Dismissed

Shri.Sanjay S/O Ramchandra Patil, v. Shri.Balasaheb S/O. Govindrao Manavi

Karnataka HC18 Oct 2022RSA/101033/2019

Case brief

AI extract

What is this about?

Regular second appeal in a suit for permanent injunction. The High Court dismissed the appeal holding the appellate courts correctly found the appellants failed to establish lawful possession of the suit property, with no substantial question of law warranting interference.

What did the court decide?

The Regular Second Appeal was dismissed at the admission stage.

Shri.Sanjay S/O Ramchandra Patil, Vs Shri.Balasaheb… — Specific Performance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF OCTOBER, 2022

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BEFORE

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THE HON’BLE MS. JUSTICE JYOTI MULIMANI

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REGULAR SECOND APPEAL NO.101033 OF 2019 (INJ)

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BETWEEN:

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1 . SHRI.SANJAY S/O RAMCHANDRA PATIL, AGE: 52 YEARS, OCC: PAN SHOP BUSINESS, R/O: SHIVAJI NAGAR, NIPPANI, TQ: CHIKKODI, (NOW NIPPANI) DIST: BELAGAVI-591237.

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SHRI. RAJENDRA S/O RAMCHANDRA PATIL, AGE: 50 YEARS, OCC: PAN SHOP BUSINESS, R/O: SHIVAJI NAGAR, NIPPANI, TQ: CHIKKODI (NOW NIPPANI) DIST: BELAGAVI-591237.

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...APPELLANTS

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(BY SRI. SANJAY S. KATAGERI, ADVOCATE.)

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AND:

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SHRI.BALASAHEB S/O. GOVINDRAO MANAVI, AGE: 71 YEARS, OCC: BUSINESS, R/O: SHIVAJI NAGAR, NIPPANI, TQ: CHIKKODI (NOW NIPPANI) DIST: BELAGAVI-591237.

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NOW RESIDING AT NEAR JAIN TEMPLE, LAXMIPURI NEAR PADMA TALKIES,

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KOLHAPUR, DIST: KOLHAPUR, STATE: MAHARASHTRA-416002.

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… RESPONDENT

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 24.09.2019, IN R.A.NO.39/2018, PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, NIPPANI, IN DISMISSING THE APPEAL AND THEREBY CONFIRMING THE JUDGMENT AND DECREE DATED 29.09.2018, IN O.S.NO. 154/2015, PASSED BY THE CIVIL JUDGE AND JMFC, NIPPANI, BY ALLOWING THIS APPEAL AND THEREBY DECREEING THE SAID SUIT IN O.S.NO.154/2015, WITH COSTS THROUGHOUT THE PROCEEDINGS, ETC.,.

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

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JUDGMENT

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Sri.Sanjay S.Katageri., learned counsel for appellant

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has appeared in person.

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For the sake of convenience, the status of parties is referred to as per their rankings before the trial Court.

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The brief facts of the case are stated as under:

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It is stated that the plaintiffs filed a suit for the relief of permanent injunction. The suit property is Pan shop with the name Military Pan Shop (Khoka) measuring to an extent

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of east to west 3 feet and south-north 5 feet which is a part and parcel of CTS No.3131 measuring east-west 1 feet 6 inch corresponding to Municipal House No.1091 and the remaining portion of the said Khoka is on Guttar and bounded on East by road, West by remaining property out of CTS property, South by open space and North by shop of Putthanikar, which is situated at Dalal Nippani Tq. Chikkodi.

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It is stated that originally the plaintiff’s father was the tenant of the suit property and the said tenancy was a monthly tenancy and he used to pay Rs.300/- per year to the defendant. It is also stated that the father was running Military Pan Shop in the suit property since long time and after his death in the year 1994, the plaintiff continued to run the said shop in the property by paying the rent of Rs.300/- per year to the defendant.

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It is further stated that plaintiff obtained the license from the City Municipal Council, Nippani to run the military Pan Shop and also the Pan Shop had an electricity connection and at the time of taking electricity connection,

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the defendant had given consent in favor of father of plaintiff for the electricity connection.

