Dismissed

Sri Madabovi v. Sri B K Rohith

Karnataka HC7 Sept 2021RSA/662/2020

Case brief

AI extract

What is this about?

In this second appeal, the High Court dismissed the appeal filed by a defendant challenging a permanent injunction grant in a property suit. Upholding concurrent findings of lower courts regarding the plaintiff's possession, the court held no substantial question of law existed under Section 100 of CPC and rejected requests for police protection.

What did the court decide?

The regular second appeal is dismissed.

Sri Madabovi Vs Sri B K Rohith — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.S.A.NO.662/2020 (INJ)

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BETWEEN:

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SRI MADABOVI S/O CHIKKABOVI AGED ABOUT 77 YEARS RESIDING AT NO.175/2 NEAR PUTTAMMA MADAPPA SAMUDAYA BHAVANA, RAGHAVENDRA NAGAR MYSURU-570 010. … APPELLANT

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[BY SRI K.P.BHUVAN, ADVOCATE]

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AND:

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1 . SRI B.K.ROHITH

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S/O LATE B.K.KRISHNEGOWDA AGED ABOUT 38 YEARS R/AT NO.51, 2^ND CROSS 2^ND STAGE, GANGOTHRI EXTENTION CHAMARAJA MOHALLA MYSURU-570 010.

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2 . SUMITHRA W/O LATE KUMARA AGED ABOUT 41 YEARS

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3 . SRI ANANDA S/O MADABOVI AGED ABOUT 50 YEARS

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4 . SRI MANJUNATHA S/O MADABOVI AGED ABOUT 43 YEARS

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5 . SRI PRABHAKAR S/O MADABOVI AGED ABOUT 46 YEARS

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RESPONDENT NOS.2 TO 5 ALL ARE R/AT NO.175/2 NEAR PUTTAMMA MADAPPA SAMUDAYA BHAVANA, RAGHAVENDRA NAGAR MYSURU-570 010.

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6 . SMT. PREMA W/O LAKSHMAN R/AT GIRIYABOVI PALYA SIDDARTHA LAYOUT MYSURU-570 010. … RESPONDENTS

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[BY SMT.RASHMI, ADVOCATE FOR SRI T.N.RAGHUPATHY, ADVOCATE FOR R1; SRI MALLAPPA S. NACHAVAR, ADVOCATE FOR R5; R2 TO R4 AND R6 SERVED]

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 25.11.2019 PASSED IN R.A.NO.275/2019 (OLD R.A.NO.72/2018) ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 17.03.2018 PASSED IN O.S.NO.539/2007 ON THE FILE OF THE II ADDITIONAL FIRST CIVIL JUDGE AND JMFC AT MYSURU.

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THIS R.S.A. COMING ON FOR ADMISSION THROUGH ‘VIDEO CONFERENCE’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This matter is listed for admission today. I have heard the learned counsel for the appellant and learned counsel for respondent No.1.

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This appeal is filed challenging the judgment and decree passed in R.A.No.275/2019 (Old R.A.No.72/2018) dated 25.11.2019 on the file of the III Additional District and Sessions Judge, Mysuru and the judgment and decree passed in O.S.No.539/2007 dated 17.03.2018 on the file of the II Additional First Civil Judge and JMFC at Mysuru.

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The parties are referred to as per their original rankings before the Trial Court to avoid confusion and for the convenience of the Court.

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The factual matrix of the case is that the plaintiff has filed the suit in O.S.No.539/2007 before the Trial Court seeking the relief of permanent injunction against the defendants in respect of the suit schedule property. The plaintiff, in order to substantiate his contention, examined himself as P.W.1 and got marked the documents as Exs.P1 to P11. On the other hand,

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the defendants have examined two witnesses as D.Ws.1 and 2 and got marked the documents as Exs.D1 to D16. The Trial Court, taking note of the material available on record and also the evidence of the witnesses P.W.1 and also D.Ws.1 and 2, comes to the conclusion that the plaintiff is in possession of the suit schedule property and hence, granted an order of permanent injunction.

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Being aggrieved by the judgment and decree passed in O.S.No.539/2007, the defendant Nos.1 and 2 in the original suit have preferred the appeal in R.A.No.275/2019. The First Appellate Court also, on re-appreciation of the material available on record particularly, in paragraph No.25 of the judgment has considered the reasoning given by the Trial Court and comes to the conclusion with regard to the possession of the plaintiff is concerned and the Trial Court has not committed any error while decreeing the suit of the plaintiff in coming to the conclusion that the plaintiff is in possession of the suit schedule property. Both the Courts have given the concurrent finding with regard to the possession of the plaintiff is concerned. Hence, the present second appeal is filed by the defendant No.1 before this Court.

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Learned counsel for the appellant has brought to the notice of this Court the reasoning given by the Trial Court and also the First Appellate Court. The main contention of the learned counsel for the appellant before this Court is that, under the alleged document Ex-P11-unregistered sale deed, possession has not been delivered and the copy of the same is also produced before this Court. Having read the recitals of the document at Ex.P11, it is seen that site was sold in favour of the plaintiff by defendant Nos.1 and 2 for a consideration of Rs.5,000/-. It is not in dispute that the defendant Nos.3 to 6 are the children of defendant Nos.1 and 2. The recitals of the document at Ex.P11 also disclose that plaintiff can enjoy the property by paying tax. It is not in dispute that the document of Ex.P11 is an unregistered sale deed. Both the Courts have taken note of the validity of the document at Ex.P11. However, comes to the conclusion that the suit is filed only for the relied of permanent injunction and the plaintiff has proved the factum of possession. Under the circumstances, the respective Courts have come to the conclusion that the plaintiff has established the possession in his favour.

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Having considered the reasoning given by the Trial Court and also the First Appellate Court on re-appreciation of both oral and documentary evidence placed on record, I do not find any error committed by the Courts with regard to granting of permanent injunction is concerned since, the plaintiff has established the possession as against the defendants. The Trial Court and also the First Appellate Court have taken note of the admission given by the defendants in the cross-examination having formed the revenue sites and sold the same in favour of the prospective purchaser. When such being the material available on record regarding formation of sites and selling the sites, the First Appellate Court has taken note of the evidence of the witnesses, who have categorically admitted that they have not paid any tax in respect of the suit schedule property.

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It is important to note that the plaintiff has relied

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upon the gift deed executed by the mother and also the other documents to show that the suit schedule property stands in the name of the plaintiff. I do not find any force in the contention of the learned counsel for the appellant that both the Courts have committed an error and the second appeal be admitted since,

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the both the Courts have given a concurrent finding. In a case where both the Courts have given any perverse finding, the Court can exercise the power invoking Section 100 of C.P.C. Hence, I do not find any ground to invoke Section 100 of C.P.C. to frame any substantial question of law. There is no merit to admit the second appeal and frame the substantial question of law.

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Learned counsel appearing for the respondent No.1 submit that, in spite of decree of permanent injunction being granted by the Trial Court in favour of the plaintiff and the same being confirmed by the First Appellate Court, the defendants are interfering with the possession of the plaintiff and the Court shall give a direction to the concerned police to give protection. The said submission cannot be accepted. Since, there is a decree of permanent injunction and if there is any violation of the same by the defendants, the plaintiff can approach the appropriate forum and seek for the appropriate relief.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The regular second appeal is dismissed.

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Sd/JUDGE

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Sri Madabovi v. Sri B K Rohith

Case brief

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Sri Madabovi v. Sri B K Rohith

Case brief

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