Regular second appeal filed challenging the dismissal of principal appeal in property suit involving injunction. High Court held that appellants failed to prove possession on suit date, finding no grounds to admit appeal or frame substantial question of law.
The appeal was dismissed; incidental applications stood disposed of.
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.
RSA No. 651 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.651 OF 2019 (DEC/INJ)
BETWEEN:
RANGASWAMAIAH
Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA
SINCE DEAD BY LRS
AGED ABOUT 15 YEARS MINOR REPRESENTED BY HIS PARENTAL UNCLE, RAJANAN S/O THIRUMALAGIRIAIAH, AGED ABOUT 45 YEARS R/O KYATHASANDRA TUMAKURU-572101
RSA No. 651 of 2019
AGED ABOUT 64 YEARS R/O G.K.STREET, KYATHASANDRA TUMAKURU-572101
[DELETED AS PER THE ORDER DT.20.02.2023]
…APPELLANTS
(BY SRI. GURURAJ R, ADVOCATE)
AND :
…RESPONDENTS
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 19.12.2018 PASSED IN R.A.NO.69/2017 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, TUMAKURU AND ETC.
RSA No. 651 of 2019
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This matter is listed for admission. Heard the learned counsel appearing for the appellants.
and decree dated 19.12.2018 passed in R.A.No.69/2017 on the file of the Principal District Judge, Tumakuru.
RSA No. 651 of 2019
as affirmative and Issue No.2 as negative in coming to the conclusion that the plaintiffs have not proved that they have been in possession of the property as on the date of filing of the suit. Being aggrieved by the judgment of the Trial Court, appeals were preferred by the respective parties in R.A.Nos.57/2017 and 69/2017 and the First Appellate Court considering the material available on record re-appreciated the evidence and dismissed both the appeals filed by the plaintiffs as well as defendant No.1 and confirmed the judgment of the Trial Court. Hence, the present appeal is filed before this Court.
RSA No. 651 of 2019
presumptive value under Section 133 of Karnataka Land Revenue Act, 1964 and also submits that whether both the Courts were justified in relying on Ex.D7 and D8 to prove the possession of defendant No.1 solely relying on the report of expert about the signature of plaintiffs without there being independent evidence of the witnesses to prove the due execution of alleged document and its contents in accordance with law and also it is contended that whether both the Courts were justified in holding issue No.2 in negative merely on the ground that signature of the plaintiffs tallies in Ex.D8 as observed by expert in his report/opinion in the absence of proof of the contents of the document and hence, the appeal requires to be admitted and substantial question of law has to be framed.
RSA No. 651 of 2019
Attorney and both the Courts taking into note of both the oral and documentary evidence placed on record comes to the conclusion that the sale deed executed by defendant No.1 is based on the power of attorney in favour of defendant No.1 is null and void and while considering Issue No.2 taken note of the document and evidence of PW1. PW1 in his evidence stated that defendant No.1 started to collect men and material by the side of the suit schedule property in order to erect boundary stone and barbed wire fence to the suit schedule property. But he claims that he is in possession of the suit schedule property. But the Trial Court in paragraph 29 while answering Issue No.2 comes to the conclusion that defendant No.1 has proved the execution of Ex.D8 by the plaintiffs and as per its recital, on the date of execution of the said document itself, the plaintiffs have handed over the possession of the suit schedule property to defendant No.1 and given powers to deliver the property and to sell the suit schedule property.
RSA No. 651 of 2019
appreciation of both oral and documentary evidence
placed on record taken note of the grounds urged in the appeal memo and also taken note of the documents of Ex.D1 and D8 and comes to the conclusion that under Ex.D8, he has establishes his possession hence, the question of granting the relief of injunction does not arise and also comes to the conclusion that the sale deed dated 28.11.2005 is null and void for violation of conditions of GPA and also interest of agent runs in conflict with that of the principle. However, with regard to the possession is
concerned, the First Appellate Court comes to the conclusion that the plaintiffs have failed to prove their possession over the suit schedule property as under Ex.D1 and D8 since Ex.D1 and D8 clearly establishes that defendant No.1 is in possession of the suit schedule property and considering the material available on record declined to pass an order of injunction. Both the Courts
have given anxious consideration to both oral and documentary evidence placed on record. Though disputed
RSA No. 651 of 2019
the document of execution of Ex.D8 by the plaintiffs, but the same has been proved and the signature available in the document also belongs to the plaintiffs and having taken note of the opinion of the expert also comes to the conclusion that the plaintiffs while executing the document at Ex.P1 in order to form the layout in the suit schedule property by getting the conversion of the suit schedule property and necessary approvals of the plan and thereafter, to sell the sites formed in the said layout by receiving sale consideration, the same was executed. Having considered the material available on record rightly
comes to the conclusion that plaintiffs have not been in possession of the suit schedule property as on the date of filing of the suit.
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favour of defendant No.1 in order to form the layout and sell the property by obtaining necessary approval by the concerned department hence, the said document is upheld by the Trial Court as well as the First Appellate Court. Thus, I do not find any force in the contention of the appellants’ counsel. In a case for permanent injunction, the Court has to take note of two factors. One is with regard to as on the date of filing of the suit, the plaintiffs were in possession of the suit schedule property and there must be interference at the instance of the defendant. When these two factors have not been established by the plaintiffs, the very contention of the appellants’ counsel that both the Courts have committed an error cannot be accepted. Hence, I do not find any grounds to admit the appeal and to frame substantial question of law invoking Section 100 of CPC.
RSA No. 651 of 2019
ORDER
The appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands disposed of.
Sd/JUDGE
SN
2 issues framed by the court
Whether substantial question of law arises regarding the refusal of permanent injunction due to failure to prove possession.
Whether the lower courts erred in concluding that the sale deed was executed under power of attorney and plaintiff was not in possession.
1 provisions across 1 enactments
Rajanna and Others
D. Basavaraju
Chandrashekaraiah
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
