Dismissed

Sri Byraiah v. Sri Dodda Mayanna

Karnataka HC15 Feb 2023RSA/358/2017

Case brief

AI extract

What is this about?

This regular second appeal was admitted under Section 100 of CPC against judgments declining declaration and preserving injunction. While admitting the appeal for a substantial question of law on the legality of the injunction, the single judge found no merit in setting aside the lower courts' findings based on possession and evidence.

What did the court decide?

Appeal dismissed. Civil Appeal admitted for substantial question of law but found no merit in interfering with the injunction.

Sri Byraiah Vs Sri Dodda Mayanna — Property and Title | Karnataka HC (2023)

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1 - RSA No. 358 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO.358 OF 2017 (DEC/INJ)

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BETWEEN:

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SRI BYRAIAH S/O KARIYAPPA AGED ABOUT 54 YEARS

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SMT. BHAGYAMMA W/O BYRAIAH AGED ABOUT 51 YEARS

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BOTH ARE R/AT HUNASEDODDI VILLAGE, KOOTAGAL HOBLI RAMANAGARA TALUK AND DISTRICT-562159.

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…APPELLANTS

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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

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AND :

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SRI DODDA MAYANNA S/O LATE VEERABHAREGOWDA AGED ABOUT 79 YEARS R/AT HUNASEDODDI VILLAGE KOOTAGAL HOBLI RAMANAGARA TALUK AND DISTRICT-562159

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SMT. LINGAMMA D/O BYRAIAH W/O SIDDEGOWDA AGED ABOUT 72 YEARS

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RSA No. 358 of 2017

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R/AT ABBURUDODDI VILLAGE MALUR HOBLI CHANNAPATTANA TALUK RAMANAGARA DISTRICT-562108

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…RESPONDENTS

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(BY SRI BASAVARAJU P., ADVOCATE FOR R1; R2 SERVED AND UNREPRESENTED)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.10.2016 PASSED IN RA NO.16/2013 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE, RAMANAGARA AND 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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This matter is listed for admission. Heard the learned

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counsel appearing for the respective parties.

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This appeal is filed challenging the judgment

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and decree dated 21.10.2016 passed in R.A.No.16/2013 on the file of the Additional Senior Civil Judge, Ramanagara.

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RSA No. 358 of 2017

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The factual matrix of the case of the plaintiff

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before the Trial Court is that he had purchased the suit schedule property measuring 142 feet east to west and 67 feet north to south through a sale deed dated 30.01.1984. The schedule property was situated in the survey number but in the sale deed, katha number was mentioned, hence, a rectification deed was executed on 25.02.1985. It is further contended that since from the date of sale deed, the plaintiff is in possession of the suit schedule property. Defendant No.1 is the daughter of Byrappa and one of the vendor of the plaintiff, defendant No.2 is the son of brother of Byrappa and defendant No.3 is the wife of defendant No.2. The defendants though have no manner of right, title or interest over the suit schedule property, are trying to interfere with his possession denying his title thus, the suit was filed against the defendants seeking for the relief of declaration and injunction.

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In pursuance of the suit summons, the defendants have appeared before the Court and filed

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RSA No. 358 of 2017

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written statement contending that his father Byrappa died even prior to 1980 therefore, the sale deed produced by the plaintiff is a created document. It is further contended that she is an educated lady and she puts her signature and not LTM as found in the alleged sale deed. It is also contended that, out of 2 acres, 5 guntas, his father had sold 20 guntas to Basavalingaiah and 16 guntas to Narasimhaiah and the remaining 1 acre, 4 guntas was partitioned among the sons of Kariyappa to an extent of 11 guntas each. It is further contended that the plaintiff is neither the owner nor in possession of the suit property.

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The defendant Nos.2 and 3 have also filed the

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written statement denying the plaint averments and contend that the father of the defendant No.2-Kariyappa had 4 sons and they have partitioned 1 acre, 4 guntas each. It is also contended that he has sold 4 guntas along with the entire shares of his brothers Shivanna and Basavaraju, totally measuring 26 guntas in favour of Sadashivaiah. It is also contended that the remaining 7

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RSA No. 358 of 2017

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guntas was in his possession which is the suit property. It is further contended that, after obtaining ex-parte decree from this Court, the plaintiff encroached the said property and put up construction illegally in the suit property which is described as ‘B’ schedule property. In the written statement, the defendant Nos.2 and 3 have also sought for counter claim seeking the relief of possession and mandatory injunction.

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The Trial Court, based on the pleadings of the parties, framed the issues and the plaintiff has examined the P.A. holder as P.W.1 and got marked the documents as Exs.P1 to P27 and also examined two witnesses as P.Ws.2 and 3. The defendants have examined the defendant Nos.1 and 3 as D.Ws.1 and 2 and got marked the documents as Exs.D1 to D17.

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The Trial Court, after considering both oral and documentary evidence placed on record, decreed the suit for the relief of declaration and injunction accepting the case of the plaintiff. Being aggrieved by the judgment and

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RSA No. 358 of 2017

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decree, appeal is filed in R.A.No.16/2013 and the First Appellate Court modified the judgment declining to grant the relief of declaration and granted permanent injunction and so also dismissed the counter claim made by the defendant Nos.2 and 3. Hence, the present appeal is filed.

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Learned counsel appearing for the appellants would vehemently contend that both the Courts committed an error in granting the relief of permanent injunction, even though the plaintiff has not proved the title deeds and not mentioned the identity of the property. It is also contended that the First Appellate Court also not justified in decreeing the suit for the relief of permanent injunction and committed an error in granting the relief of permanent injunction. Hence, it requires interference by setting aside the judgment and decree passed in favour of the plaintiff and also prayed the Court to grant counter claim by allowing the appeal. The counsel also would vehemently contend that the First Appellate Court is not justified in granting the decree of permanent injunction when the

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RSA No. 358 of 2017

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plaintiff is not having any title and committed an error in rejecting the counter claim made by the plaintiff. Hence, it requires interference by invoking Section 100 of C.P.C. and prayed this Court to admit the appeal and frame substantial question of law.

