Dismissed

Sri Balaraj v. Smt Mangamma

Karnataka HC25 Sept 2013RSA/1333/2010

Case brief

AI extract

What is this about?

The High Court dismissed the regular second appeal filed by a defendant/appellant challenging an injunction decree. The appellant claimed possession based on an unproduced oral agreement, while the respondent proved ownership via a registered sale deed. The court held no substantial question of law arose.

What did the court decide?

The second appeal was dismissed holding that no substantial question of law arose.

Sri Balaraj Vs Smt Mangamma — Partition | Karnataka HC (2013)

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RSA No.1333/2010

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 25^TH DAY OF SEPTEMBER, 2013 BEFORE

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THE HON’BLE MR. JUSTICE A.S. PACHHAPURE REGULAR SECOND APPEAL No.1333 OF 2010

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BETWEEN:

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SRI BALARAJ S/O SRI VENKATASWAMY AGED ABOUT 42 YEARS PITCHAHALLI VILLAGE KETHAGANAHALLY POST KAMASAMUDRAM HOBLI BANGARPET TAUK KOLAR DISTRICT-563 101.

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... APPELLANT

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(BY SRIYUTHS: B VEERAPPA & MURALI N, ADVS)

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AND:

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SMT MANGAMMA W/O SRI MUNISWAMY AGED ABOUT 59 YEARS R/O PITCHAHALLI VILLAGE KETHAGANAHALLI POST KAMASAMUDRAM HOBLI BANGARPET TALUK KOLAR DISTRICT.

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... RESPONDENT

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 20.02.2010 PASSED IN RA NO.61/2001 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN.), K.G.F., DISMISSING THE APPEAL AND CONFIRMING THE

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RSA No.1333/2010

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JUDGMENT AND DECREE DATED 09.03.2001 PASSED IN OS NO.288/94 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.), K.G.F.

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THIS RSA COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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The appellant has challenged the judgment and decree of injunction granted by the Trial Court and dismissal of his appeal by the First Appellate Court.

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The facts relevant for the purpose of

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this appeal are as under:

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Parties will be referred as per their rank before the Trial Court for the sake of convenience.

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The appellant is defendant in the Trial Court whereas respondent is the plaintiff who instituted the suit for injunction stating that she is in actual possession of the suit property bearing Sy.No.26/3 measuring 1 acre 7 guntas and

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RSA No.1333/2010

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that she has purchased the suit property from T Perumalaiah under a registered sale deed dated 25.09.1993. She claims that since from the date of purchase, her name is entered in the records and she is in peaceful possession and enjoyment of the suit property and as there was an obstruction to her possession, she instituted the suit to restrain the defendant from causing any obstruction to the peaceful possession and enjoyment of the suit property.

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The defendant appeared before the Trial Court and filed his written statement and claims that since from 07.11.1992 he has been in possession of the suit property on the basis of an agreement of sale executed by T Perumalaiah, the erstwhile owner and since from the date of agreement, he is in possession of the suit property, hence, he has sought for dismissal of the suit.

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RSA No.1333/2010

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The Trial Court framed the issues and

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permitted the parties to lead the evidence. The plaintiff examined PWs.1 to 4 and in their evidence Exs.P1 to P10 were marked. The defendant got examined himself as DW1 and a witness as DW2 and documents Exs.D1 and D2 were marked. The Trial Court after hearing the counsel for parties and on appreciation of the evidence on record, decreed the suit of plaintiff-respondent holding that she has been in lawful possession of the suit property as on the date of suit and that there was an obstruction to her possession. Aggrieved by the judgment and decree, the defendant preferred an appeal in RA No.61/2001 and the said appeal came

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to be dismissed by the First Appellate Court vide judgment and decree dated 20.02.2010. Aggrieved by the concurrent findings of the Courts below, the present appeal is filed.

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RSA No.1333/2010

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I have heard learned Counsel for the

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appellant.

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It is the submission of learned

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Counsel that appellant is in possession of the suit property on the basis of agreement of sale executed by T Perumalaiah on 07.11.1992 and since then, the appellant is in possession of the suit property. Hence, he submits that the Courts below committed an error in granting a decree of injunction.

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Perusal of the material placed on

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record reveals that the plaintiff has produced the original sale deed Ex.P2 executed by T Perumalaiah in favour of the plaintiff dated 25.09.1993. In pursuance of the sale deed, an entry was made in the land revenue records at Ex.P3 and the plaintiff has produced record of rights at Exs.P5 to P7. Ex.P9 is the Patta receipt and Ex.P10 is the receipt for repayment of loan amount. Perusal of the sale deed

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RSA No.1333/2010

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reveals that it is in the name of plaintiff. It appears in the records that there is presumption in law that a person in whose name the property stands is in possession of the property. That apart, PWs.1 to 4 have stated in their evidence that it is plaintiff who is in possession of the suit property since from the date of sale transaction.

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The appellant who is defendant in the

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Trial Court claims the possession of suit property on the basis of agreement of sale said to have been executed by erstwhile owner on 07.11.1992. The defendant has not produced the said sale agreement. Ex.D1 is the endorsement whereas Ex.D2 is complaint lodged before the police. These documents produced does not show the possession of defendant over the suit property. Except the oral version of defendant that he has been in possession of the suit property on the basis of agreement of sale, in

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RSA No.1333/2010

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the absence of that agreement before the Court, rather it is difficult to accept the defence. It is for this reason that the Courts below have come to a conclusion that the plaintiff has proved lawful possession of the suit property as on the date of suit. The submission made by the learned Counsel for the appellant do not reveal any substantial question of law for consideration. If the appellant has any right over the suit property on the basis of agreement of sale in respect of which the suit was instituted in OS No.724/1993, he is entitled to enforce the rights which accrue in his favour on the basis of said agreement.

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With these observations as no substantial question of law arise for consideration, the appeal fails and it is accordingly dismissed.

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*bgn/-

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Sd/JUDGE

Sri Balaraj v. Smt Mangamma

Case brief

What is this about?

What did the court decide?

Sri Balaraj v. Smt Mangamma

Case brief

What is this about?

What did the court decide?

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