Dismissed

Smt Anasuya D/O Basavagowda v. R S Sathyanarayana S/O R.S. Srinivasa Rao

Karnataka HC13 Jun 2023RFA/466/2008

Case brief

AI extract

What is this about?

This appeal challenges the dismissal of a suit for permanent injunction. The High Court held the trial Court's decision was correct as the plaintiff failed to prove lawful possession due to discrepancies in land measurements between the sale deed and the suit schedule.

What did the court decide?

The appeal was dismissed and the trial Court's judgment and decree were confirmed.

Smt Anasuya D/O Basavagowda Vs R S Sathyanarayana S/O… — Specific Performance | Karnataka HC (2023)

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1 - NC: 2023:KHC:20250 RFA No. 466 of 2008

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD REGULAR FIRST APPEAL NO. 466 OF 2008 (INJ)

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BETWEEN:

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SMT ANASUYA D/O BASAVAGOWDA AGED ABOUT 45 YEARS R/AT NO.25/4, SARAKKI KERE PUTTENAHALLI MAIN ROAD BANGALORE-560078.

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…APPELLANT

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(BY SRI. M ERAPPA REDDY, ADVOCATE)

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AND:

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Digitally signed by DHANALAKSHMI MURTHY Location: High Court of Karnataka

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R S SATHYANARAYANA S/O R.S. SRINIVASA RAO AGED ABOUT 45 YEARS R/A PUTTENAHALLI PALYA 7TH PHASEJ.P.NAGAR BANGALORE-560 078.

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(BY SRI. J V CHANDRASHEKAR., ADVOCATE)

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…RESPONDENT

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THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SECTION 96 OF THE CPC AGAINST THE JUDGEMENT AND DECREE DATED. 18.1.08 PASSED IN OS NO. 4839/03 ON THE FILE OF THE XXIV ADDL. CITY CIVIL JUDGE, BANGALORE (CCH-6) , BANGALORE, DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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

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NC: 2023:KHC:20250 RFA No. 466 of 2008

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JUDGMENT

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This appeal under Order XVI Rule 1 read with Section 96 of the CPC is filed by the plaintiff challenging the judgment and decree dated 18.01.2008 passed by the XXIV Additional City Civil Judge at (CCH No.6), Benglauru City in O.S.No.4839/2003 whereby the suit filed by the plaintiff has been dismissed.

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For the sake of the convenience, the parties are referred to as per their ranking before the Trial Court.

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The case of the plaintiff is that she is the absolute owner in possession of the house and vacant site bearing No.4 situated in Sy.No.25 of Sarikkekere Village, Uttarahalli Hobli, Bengaluru South Tq., which is mournfully described in the plaint schedule. One Shambappa was the owner of the land in Sy.No.25 of Sarakkikere Village and he formed a layout of sites in the said land and sold the suit schedule property in favour of D. Siddaiah by executing General Power of Attorney on 21.06.1989. The wife and children of Shambappa have also witnessed the

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NC: 2023:KHC:20250 RFA No. 466 of 2008

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said General Power of Attorney and the said Siddaiah / GPA has executed the sale agreement in favour of the plaintiff on 15.03.1997. Later, the wife and children of the Shambappa has executed a Sale Deed which discloses that the measurement of site purchased by the plaintiff is 36 X 60 feet, in favour of the plaintiff as per Ex.D2 dated 26.12.2001. Since the defendant tried to interfere in to the suit schedule property, the plaintiff has filed the suit for injunction.

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On service of summons, the defendant has appeared through his counsel and filed the written statement. He has denied the contention of plaintiff that the Shambappa was the owner of the property and also denied the execution of General Power of Attorney by the Shambappa in favour of the Siddaiah and also contended that the GPA produced by the plaintiff is concocted document. He has also contended that the plaintiff has no right or title over the suit schedule property and sought for dismissal of the suit.

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NC: 2023:KHC:20250 RFA No. 466 of 2008

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On the basis of pleadings of the parties, the

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trial Court has framed the following issues:

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“1) Whether plaintiff proves her lawful possession over the suit schedule property?

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2) Whether plaintiff further proves the unlawful interference by the defendant?

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3) What order or decree?”

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To prove the case of the plaintiff, she got examined herself as PW-1 and examined another witness as PW-2 and got marked 11 documents. The defendant got examined himself as DW-1 and examined another witness as DW-2 and got marked 7 documents.

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On appreciation of oral and documentary

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evidence, the trial Court has answered issue No.1 in partly affirmative and issue No.2 in the negative and dismissed the suit. Being aggrieved by the same, the plaintiff has filed this appeal.

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5 - NC: 2023:KHC:20250 RFA No. 466 of 2008

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The learned counsel for the appellant/plaintiff

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has contended that the plaintiff has purchased the suit schedule property by a registered Sale Deed. They have examined two witnesses and produced 11 documents. Contrary to the material available on record, the trial Court has dismissed the suit.

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Learned counsel appearing for the defendants

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has contended that Shambappa is not the owner of the property and he has not executed any GPA in favour of D.Siddaiah in respect of suit schedule property. The GPA produced by the plaintiff is a concocted document. In the GPA and in the affidavit, they have tampered the measurement of the land. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties. Perused the judgment and decree and also original records.

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6 - NC: 2023:KHC:20250 RFA No. 466 of 2008

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The point that arises for consideration in this appeal is as follows:

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“ Whether the judgment and decree passed by the trial Court is perverse, erroneous and does it calls for any interference by this Court?”

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The specific case of the plaintiff that one Shambappa is the owner of the suit schedule property and he has executed the General Power of Attorney in favour of D. Siddaiah. The plaintiff has purchased the suit schedule property from wife and children, who have sold the property by registered sale deed as per Ex.D2 measuring 36 X 60 feet. The defendants have specifically denied that the Shambappa has executed any GPA in favour of Siddaiah in respect of suit schedule property. The trial Court after considering the evidence of parties, has given a finding that the plaintiff has tampered the measurement of the land in the GPA and also in the affidavit which are produced as Ex.P2 and Ex.P3, respectively. It is also very clear

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7 - NC: 2023:KHC:20250 RFA No. 466 of 2008

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that in the Ex.D2 / Sale Deed, the measurement has been shown as 36 X 60 feet. In the suit schedule, the measurement has been shown as 30 X 85 feet. Hence, the suit schedule property is not tally with the Ex.D2. The plaintiff has failed to prove that she is in lawful possession over the suit schedule property. Therefore, the trial Court has rightly dismissed the suit. Therefore, there is no error in the judgment and decree passed by the trial Court.

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Accordingly, the appeal is dismissed . The judgment and award passed by the trial Court is hereby confirmed.

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Sd/JUDGE

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List No.: 1 Sl No.: 39

Smt Anasuya D/O Basavagowda v. R S Sathyanarayana S/O R.S. Srinivasa Rao

Case brief

What is this about?

What did the court decide?

Smt Anasuya D/O Basavagowda v. R S Sathyanarayana S/O R.S. Srinivasa Rao

Case brief

What is this about?

What did the court decide?

What the court decided

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