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Per contra, learned counsel for the respondents would submit that there was a sale deed of the year 1984 to the extent of 142 x 67 feet and while selling the property, khatha number was mentioned and subsequently, rectification deed was executed clarifying the same. The counsel also would contend that, both the Courts comes to the conclusion that plaintiff is in possession of the property and hence, rightly granted the relief of permanent injunction and not committed any error. The counsel would submit that, while granting the relief of permanent injunction, the Court has to take note of the possession and the very interference at the instance of the defendants.

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RSA No. 358 of 2017

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The First Appellate Court also, taken note with regard to the counter claim made by the defendant Nos.2 and 3 and answered the point as ‘negative’ since, the defendants, who have been examined before the Trial Court categorically admitted that the plaintiff is in possession of the suit schedule property and also answered the issue No.2 that plaintiff is entitled for the relief as sought and when the relief of permanent injunction is granted based on the material available on record that the plaintiff had put up construction and residing in the house and Exs.P25 to 26 i.e., photographs are evident that residential house is constructed by the plaintiff and also comes to the definite conclusion that there is no evidence to show that the plaintiff has encroached 7 guntas of land of defendant No.2 as contended. Hence, it does not require any interference.

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Having heard the respective counsel and also

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on perusal of the material available on record, the plaintiff

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9 - RSA No. 358 of 2017

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has sought for the relief of declaration and injunction and the Trial Court granted the relief of declaration and injunction having considered the material on record, particularly the document of sale deed which is marked as Ex.P1. The plaintiff also got marked Ex.P2-rectification deed, wherein rectified the mistake crept in while executing the document of Ex.P1. However, the First Appellate Court reversed the judgment and decree of the Trial Court and the said order has not been challenged by the plaintiff before this Court and only challenge made by the defendants before this Court is that granting of permanent injunction in favour of the plaintiff is erroneous. The First Appellate Court also, taking note of the material on record, comes to the conclusion that the plaintiff is entitled for the relief of permanent injunction, particularly taking the admission of D.W.1 in the crossexamination and not accepted the document of Ex.P2 which requires compulsory registration and in Para No.22, taken note of boundaries which have been described in Ex.P2 and Ex.P1 is a registered document which shows

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10 -

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RSA No. 358 of 2017

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that there is a house and backyard towards southern side of the house. It is also observed that, boundaries are not

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disputed in the written statement and plaintiff also produced Ex.P7-RTC, which shows that he is in possession of the suit schedule property and though the said document discloses that he is in possession of 7 guntas, but he is in possession of 5 guntas of land in Sy.No.83/1.

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The Trial Court as well as the First Appellate Court also taken note of the demand register extracts produced by the plaintiff which shows that the plaintiff is in possession of property No.45/1. It is also observed that the said document does not reveal Sy.No.83/1. But, Ex.P18, RTC extract shows that portion of Sy.No.83/1 is in possession of the plaintiff and the Court has also taken note of the admission given by D.W.2 in her cross-examination that plaintiff’s house is situated adjacent to her house and behind the plaintiff house, where the land belonging to Basavalingaiah is situated. She further admits that they have put up two bore wells in their house utilizing the water to irrigate their lands and three photographs were

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11 -

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RSA No. 358 of 2017

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confronted to D.W.2 at the time of cross-examination and she admits the photographs and the house is constructed with bricks belonging to plaintiff and the plaintiff is residing in the said house. Further, claims that the plaintiff has constructed the said house in her property.

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Having taken note of the material on record, both the Courts comes to the conclusion that plaintiff is in possession of the suit schedule property. Hence, granted the relief of permanent injunction. Hence, I do not find any error committed by both the Courts in considering the material on record, particularly the answer elicited from the mouth the D.W.2, wherein categorically admitted that plaintiff is in possession of the property.

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The counsel for the respondents would vehemently contend that when the title is not proved, ought not to have granted the relief of permanent injunction and the very approach of the Trial Court and the First Appellate Court is erroneous. Admittedly, the sale deed was produced as Ex.P1 dated 30.01.1984 and the

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RSA No. 358 of 2017

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same is also not questioned and measurement is mentioned as 142 x 67 feet and construction was also made by the plaintiff, after purchase of the property and is residing in the said house and revenue documents are also standing in the name of the plaintiff to establish his possession. When such being the case, both the Courts have not committed any error and while considering the material on record, particularly in a suit for injunction and while granting the relief of injunction, the Court has to see whether, as on the date of filing of the suit, the plaintiff is in possession or not and there is any interference by the defendants and the very admission given by the D.W.2 is very clear that the plaintiff has constructed the house and residing in the said house and definite finding is given by the Trial Court as well as the First Appellate Court.

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When such being the material on record, I do not find any ground to admit the appeal and frame substantial question of law as contended by the learned counsel for the appellants invoking Section 100 of C.P.C.

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13 -

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RSA No. 358 of 2017

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Hence, there is no merit in the appeal to admit and frame

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the substantial question of law.

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In view of the discussions made above, I pass

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the following:

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ORDER

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The appeal is dismissed.

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In view of dismissal of the main appeal, I.A. if any,

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does not survive for consideration and the same stands

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disposed of.

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Sd/JUDGE

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SN/ST

Sri Byraiah v. Sri Dodda Mayanna

Case brief

What is this about?

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Sri Byraiah v. Sri Dodda Mayanna

Case brief

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