Allowed

Smt. N. Gangarathnamma v. Smt. Gangamma

Karnataka HC11 Jul 2023RSA/600/2016

Case brief

AI extract

What is this about?

This regular second appeal challenges the dismissal of an original suit for permanent injunction. The High Court held that despite a factual dispute regarding possession nature, the appellant proved lawful possession and interference, entitling her to the injunction. It set aside the lower courts' judgment.

What did the court decide?

The judgment and decree of the Trial Court and First Appellate Court are set aside; the suit is decreed for permanent injunction.

Smt. N. Gangarathnamma Vs Smt. Gangamma — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:23982 RSA No. 600 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI REGULAR SECOND APPEAL NO.600 OF 2016 (INJ)

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BETWEEN:

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SMT.N.GANGARATHNAMMA W/O SRI. SOMASHEKHAR, AGED ABOUT 38 YEARS, AGRICULTURIST, R/AT KODIGANAHALLI, MANCHENAHALLI HOBLI, GAURIBIDANUR TALUK, CHICKBALLAPUR DISTRICT - 561 210.

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…APPELLANT

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(BY SRI. G.S.BALAGANGADHAR., ADVOCATE)

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AND:

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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SMT. GANGAMMA D/O LATE MADDURAKKA, AGED ABOUT 45 YEARS, AGRICULTURIST, R/AT KODIGANAHALLI, MANCHENAHALLI HOBLI, GAURIBIDANUR TALUK, CHICKBALLAPUR DISTRICT - 561 210.

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…RESPONDENT

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(BY SRI.KAPIL DXIT., ADVOCATE [ABSENT])

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

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

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NC: 2023:KHC:23982 RSA No. 600 of 2016

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JUDGMENT

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Sri.G.S.Balagangadhar., learned counsel for the appellant has appeared in person.

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There is no representation on behalf of the respondent.

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The appeal was listed on 07.07.2023. On that day,

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there was no representation on behalf of the respondent. This Court heard the learned counsel for the appellant and ordered the appeal to be listed on 11.07.2023 to hear learned counsel for the respondent.

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The appeal is listed today. There is no representation on behalf of the respondent.

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Heard, Sri.G.S. Balagangadhar., learned counsel for

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appellant.

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This is an appeal from the Court of Senior Civil Judge and JMFC, Gowribidanur.

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The plaint averments are these:

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3 - NC: 2023:KHC:23982 RSA No. 600 of 2016

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It is stated that the scheduled property bearing Assessment No.80 measuring to an extent of 48 X 36 feet situated at Kodiganahalli Village is the ancestral property of the plaintiff. The grandmother of the plaintiff namely Maddurakka out of love and affection executed a Relinquishment Deed in her favor. After the death of Maddurakka half a portion of the above-said property was mutated in the name of the plaintiff by Grama Panchayath. Accordingly, all the records pertaining to the property are transferred in the name of the plaintiff and she is regularly paying taxes. It is also stated that the plaintiff is residing in the said property along with her family. The concerned Grama Panchayath recognized her possession and issued Assessment Register Extract.

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It is said that the defendant is an absolute stranger, and she has no manner of right, title, interest, and possession over the suit schedule property, tried to interfere with her peaceful possession and enjoyment over the suit schedule property. It is also said that the defendant is a powerful woman and she tried to dispossess the plaintiff to knock off the suit schedule property and encroached towards the western side of the suit schedule property. The cause of action arose when the

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4 - NC: 2023:KHC:23982 RSA No. 600 of 2016

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defendant and her family members tried to interfere with the plaintiff's possession and enjoyment of the suit schedule property. Hence, the plaintiff - initiated action against the defendant seeking the relief of permanent injunction.

