defendant assailing the judgment and decree dated 19.09.2023 passed in OS No. 7755/2019 on the file of the XX Additional City Civil and Sessions Judge (CCH-32), Bengaluru, (hereinafter referred to as ‘the trial Court’). By the judgment and decree, the trial Court decreed the suit, restrained the defendant by way of permanent injunction from interfering with the plaintiff's peaceful possession and enjoyment of the suit property. 2. The plaintiff is the wife of Rajanna. The plaintiff claims title and possession over the suit property based on a registered sale deed dated 05.08.1999-Ex.P2 executed by Gangamma as the GPA of G.Yallappa. It is stated that there was a palupatti (partition) on 10.04.1989 between Rajanna and Yallappa, under which the suit property fell to the share of Yallappa and later he has sold the suit property to the plaintiff through his GPA. It is the case of - 3 - HC-KAR NC: 2025:KHC:32512 RFA No. 1953 of 2023 the plaintiff that from that day onwards the plaintiff is in possession and enjoyment of the suit property. 3. The case of the defendant is that the suit property is the joint family property jointly owned by Rajanna and Yallappa. Further that the defendant has filed O.S.7860/2014 for partition of 13 guntas in Sy. No. 105/3 and the schedule property of 5 guntas is a part of larger extent of 13 guntas. The defendant denied partition and contended that the documents under which the plaintiff claim possession is fabricated. 4. Before the trial Court, the plaintiff examined the General Power of Attorney Holder who is none other than her husband as PW1 and marked documents at Exs. P1 to P7. The defendant examined himself as DW1 and marked documents at Exs.D1 to D10. 5. The trial Court upon consideration of the oral and documentary evidence observed that though the documentary evidence indicate that the suit for partition - 4 - HC-KAR NC: 2025:KHC:32512 RFA No. 1953 of 2023 and separate possession in respect of the schedule property is pending consideration, however Ex.P2-the registered sale deed and Exs.P3, P4-the encumbrance certificates and Ex.P5-the RTC stand in the name of the plaintiff and arrived at a conclusion that these documents have presumptive value with respect to the possession of the suit property and, by the impugned judgment and decree decreed the suit. 6. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 7. Learned counsel appearing for the appellant submits that the alleged palupatti dated 10.04.1989 was never produced before the Court. PW1 in his cross- examination has categorically admitted that there was no partition. Rajanna himself had filed O.S.368/2001 which was withdrawn for want of jurisdiction and later filed O.S.No. 8570/2004 seeking partition, which clearly shows - 5 - HC-KAR NC: 2025:KHC:32512 RFA No. 1953 of 2023 that there was no partition effected earlier. It is argued that the suit schedule property forms part of 13 guntas in Sy. No.105/3, which is the joint family property of Rajanna and Yallappa. Hence, the plaintiff cannot claim exclusive right or possession over the suit property. It is contended that Ex.P2-the alleged sale deed is executed by Gangamma as a GPA holder, but neither the GPA was produced nor was Gangamma examined. Without proving the authority under the GPA, the sale deed is not valid in law. Further it is argued that the RTC extracts and the encumbrance certificates placed reliance by the plaintiff would not confer right, title or possession over the suit property. It is further argued that the defendant has filed O.S.7860/2014 for partition of the very schedule property and when the partition suit was pending, suit for injunction by one alleged co-owner is not maintainable. It is submitted that the injunction cannot be granted against a co-owner unless exclusive possession is established. It is submitted that the plaintiff being unable to prove - 6 - HC-KAR NC: 2025:KHC:32512 RFA No. 1953 of 2023 exclusive possession is not entitled for permanent injunction. 8. Learned counsel for the respondent submits that the palupatti was entered on 10.04.1989 between Rajanna and Yallappa under which the suit property fell to the share of Yallappa. The registered sale deed dated 05.08.1999 (Ex. P2) is executed by the GPA Gangamma. Yallappa has not challenged the sale deed executed in favour of the plaintiff, but has been challenged by his son and his inaction amounts to acceptance of transfer. It is submitted that Exs.P3 to P5-the revenue records clearly indicate that the plaintiff is in possession of the suit property. Taking through the evidence of Manjunath (defendant in the present suit) in O.S.7860/2014 which is marked at Ex.P6, it is submitted that Manjunath has categorically admitted that as per Ex.P2-the father of defendant was having 6.5 guntas of land in Sy. No. 105/3 which clearly indicate that there was a partition effected. The learned counsel takes the Court through the further - 7 - HC-KAR NC: 2025:KHC:32512 RFA No. 1953 of 2023 examination of PW1 (Manjunath) under Ex. P6 and contends that the defendant has admitted that there are rented houses in 6.5 guntas of land which belonged to Rajanna. It is contended by the respondent that if the entire cross-examination of the defendant is considered, it establishes that there was a partition effected between Rajanna and Yallappa. Learned counsel submits that evidence of PW1 and the documentary evidence establish the plaintiff’s possession. 