Allowed

Sri. Basavaraju v. Smt. B S Ramamani

Karnataka HC21 Jul 2023RSA/8/2018

Case brief

AI extract

What is this about?

This regular second appeal challenges a decree granting permanent injunction. The High Court held that a suit for bare injunction requires proof of possession as on the date of filing. Since the defendant proved possession under a 1986 sale agreement before the 2013 suit, the suit was unsustainable. The appeal was allowed, setting aside lower court judgments.

What did the court decide?

The Judgment & Decree of the Trial Court and First Appellate Court are set aside; the Regular Second Appeal is allowed.

Sri. Basavaraju Vs Smt. B S Ramamani — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:25415 RSA No. 8 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI

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REGULAR SECOND APPEAL NO.8 OF 2018 (INJ)

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BETWEEN:

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SRI. BASAVARAJU S/O BOREGOWDA, AGED 60 YEARS, R/O BENAKANAKERE VILLAGE, DABBEGHATTA HOBLI, TURUVEKERE TALUK, TUMAKURU DISTRICT - 572 227.

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…APPELLANT

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(BY SRI.M.B.CHANDRACHOODA., ADVOCATE)

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AND:

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SMT. B.S. RAMAMANI W/O B.V. RAMANNA, AGED 70 YEARS.

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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2 SRI B.R.RAVIKUMAR, S/O B.V.RAMANNA, AGED 40 YEARS, BOTH ARE R/O BENAKANAKERE VILLAGE, DABBEGHATTA HOBLI, TURUVEKERE TALUK, TUMAKURU DISTRICT - 572 227.

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…RESPONDENTS

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(R1 & R2 ARE SERVED)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC., SEEKING CERTAIN RELIEFS.

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NC: 2023:KHC:25415 RSA No. 8 of 2018

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

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JUDGMENT

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Sri.M.B.Chandrachooda., learned counsel for the

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appellant has appeared in person.

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This is an appeal from the Court of Senior Civil Judge and J.M.F.C., Turuvekere.

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

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4. The plaint averments are these:

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The plaintiffs contended that the suit schedule property is the ancestral and joint family property and they are the absolute owners in possession and enjoyment of the same. The katha and the pahani are also standing in the name of the first plaintiff on the basis of pavathivarasu. They contended that the defendant has no manner of right, title or interest much less possession over the suit schedule property, made attempts to

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NC: 2023:KHC:25415 RSA No. 8 of 2018

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interfere with their possession. Hence, they were constrained to file a suit seeking the relief of permanent injunction.

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After the service of the suit summons, the defendant appeared through his counsel and filed written statement and denied the entire plaint averments. The defendant specifically contended that the husband of the first plaintiff and the father of the second plaintiff namely Sri.B.V.Ramanna was the absolute owner of the suit schedule property and he executed a Sale agreement with respect to suit property bearing Sy.No.231/1 to an extent of 01 Acre situated at Benakanakere Village, Dabbeghatta Hobli, Turuvekere Taluk on 10.11.1986 for a sale consideration of Rs.21,250/- (Rupees Twenty One Thousand Two Hundred and Fifty only). It is also contended that entire sale consideration was paid and he was put in possession of the property to an extent of 01 Acre. Therefore, it has been specifically contended by the defendant that the plaintiffs were not in possession of the suit schedule property as on the date of filing of the suit. Hence, the suit for bare permanent injunction is not maintainable. Among other grounds, he prayed for dismissal of the suit.

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NC: 2023:KHC:25415 RSA No. 8 of 2018

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Based on the above pleadings, the Trial Court framed issues. To substantiate their claim, the parties led in evidence and documents were marked and exhibited. On the trial of the action, the Trial Court decreed the suit. Aggrieved by the Judgment & Decree of the Trial Court, the defendant preferred an appeal before the First Appellate Court. On appeal, the First Appellate Court confirmed the Judgment & Decree of the Trial Court and dismissed the appeal. Hence, the defendant has filed this Regular Second Appeal under Section 100 of CPC.

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Sri.M.B.Chandrachooda., learned counsel for

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appellant has urged several contentions. Heard, the contentions urged on behalf of appellant and perused the records with utmost care.

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In HALSBURY’S LAWS OF ENGLAND , the meaning of injunction is stated as under.

