The High Court allowed an appeal filed against an appellate decree that had set aside a trial court's judgment on a partition suit. The original suit sought a permanent injunction to protect the plaintiff's possession of a specific property allotment from boundary disputes.
Suit of the plaintiff is decreed; appeal allowed; no order as to cost.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30th DAY OF NOVEMBER, 2020
BEFORE
THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO
R.S.A.No.3003 OF 2010
BETWEEN:
Smt. Manjula W/o. Krishna, Aged about 40 years, R/o. Hanumanthapura Village, Athagur Hobli, Maddur Taluk, Mandya District – 571428. ...Appellant
(By Sri.K.N.Nitish, for Sri. K.V.Narasimhan Advocates Appeared through physical hearing)
AND:
Both are residents of Hanumanthapura village, Athagur Hobli, Maddur Taluk, Mandya District – 571428. …Respondents (By Sri.H.C.Shivaramu, Advocate
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for R1 and R2 Appeared through Video Conferencing)
This RSA is filed u/S 100 of CPC., against the judgment and decree dated:20.07.2010 passed in R.A.No.66/2007 on the file of the Civil Judge (Sr.Dn.), Maddur, allowing the appeal and setting aside the judgment and decree dated 13.09.2007 passed in O.S.No.184/2005 on the file of the Addl. Civil Judge (Jr.Dn.) and J.M.F.C., Maddur.
This RSA Coming on for dictation this day, the Court delivered the following:
JUDGMENT
Appeal is directed against the judgment passed in R.A.No.66/2007 dated 20.07.2020, by Civil Judge (Sr.Dn.), Maddur, wherein the appeal came to be allowed by setting aside the judgment and decree passed in O.S.No.184/2005 dated 13.09.2007 by Addl. Civil Judge (Jr.Dn.) & JMFC, Maddur.
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at Hanumanthapura Village, Athagur Hobli, Maddur Taluk. It is claimed that earlier the schedule property along with other properties fell to the share of the plaintiff by a decree granted in favour of the plaintiff in a suit filed in O.S.No.473/1989 for partition and maintenance. The said suit was filed by plaintiff herein and her minor child against defendant No.2 herein being the elder member of the family. The said matter ended in compromise. Along with suit schedule property, the plaintiff got four more items of the properties. Out of which I am concerned with ‘C’ schedule properties.
“Being bounded on
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East by: land of second defendant; West by: land of H.L.Nagaraju; North by: land of Ramanna and South by: land of Kodi gowda.
schedule property is exclusively allotted to her and her son, the defendants are dealt upon troubling and interfering with the possession of the schedule property and seeks indulgence of the court by an order of permanent injunction to restrain the defendants from interfering with the possession and enjoyment of the property.
filed a common written statement. Their plea is such, the suit proceedings in O.S.No.473/1989 ended in compromise which are not in dispute. The granting of property to the extent of 01 acre 30 guntas in favour of plaintiff – Manjula also not disputed. However, their
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grievance is that the boundaries more particularly, the western and northern side of the suit schedule property boundaries are wrongly mentioned and if the plaintiff is allowed for same boundaries, it would be going beyond extent of 01 acre 30 guntas and plaintiff will be in un-lawful enjoyment of their properties. No doubt, by virtue of decree, she is entitled for entries. Therefore, according to the defendants northern entries required to be altered and western , incidentally it is not suggests that whose land is there either on the northern side or on the western side . With this pleadings, the trial court framed the following issues:
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IV. What order or decree?”
6. The learned trial Judge was accommodated
with oral evidence of PW-1 to 3 and documentary evidence of Exs.P1 to P5 on behalf of the plaintiff and on behalf of defendants oral evidence of DW.1 and documentary evidence of Exs.D1 and 8 were produced.
change only to enjoy wrongful gains out of properties for which they are not entitled. The land given to the plaintiff even as per topography is perfectly correct. There is no difference or unlawful claim against the schedule property. He also submitted that the defendants has taken false assertion on the basis of the admission of the plaintiff regarding the mortgage.
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8. Learned counsel Sri.H.C.Shivaramu for the
defendants would submit that the essential ingredient for the relief of injunction is clean hand which means persons who approach the Court should come with clean hands and his conduct must be free from suppress. He would further submit that the learned trial judge is consciously observed a admission of the plaintiff that the 2nd defendant is in possession rather land was mortgaged to him and possession is admitted. The possession is the hall mark of essentials ingredient in order to claim the relief of injunction. The possession of a material object is the continuing exercise of a claim to the exclusive use of it. It involved two principles. One is corpous possessionis and another is animus possidendi . Corpous possessionis related to very object or subject matter of the possession which the person claims that he is in possession. The latter one is
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mental element and the intention to hold the
thing as the owner of it. A person with lawful possession can have a right of feeling that he is entitled to possession and had may ground to continue his possession to others.
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over through usufructuary mortgage. Now, I am not questioning the same. If such mortgage was or is in existence, the 2nd defendant would have been hundred percent sure about the mortgage deed pleaded but he did not whisper anything about the same. Under the circumstances of the case, it is not the pleading of the 2nd defendant that she is in possession of the suit schedule property. Assuming in the mind, the sketch in the form of rectangle on the east is property of 2nd defendant; on the west is land of H.L.Nagaraju; on the north is by land of H.L.Raju and on the South is land of Kodigowda. Very contention of the defendants is northern boundaries and western boundaries are wrongfully mentioned and if the plaintiff is allowed to the present boundaries, admittedly, he is not in possession of western side and said Nagaraju neither questioned nor come before the Court and same is
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applied to the Ramanna also. Then, is it because of the defendant defending on behalf of other person in which he is not interested, he could have been asserted that the plaintiff would come in search of over stepping the land on the eastern side. Whether the sketch authorizes the sketch which is mentioned in this connection.
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make statement beyond the 1991-92 of Evidence Act when there is no written document to show the particular boundaries. It was a suit for rectification, what was wrong in respect of extent of land or survey number or which boundaries are wrongly mentioned, in all these denial by the defendants is the state of affairs and passing the decree is erroneous rather than series of lapse.
Sd/JUDGE
HJ/JS
3 issues framed by the court
Whether the trial court correctly allowed the plaintiff's suit for permanent injunction enforcement despite alleged boundary disputes.
Whether the appellate court erred in setting aside the trial court's decree regarding the suit property.
Whether the admission regarding mortgage and possession of neighboring land affects the plaintiff's claim to a specific schedule property.
1 provisions across 1 enactments
Smt. Manjula W/o. Krishna
Sri. H.L.Raju S/o. H.Lingegowda
Sri. Krishna S/o. H.Lingegowda
N.K. Sudhindr Rao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