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It is averred that plaintiffs are depending upon the income of the Pan shop and they have no other source of income. Such being the situation, on 20.05.2015, defendant threatened that he would remove the Pan shop and evict plaintiffs from the said shop. It is said that defendant caused obstruction and disturbance to the plaintiffs peaceful possession and enjoyment over the suit schedule property. Thus, plaintiffs were constrained to take shelter under the Court and filed a suit seeking the relief of injunction.

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After service of summons, defendant appeared through his counsel and filed written statement. He denied the relationship of landlord and tenant and description of the suit property. It was contended by him that he is the owner of the property bearing CTS No.3131 situated at Dalal Peth, Nippani and a portion of the same was leased to One Makandar. It is said that the defendant had filed a suit against Makandar in O.S.No.208/2009 and the same was

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decreed and he has executed the decree in E.P.No.58/2014

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and took possession of the same. It has been specifically contended that he never leased any portion of CTS No.3131 to plaintiff’s father and also denied plaintiffs possession over the suit property. Among other grounds, he prayed for the dismissal of the suit.

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Based on the above pleadings, the Trial Court has framed the following issues:

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Whether the plaintiffs proves that plaintiffs are in lawful possession and enjoyment of suit schedule property?

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Whether the plaintiffs prove the alleged interference by the defendant?

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Whether the suit of the plaintiff maintainable?

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Whether the plaintiffs entitled for the relief sought for?

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What order or decree?

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To substantiate the claim, plaintiff No.2 was examined

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as PW1 and produced forty-four documents which were

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marked as Exs.P1 to P44. On the other hand, defendant was examined as DW1 and produced three documents which were marked as Exs.D1 to D3.

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On the trial of the action, the Trial Court dismissed the suit. On appeal, the Judgment and Decree of the Trial Court was confirmed. Hence, this Regular Second Appeal is filed under Section 100 of CPC is filed.

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Learned counsel for appellants has urged

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several contentions.

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Heard the contentions urged on behalf of appellants and perused the appeal papers with care.

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The suit giving rise to this appeal was brought by the plaintiffs seeking the relief of permanent injunction.

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As could be seen from the nature of lis between the parties, the suit is for bare injunction based on possession as on the date of the suit. The right to injunction is based on prima-facie right.

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It is the specific case of plaintiffs that the defendant had leased the suit property and they are running a Military Pan shop in the suit schedule property.

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To prove the contention, the second plaintiff was examined as PW1. It is pivotal to note that in his crossexamination, he has clearly admitted that there is no lease agreement and one Makandar was the tenant. It is also admitted by him that there is no separate CTS number and Municipal number to the portion which is alleged to have been occupied by them.

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The law is well settled by the Apex court in ANANTHULA SUDHAKAR VS. P.BUCHI REDDY –

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reported in AIR 2008 SC 2033, it has been held that:

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“ In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession”.

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The Trial Court in extenso referred to the material on record and concluded that plaintiffs have failed to prove that they are in possession of the suit property as on the date of the suit. The Appellate Court has examined the material on record and re-appraised it. I am satisfied that it has been appreciated in right perspective. Further, the findings by the Court of facts are neither vitiated by non-consideration of relevant evidence nor there is an erroneous approach to the matter. I do not find any error in the finding of facts. In my considered view, both the courts have rightly exercised the discretion in right perspective. The same does not call for any interference. I find it necessary only to say this much that I am not prepared to differ from the view taken by the Trial Court and by the Court of Appeal as to the question of fact.

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It is perhaps well to observe here that the after the 1976 amendment, the scope of Section 100 of CPC has been drastically curtailed and narrowed down. The High Court would have jurisdiction of interfering under Section

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100 of CPC only in a case where substantial question of law is involved and those questions have been clearly formulated in the memorandum of appeal. No substantial questions of law arise for consideration in this second appeal.

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In the result, I find no merit in this appeal and accordingly it is dismissed at the stage of admission itself.

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Sd/JUDGE

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TKN

Shri.Sanjay S/O Ramchandra Patil, v. Shri.Balasaheb S/O. Govindrao Manavi

Case brief

What is this about?

What did the court decide?

Shri.Sanjay S/O Ramchandra Patil, v. Shri.Balasaheb S/O. Govindrao Manavi

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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