This court dismissed the regular second appeal filed against a judgment allowing an appeal in a civil suit for permanent injunction. The court held that discrepancies regarding property measurements constitute a question of fact, rendering the appeal inadmissible under Section 100 of the CPC.
The regular second appeal was dismissed.
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 6TH DAY OF JULY, 2021
BEFORE
THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO
REGULAR SECOND APPEAL NO.50/2007 (INJ)
BETWEEN:
MODIGERE TOWN – 577 132. ...APPELLANTS
(BY SRI. TANVEER AHMED SHARIFF, ADVOCATE)
AND:
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SINCE DECEASED
REPRESENTED BY HIS LRs.
ALL ARE R/AT NEHRU ROAD, CHOULTRY FIELD, MOODIGERE TOWN AND POST.
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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.09.2006 PASSED IN R.A.NO.50/2006 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT – I, CHIKMAGALUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 09.04.2001 PASSED IN O.S.NO.249/1997 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.), MUDIGERE.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this matter is listed today for Admission, the
same is taken up for final disposal having regard to the facts and circumstances of the case.
decree dated 30.09.2006 passed in R.A.No.50/2006 on the file of the Presiding Officer, Fast Track court-I, Chikmagalur, wherein the regular appeal came to be allowed and judgment and decree passed in
OS.no.249/1997 dated 09.04.2001 came to be set aside and suit was decreed.
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parties are hereafter referred in accordance with their respective ranking in the trial court.
the suit for permanent injunction in O.S.No.2249/1997 in respect of the properties measuring 150x210 + 125/2 Ft., consisting of Mangalore Tiled building measuring East West
48 Ft and North South 69 Ft, comprised in Mudigere Town, Panchayath Assessment No.923/771 situated by the side of the K.M. Road in Mudigere Town, Mudigere Taluk against the defendant and the said suit filed by the plaintiff against the defendant came to be decreed.
interfered in the possession and enjoyment over the schedule property of the plaintiff.
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suit is bad for non-joinder and plaintiff has no locus standi to file the suit. The defendants contended that the plaintiff is not in actual possession and enjoyment of the same.
They admitted that their father has purchased the suit property but they were not aware of the extent purchased by him. Their father was not in possession till his death and there is no Khatha in respect of the schedule property in his name. In so far as the plaintiff is concerned, the defendants are not aware of the fact that the plaintiff was residing there and they denied the interference.
the President of Jamia Masjid and defendant No.2 is the President of Jadid Masjid, Mudigere and their contention is that plaintiff has furnished wrong boundary in the suit property in order to knockout them from the same.
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“SCHEDULE:
A site measuring East West 210 feets and North South 150 + 125 / 2 feets, consisting a Mangalore Tile Building measuring East West 48 feets and Nroth South 69 feets comprised in Mudigere Town Panchayath Assessment No.923/771 situated by the side of the K.M. Road, in Mudigere Town, Mudigere Taluk, Bounded on the East by K.M. Road.
West by wet lands of Kumara Shetty,
North by Sadguru Stores Building of Sadananda Shetty & South by the property of Dr. Nayaz Ahmad.”
on the basis of the pleadings and contentions;
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“1. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property?
2. Whether the plaintiff also proves alleged interference by the defendants?
3. Whether the sit is bad for misjoinder of parties?
4. Whether the plaintiff is entitled for the relief of permanent injunction as sought for?
5. To what order or decree?”
the oral and documentary evidence as under:
FOR PLAINTIFF:
P.W.1 : K.P.Mohamed Ex.P1 : Certified copy of sale deed Ex.P2 : Assessment extract Ex.P3 : ILR Extract Ex.P4 : RRS Extract Ex.P5 : Certified copy of W.P.No.32097/98
FOR DEFENDANTS:
D.W.1 : P. Hameedur Rehaman Ex.D1 : Copy of order of DC Ex.D2 : Two assessment extracts of Defendants
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Ex.D3 &4 : 5 assessment extract of Plaintiff Ex.D8 to8 : 5 assessment extract of Plaintiff Ex.D9 : One MR extract Ex.D10 : 3 certified copies of sale deed &D12 Ex.D13 : One RR extract Ex.D14 : Lone ILR extract
The suit was dismissed by the Trial Court in O.S.No.249/1997. However, the appeal in R.A.No.50/2006
came to be allowed and the judgment and decree passed by trial Court in O.S.No.249/1997 was set aside. Against which the appellants have presented this second appeal.
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western side is stated as 325 feet. However, in the plaint it is mentioned as 125 feet. That goes to show that the plaintiff has claimed lesser measurement.
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necessary to observe that even there is a different view on question of fact by the first and second appellate court but, this Court cannot interfere insofar as they remain point of fact.
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property and measurement stated therein does not change the nature and the scope of the suit.
case, insofar as the status of the defendant is concerned, it has to be ascertained as to whether it is a denial or a specific case. However, in respect of the separate case regarding the measurement or otherwise of the schedule property, it is for the defendants to have the separate recourse to Court of law.
Sd/JUDGE
Akv
3 issues framed by the court
Whether the trial court erred in directing dismissal of the suit regarding permanent injunction?
Whether discrepancy in property measurement in plaint attracts jurisdiction of Section 100 regular second appeal?
Whether the issue of boundary measurement is a question of law or fact?
1 provisions across 1 enactments
Sri Shaik Khadeer Hussain
Sri Hameed Khan
Sri. K.P.Mohammed
Sri. Jayaram
N.K. Sudhindrarao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