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After the service of the suit summons, the defendant entered appearance through her advocate, filed a detailed written statement, and denied the plaint averments. She contended that one Maddurakka D/o.Durgappa is the absolute owner of the suit schedule property bearing Khaneshmari No.45 of Kodiganahalli Village and she was in actual possession and enjoyment of the same. It is also contended that Maddurakka had four daughters and the fourth daughter Gangamma @ Chikka Gangamma is residing in the suit schedule property. Hence, it was specifically contended that the defendant is in possession and enjoyment of the suit schedule property with the consent of other daughters of Maddurakka, and all the documents are transferred in her name. The defendant specifically contended that she came to know that the plaintiff manipulated the records. She questioned the entry of Grama Panchayath records before the Executive Officer, Grama Panchayath, Gowribidanur and the same is pending

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5 - NC: 2023:KHC:23982 RSA No. 600 of 2016

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consideration. The defendant also contended that the plaintiff is a stranger to the suit schedule property and the defendant's family. She denied the possession of the plaintiff over the suit schedule property. Among other grounds, she prayed for the dismissal of the suit.

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

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Learned counsel for the appellant has urged several contentions.

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

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6 - NC: 2023:KHC:23982 RSA No. 600 of 2016

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The facts have been sufficiently stated and the same does not require reiteration. The suit giving rise to this appeal was filed by the plaintiff seeking the relief of injunction.

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As could be seen from the nature of lis between the parties, the suit is one for a bare junction based on possession as on the date of the suit. The right to an injunction is based on prima facie right. The plaintiff claiming the relief of perpetual injunction must establish the breach of an obligation or infringement of a legal right. It would be relevant to observe that in a suit for bare injunction, the plaintiff is required to prove their lawful possession and enjoyment over the suit property as of the date of filing of the suit.

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The principal ground on which this Court is asked to intervene in the concurrent finding of facts is that the Trial Court has erred in negating the fact of interference caused by the defendant.

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Sri.G.S.Balagangadhar., learned counsel for the appellant in presenting his argument vehemently contended that the Trial Court while answering Issue No.1 has rightly held that the plaintiff is in possession of the suit scheduled property as on

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the date of filing of the suit. However, the Trial Court went ahead and rejected the relief of a permanent injunction solely on the ground that the plaintiff is in permissive possession of the suit schedule property and hence, the alleged interference by the defendant is not proved by the plaintiff. He further contended that the defendant has not pleaded about permissive possession in the written statement, hence, the dismissal of the suit is unsustainable in law. He drew the attention of the Court to the pleadings.

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Perused the written statement filed by the defendant with utmost care. A perusal of the same would reveal that there is no plea about permissive possession. The defendant has not averred a single word about permissive possession. I may venture to say that both Courts failed to have regard to the relevant considerations and disregarded relevant matters.

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As already noted above, in a suit for a bare injunction, the plaintiff is required to prove their lawful possession and enjoyment over the suit property as of the date of filing of the suit. Furthermore, the Trial Court has held that the plaintiff has proved her lawful possession over the suit schedule property as

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of the date of filing of the suit, what was required to be considered is only the interference by the defendant. The plaintiff has specifically pleaded that the defendant tried to encroach towards the Western side of the suit schedule property which absolutely belongs to her. A specific plea was also made that defendant & her family members attempted to interfere with the peaceful possession and enjoyment of the suit schedule property. Hence, the finding on Issue No.2 ought to have been answered in the affirmative and I can say only this much that the finding is untenable in law.

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Tempted to say that the finding on permissive possession was not at all called for. To conclude, I can say only this much the plaintiff proved her possession over the suit schedule property as on the date of filing of the suit and she has also proved the interference by the defendant. Therefore, she is entitled to an order of injunction.

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The substantial questions of law are answered accordingly. The Judgment and Decree dated 19.04.2011 passed by the Court of Prl.Civil Judge & JMFC, Gowribidanur in O.S.No.349/2008 and the Judgment and Decree

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NC: 2023:KHC:23982 RSA No. 600 of 2016

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dated:03.02.2016 passed by the Court of Senior Civil Judge & JMFC, Gowribidanur in R.A.No.113/2011 are set-aside. The suit of the plaintiff is decreed.

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Resultantly, the Regular Second Appeal is allowed .

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The Registry concerned is hereby directed to draw a

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decree accordingly.

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Sd/JUDGE

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TKN List No.: 1 Sl No.: 74

Smt. N. Gangarathnamma v. Smt. Gangamma

Case brief

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Smt. N. Gangarathnamma v. Smt. Gangamma

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