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"An injunction is a judicial process whereby a party is ordered to refrain from doing or to do a particular act or thing. In the former case, it is called a restrictive injunction, and in the latter, a mandatory injunction. It is a remedy of an

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NC: 2023:KHC:25415 RSA No. 8 of 2018

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equitable nature, and since equity acts in personam , an injunction does not run with the land."

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It is a remedy of an equitable nature. An injunction is an order of the Court directing a party to the proceedings to do or refrain from doing a specified act. The object of Injunction is prevention, and their aim to is maintain status-quo ante . This can usually be affected by a merely restrictive order, i.e., one which forbids the carrying out a threat of injury, or the repletion of an injurious act.

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Reverting to the facts of the case, the suit giving rise to this appeal was filed by plaintiffs seeking the relief of permanent injunction. As could be seen from the nature of lis between the parties, the suit is one for permanent injunction based on the possession as on the date of filing of the suit. The right to injunction is based on prima-facie right. The plaintiff claiming the relief of perpetual injunction must establish the breach of an obligation or an infringement of a legal right.

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The issue revolves around the possession of the plaintiffs over the suit schedule property as on the date of filing of the suit.

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NC: 2023:KHC:25415 RSA No. 8 of 2018

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Sri.M.B.Chandrachooda., learned counsel appearing on behalf of appellant in presenting his arguments vehemently contended that the original owner Sri.Ramanna had agreed to sell to an extent of 01 Acre of land in Sy.No.231/1 in favor of defendant and accordingly, an agreement for sale came to be executed by Ramanna in favor of defendant on 10.11.1986. The entire sale consideration amount of Rs.21,250/- (Rupees Twenty One Thousand Two Hundred and Fifty only) was paid. He also argued by saying that the defendant was put in possession of the property to an extent of 01 Acre. He drew the attention of the Court to the document Ex.D.1 to contend that Ramanna had put the defendant in possession to an extent of 01 Acre in Sy.No.231/1. Learned counsel vehemently contended that both Courts lost sight of the fact that defendant was put in possession of the property by virtue of the sale agreement. However, both Courts on an erroneous footing went ahead and concluded that plaintiffs were in possession of the suit schedule property as on the date of filing of the suit.

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I have considered the contentions about the sale agreement and I have also perused the document with utmost care. The Sale agreement is marked as Ex.D.1. It is

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NC: 2023:KHC:25415 RSA No. 8 of 2018

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dated:10.11.1986. A careful perusal of the same would depict that there is an agreement of sale in respect of 01 Acre of land in Sy.No.231/1 by Ramanna in favor of defendant. The recital also depicts that the possession of 01 Acre was handed over to the defendant by the original owner Ramanna.

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Suffice it to note that the plaintiffs also admits in the course of cross examination that Ramanna has executed a sale agreement in favor of defendant.

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The law is well settled that, in a suit for bare injunction plaintiffs are required to prove their possession over the suit schedule property as on the date of filing of the suit. In the present case, the defendant is put in possession of the suit schedule property by virtue of a sale agreement in the year 1986 and suit is filed for permanent injunction based on possession in the year 2013. Therefore, it is hard to believe that plaintiffs are in possession of the suit property as on the date of filing of the suit.

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The law is also well settled that when the plaintiffs are not in possession of the suit property as on the date of filing of the suit, the suit for bare permanent injunction is not

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NC: 2023:KHC:25415 RSA No. 8 of 2018

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maintainable. I therefore conclude that the suit is not maintainable. In my considered view, both Courts have failed to have regard to the relevant considerations and have disregarded relevant matters. Therefore, the Judgment & Decree of the Trial Court and the First Appellate Court are unsustainable in law. Accordingly, they are liable to be setaside.

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The substantial questions of law framed by this Court are answered accordingly. The Judgment & Decree dated:21.09.2017 passed by the Court of Senior Civil Judge & JMFC, Turuvekere in R.A.No.33/2014 and also the Judgment & Decree dated:03.09.2014 passed by the Court of Civil Judge & JMFC, Turuvekere in O.S.No.34/2013 are set-aside.

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Resultantly, the Regular Second Appeal is allowed .

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Sd/JUDGE

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TKN List No.: 1 Sl. No.: 55

Sri. Basavaraju v. Smt. B S Ramamani

Case brief

What is this about?

What did the court decide?

Sri. Basavaraju v. Smt. B S Ramamani

Case brief

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