In this Regular Second Appeal, the High Court dismissed the appeal at the admission stage. The principal matter involved an application for permanent injunction over vacant land, where the appellant failed to prove lawful possession and correct identification of the property boundaries.
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.
NC: 2023:KHC:19433 RSA No. 23 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI REGULAR SECOND APPEAL NO.23 OF 2018 (INJ)
BETWEEN:
RANGEGOWDA S/O GANGADHARAIAH, AGED 41 YEARS, NO.2, T.C. MARAIAH, BGML QUARTERS, NEAR SCHOOL OF MINES COROMANDAL, K.G.F.KOLAR DISTRICT - 563 162.
Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA
REPRESENTED BY GPA HOLDER, R.GOPALAIAH S/O RANGAPPA, AGED 77 YEARS, NO.86, DASARAHALLI, EXTENSION KUVEMPUNAGARA, DADDAKARAPPANAHALLI POST, BANGARPET TALUK, KOLAR DISTRICT - 563 162. …APPELLANT
(BY SMT. NEERAJA KARANTH., ADVOCATE)
AND:
SIRAJ AHMED SHAREEF S/O LATE ALI SHERIFF, AGED 41 YEARS, DOOR NO.2307, VIVEKANANDANAGAR,
NC: 2023:KHC:19433 RSA No. 23 of 2018
BANGAPET, KOLAR DISTRICT - 563 162.
…RESPONDENT
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Smt.Neeraja Karanth., learned counsel for the appellant has appeared in person.
The case of the plaintiff is that he had purchased the suit schedule property under the Registered Sale Deed dated:16.08.2004 from one Smt. Muniyamma and she had got
converted the land and got approved for the plan. She was paying taxes to the panchayath concerned. It is said that after the purchase of the suit property, the plaintiff applied for a change of katha and the said application is pending. It is alleged that the defendant without having any right or title, attempted to interfere with the suit schedule property. Hence, the plaintiff was constrained to take shelter under the Court of law and filed a suit for the relief of permanent injunction.
After the service of the suit summons, the defendant appeared through his counsel and filed a detailed written statement. The defendant denied the entire plaint averments. It is contended that the plaintiff wrongly claimed the property of a defendant in the form of schedule property by quoting the wrong V.P Katha number, wrong survey number, and measurement. It is contended that Smt.Muniyamma - the vendor of the plaintiff had no title or possession over the suit schedule property. He also disputed the measurement of the boundaries as shown in the suit schedule property. Among other grounds, he prayed for the dismissal of the suit.
NC: 2023:KHC:19433 RSA No. 23 of 2018
On the trial of the action, the Trial Court dismissed the suit. On an appeal, the First Appellate Court confirmed the Judgment and Decree of the Trial Court. Hence, this Regular Second Appeal is filed under Section 100 of CPC.
Next, she submits that this Court on an earlier occasion had remanded the matter and after remand, both Courts have failed to comprehend the observations made in the remand order.
A further submission is made that in the first round of litigation, the Court refused the relief only on the ground that the plaintiff did not establish his vendor's title over the suit property. Accordingly, the plaintiff chose to produce the Partition Deed dated 19.09.1968 wherein, the mother of the
NC: 2023:KHC:19433 RSA No. 23 of 2018
vendor of the plaintiff was allotted with the suit schedule property. The said land was converted and thereafter it was sold to the plaintiff. Despite the documents speaking for themselves, both Courts have erroneously rejected the claim of the plaintiff.
Learned counsel Smt.Neeraja Karanth., vehemently contended that the First Appellate Court has held that the property has not been identified properly by the plaintiff. However, it has failed to note that the extent the documents showed is more than the extent of the suit schedule seeking injunction order. It is also submitted that the plaintiff has sought the relief only towards the extent which is in his actual possession. The suit schedule property is vacant land and the possession over a minor extent around the property here and there has been lost. Nevertheless, as the extent shown in the suit schedule is lesser than the title deed of the plaintiff.
Learned counsel argued by saying that both Courts failed to note that the actual measurement of property holds good over the extent mentioned which is situated within the boundary shown. Assuming the measurement shown in the
NC: 2023:KHC:19433 RSA No. 23 of 2018
partition deed differed from the measurement shown in the suit schedule, even then also, the plaintiff is entitled to the relief of injunction over the lesser extent shown in the light of the registered sale deed which is corroborated by the Partition deed and Demand Register extracts pertaining to suit schedule land.