9. Having heard the learned counsel for the parties, the point that arises for consideration in this appeal is: “Whether the trial Court was justified in granting an order of permanent injunction in the present facts and circumstances of the case?” 10. The relationship between the parties is not in dispute. The family genealogical tree is culled out as under:- - 8 - HC-KAR NC: 2025:KHC:32512 RFA No. 1953 of 2023 Channarayappa Chikkagangaiah Doddagangaiah Rajanna Yallappa Shivamma (Plaintiff) Manjunath Madhusudha Chitrakala (Def.) 11. The foundation of plaintiff’s claim rests on the alleged partition deed dated 10.04.1989. However the plaintiff has not produced the palupatti as alleged. On the contrary, evidence on record, particularly the admission of PW1 in his cross-examination admits that no partition has been effected in 13 guntas of land in Sy. No. 105/3. Added to this, the pleadings in O.S.No. 8570/2004 filed by Rajanna wherein at para 6 it is averred as under: “10. The plaintiff further submits that in the property bearing Survey No.105/3 there is a total extent of 1 acre 10 guntas exclusive of 2 guntas of kharab. Out of that except 35 guntas which is the - 9 - HC-KAR NC: 2025:KHC:32512 RFA No. 1953 of 2023 vacant land the rest of the property there is a house property being given to the plaintiff as well as the first defendant. The plaintiff has been in possession of the same which is measuring to the extent of 13 guntas. At the same time the defendants No.2 to 6 have been in possession and there is a house which is belonging to the defendants No.2 to 6. But in so far as the rest of the property which is measuring to the extent of 35 guntas which has been more fully described in the schedule hereunder and hereinafter called as the schedule property for the sake of convenience has been intact and there is no partition in the said property.” (emphasis supplied) 12. Though the suit of Rajanna was in respect of agricultural property bearing Sy. No. 105/3 to the extent of 35 guntas, in para 10 it has been categorically stated that out of 1 acre 10 guntas in Sy. No. 105/3 except 35 guntas it is a vacant land and in the rest of the property there is a house property given to the plaintiff’s husband as well as to the first defendant. In the entire plaint of the suit filed by Rajanna there is no mention about the sale deed or the partition being executed between the - 10 - HC-KAR NC: 2025:KHC:32512 RFA No. 1953 of 2023 plaintiff’s husband and Yallappa. In the absence of any cogent proof of partition, the plaintiff cannot claim ownership or exclusive possession. The sale deed executed on 05.08.1999-Ex.P2 by Gangamma under a GPA cannot be a basis for establishing title or exclusive possession of title unless the GPA itself is produced and proved, neither the GPA holder who executed the sale deed has been examined. In a joint family property until a partition is effected, every member of the family is assumed to be in possession. An injunction against a co- owner is not maintainable unless the plaintiff establishes her exclusive possession over the suit property. Though the trial Court relied upon RTC and the encumbrance certificates standing in the plaintiff’s name, it is well settled that mere entry of the name in the revenue records would not confer title or ownership or prove the possession in respect of the property concerned. Though they carry a presumptive value it is only for a limited extent of paying revenue to the Government. Suit is - 11 - HC-KAR NC: 2025:KHC:32512 RFA No. 1953 of 2023 pending for partition and separate possession. The earlier suit initiated by the plaintiff indicates that there was no partition effected between the parties. In these circumstances, the trial Court was not justified in granting a permanent injunction against a co-owner by placing reliance upon Exhibit P2-the sale deed, ignoring the absence of proof of partition, the admission of PW1 and the contents of the partition suit. The point framed for consideration is answered accordingly and this court pass the following: ORDER (1) The Regular First Appeal is allowed. (2) The judgment and decree of the trial Court is set aside. (3) The suit OS No. 7755/2019 is hereby dismissed. It is needless to observe that any observation made in this appeal would not come in the way of suit - 12 - HC-KAR NC: 2025:KHC:32512 RFA No. 1953 of 2023 O.S.7860/2014 to be decided independently de hors the findings recorded in this appeal. Sd/- ____________________ JUSTICE K.S. HEMALEKHA CKL List No.: 1 Sl No.: 24