Regular second appeal filed by plaintiff challenging dismissal of suit for bare injunction. High Court held grant certificate details ambiguous and measurements not on ground. Construction complete negates apprehension of interference. Appeal dismissed for no substantial question of law.
No substantial question of law arising; regular second appeal 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.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 1172 OF 2016 (INJ)
BETWEEN:
SRI. K.P.NAGARAJ, S/O LATE C. PUTTASWAMY, AGED ABOUT 47 YEARS, R/O KADRIMIDRI VILLAGE, MUKTHIHALLI POST, CHIKKAMANGALUR TALUK – 577 133.
…APPELLANT
(BY SRI. G.M.GADILINGAPPA, ADVOCATE)
AND:
Digitally signed by USHA N S Location: High Court of Karnataka
SMT. ASHA, W/O SRI. VARADEGOWDA, AGED ABOUT 35 YEARS, R/O KADRIMIDRI VILLAGE, MUKTHIHALLI POST, CHIKKAMAGALUR TALUK – 577 133.
…RESPONDENT (BY SRI.V.D.RAVIRAJ, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 25.04.2016 PASSED IN RA.NO.140/2015 ON THE FILE OF THE 2nd ADDL. SENIOR CIVIL JUDGE CHIKKAMAGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
09.11.2015 PASSED IN OS.NO.254/2013 ON THE FILE OF THE 2nd ADDL. CIVIL JUDGE AND JMFC., CHIKKAMAGALURU.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned Second Appeal is filed by the plaintiff assailing the concurrent findings of the Courts below in dismissing the plaintiff's suit for bare injunction.
appearance and filed written statement and stoutly denied the entire averments made in the plaint. The defendant, on the contrary, claims that the plaintiff is not in possession of a site measuring 40X60. On the contrary, the defendant claims that plaintiff's property does not measure 40X60 feet as claimed but measures 33X56 feet. Therefore, the defendant sought dismissal of the suit by contending that the plaintiff has approached this Court by suppressing the material facts.
respective claims have let in oral and documentary evidence.
oral and documentary evidence, has answered issue Nos. 1 to 3 in the negative. The Trial Court, referring to the evidence on record, also held that, though in the grant certificate, the site measurement is indicated as 40X60
feet, the said document does not come to the aid of the plaintiff. Referring to rebuttal documents and several admissions in cross-examination, the Trial Court has come to the conclusion that plaintiff has failed to substantiate that site No.15 measures 40X60 feet as claimed. Referring to Ex.D.1, which is the demand extract of the suit schedule property, the Trial Court has come to the conclusion that the suit property actually measures 35x58 feet and not 40X60 feet as claimed by the plaintiff. Consequently, the suit is dismissed.
decree of the Trial Court, preferred an appeal before the appellate Court. The Appellate Court has independently assessed the oral and documentary evidence. The Appellate Court, referring to Exs.D.2 and 3, which are the photographs, found that plaintiff has completed the construction and therefore, the question of interference at the hands of defendant would not survive for consideration.
extent of sites held that the documentary evidence adduced by the plaintiff at Exs.No.14 to 19 and Exs.P.21 to 29 does not substantiate and establishes that plaintiff is in actual possession of the suit site measuring 40X60 feet. On these set of reasoning, the Appellate Court proceeded to dismiss the appeal. These concurrent findings are under challenge.
Courts below, though the plaintiff has placed reliance on Ex.P.1, which is the grant certificate, it indicates that site No.15 was allotted to the plaintiff, measuring 40X60. There are no further supporting documents to demonstrate and establish that the plaintiff was delivered a site measuring 40X60 feet. There are lot of ambiguities
in the grant certificate vide Ex.P.1. Surprisingly, the grant certificate does not reflect or depict the existence of an approach road to this site. Therefore, the defence set up by the defendant that portion is utilized to form a road between the sites stands probabilised. On reading Ex.P.3, roads are depicted towards north and south. On examining the schedule in the plaint, the plaintiff has deliberately not disclosed and given specific measurements of site No.15, which is the subject matter of the suit. He has not disclosed the measurements of the site towards east-west and north-south. Both the Courts, referring to the material on record, have come to the conclusion that though grant certificate reveals that the measurement of the site is 40X60, but the said measurements are not depicted on the ground. If both the Courts referring to pleadings and admissions elicited in cross-examination of plaintiff have come to the conclusion that plaintiff is not in possession of the measurement indicated in the plaint and have declined to grant an injunction, this Court cannot re-assess the pleadings and documentary evidence under Section 100 of
CPC. The Appellate Court has rightly taken cognizance of the fact that plaintiff has completed construction and therefore, plaintiff's apprehension of defendants interference does not survive for consideration. If plaintiff has completed the construction of a residential house, in the absence of a prayer seeking relief of declaration, the plaintiff's possessary right to an extent of 40X60 feet cannot be examined in the captioned second appeal. The appeal is devoid of merit. Therefore, no substantial question of law would arise for consideration. Accordingly, the regular second appeal is dismissed .
In view of dismissal of second appeal, all pending applications, if any, do not survive for consideration and stand disposed of.
Sd/JUDGE
HDK CT: SN
2 issues framed by the court
Whether substantial questions of law arise on facts showing grant certificate measurements not depicted on ground.
Whether court can re-assess evidence and facts in a regular second appeal under Section 100 of CPC.
1 provisions across 1 enactments
Sri. K.P.Nagaraj
Smt. Asha
Sachin Shankar Magadum
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