Lastly, she contended that findings recorded by the Courts below are erroneous and lacks judicial reasoning. Therefore, she prayed that this second appeal may be admitted, by framing substantial questions of law.
The suit giving rise to this appeal was bought by plaintiff seeking the relief of injunction.
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 suit.
NC: 2023:KHC:19433 RSA No. 23 of 2018
In the present case, the suit is for bare injunction. The plaintiff based his claim on the ground that he purchased the property from his vendor Smt.Muniyamma. The suit schedule property is described as under:
"Vacant site measuring East to West 60 feet, North to South 80 feet, bearing V.P.Khatha No.1151, out of alienated S.No.128/2, situated at Dasarahosahalli Village, Robertsonpet, K.G.F. within the limits of D.K.Halli Gram Panchayath, bounded on the East by Louis House, West by Pump House and Puliendran sites, North by Narayanappa house and South by Road."
It is pivotal to note that the defendant disputed that the boundaries given by the plaintiff are not proper. He also disputed the title of the plaintiff over the suit schedule property. The Trial Court framed as many as five issues. The first issue relates to the proof of the plaintiff's lawful possession over the suit property as on the date of filing of the suit.
The Trial Court in extenso referred to the material on record, in particular the contention, objection, and dispute about the boundaries of suit schedule property. The Trial Court referred to the schedule mentioned in the Partition Deed at
NC: 2023:KHC:19433 RSA No. 23 of 2018
Ex.P.7 and also the schedule is shown in the plaint and concluded that the plaintiff has failed to prove that he is in possession and enjoyment of the suit schedule property within the given measurement and boundaries as described in the plaint schedule.
On appeal, the First Appellate Court confirmed the said findings. The First Appellate Court also found that the identity of the suit schedule property has not been proved to the satisfaction of the Court.
Smt.Neeraja Karanth., learned counsel appearing on behalf of the appellant in presenting her arguments strenuously urged that after remand, an honest attempt was made by the plaintiff to produce the document i.e., the Partition Deed of the vendor of the plaintiff. But the same has been overlooked by both Courts. She also argued by saying that witness Sri.P.Naveen Kumar - DW2 has categorically admitted in his evidence about the boundaries shown by the plaintiff in the schedule. Hence, an attempt was made on behalf of the appellant to contend that the Courts have overlooked the said admission of DW2 and also the Partition Deed.
NC: 2023:KHC:19433 RSA No. 23 of 2018
The submission with regard to the oral evidence and production of the document is noted with utmost care. I am unable to accept the said contention. Since, interfering with a finding of a fact by the High Court is not warranted if it involves re-appreciation of the evidence.
The law is well settled that in an injunction suit, it is for the plaintiff to prove that he or she should be in peaceful possession and enjoyment of the suit schedule property. In the present case, there is a dispute with regard to the boundaries and also about the identity of the property. When the plaintiff has failed to prove the same, then the Trial Court and the First Appellate Court are justified in holding that plaintiff is not entitled to a decree of the injunction.
It is perhaps well to observe that after the 1976 amendment, the scope of Section 100 of CPC has been drastically curtailed and narrowed down. Under Section 100 of the Code of Civil Procedure, 1908 (as amended in 1976) the jurisdiction of the High Court to interfere with the Judgment of the Court below is confined to hearing substantial questions of law.
NC: 2023:KHC:19433 RSA No. 23 of 2018
No substantial question of law arises for consideration in this appeal. As a result, I find no merit in this appeal and accordingly, it is dismissed at the stage of admission itself.
Sd/JUDGE
TKN List No.1: Sl.No.31.
2 issues framed by the court
Whether the High Court is justified in dismissing the second appeal at the admission stage for lack of substantial question of law under Section 100 of the CPC.
Whether the appellant has successfully challenged the lower courts' finding that the plaintiff failed to prove peaceful possession and identity of the property.
1 provisions across 1 enactments
Rangegowda
Siraj Ahmed Shareef
Jyoti Mulimani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
