Dismissed

Sri Nagendrachar v. Sri Sugnanamurthy

Karnataka HC1 Jun 2023RSA/777/2020

Case brief

AI extract

What is this about?

This second appeal against the dismissal of a suit for permanent injunction was dismissed at the stage of admission. The Court held that no substantial question of law arose as the issue of the relinquishment deed was barred by res-judicata and the lower courts' findings could not be re-appreciated.

What did the court decide?

The appeal was dismissed at the stage of admission with no order as to costs.

Sri Nagendrachar Vs Sri Sugnanamurthy — Property and Title | Karnataka HC (2023)

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RSA No. 777 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF JUNE, 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.777 OF 2020 (INJ)

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BETWEEN:

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SRI. NAGENDRACHAR, S/O LATE SRI. NAGALINGACHAR, AGED ABOUT 58 YEARS, R/O KOTTHALAVADI VILLAGE, HARADANAHALLI HOBLI, CHAMARAJANAGAR TALUK AND DISTRICT - 571 313.

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…APPELLANT

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(BY SRI.G.B.NANDISH GOWDA, ADVOCATE FOR SRI. R.B. SADASIVAPPA, ADVOCATE)

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AND:

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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SRI. SUGNANAMURTHY, S/O LATE SRI. NAGALINGACHAR, AGED ABOUT 66 YEARS, R/AT RTES MESS, HOLKOTI, GADAG TALUK AND DISTRICT - 582 101.

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SRI. K. N. VENUKUMAR, S/O LATE SRI. NAGALINGACHAR, AGED ABOUT 53 YEARS, R/O KOTTALAVADI VILLAGE, HARADANAHALLI HOBLI, CHAMARAJANAGAR TALUK, AND DISTRICT-571 313.

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SRI. K. N. MALLU, S/O LATE SRI. NAGALINGACHAR,

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RSA No. 777 of 2020

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AGED ABOUT 44 YEARS, R/AT NO.123, SRIRAMPURAM, BENGALURU-560 023.

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…RESPONDENTS

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

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

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JUDGMENT

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Sri.G.B.Nandish Gowda, learned counsel on behalf of Sri.R.B.Sadasivappa., for the appellant has appeared in person.

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This appeal is from the Court of Additional Senior Civil Judge and JMFC, Chamarajanagara.

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

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The facts of the case are quite simple and are stated as under:

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The plaintiff filed a suit for the relief of permanent injunction and mandatory injunction. The plaintiff and defendants are the sons of Sri.Nagalingachar. After the death

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RSA No. 777 of 2020

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of their father, they got divided the family properties. It is pleaded that the defendants executed a Hakku Kulase Patra on 28.01.2007 by receiving a sum of Rs.3,000/- (Rupees Three Thousand only) each. It is averred that the defendants had filed a suit in O.S.No.47/2007 seeking the relief of partition and separate possession. The suit came to be decreed. Aggrieved by the Judgment and Decree of the Trial Court, the plaintiff who was a defendant in O.S.No.47/2007 preferred an appeal in R.A.No.108/2008. The appeal came to be dismissed; so also, the Second Appeal before this Court was dismissed on 03.09.2010. He contended that the defendants tried to interfere with his peaceful possession and enjoyment of the suit schedule property. Hence, the present suit for an injunction was filed.

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After service of the suit summons, the defendants appeared through their counsel and filed a detailed written statement. They denied the plaint averments. They denied the relinquishment Deed dated 28.01.2007. They specifically contended that the plea and the contention about the execution of the relinquishment deed were negatived in the partition suit. Among other grounds, they prayed for the dismissal of the suit.

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RSA No. 777 of 2020

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On the basis of the above pleadings, the Trial Court framed four Issues.

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To substantiate the claim, the plaintiff –

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K.N.Nagendrachar was examined as PW1 and produced thirty documents which were marked as Ex.P.1 to Ex.P.30. On behalf of the defendants, no evidence was adduced and no documents were marked.

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On the trial of the action, the suit came to be dismissed with a cost of Rs.3,000/- (Rupees Three Thousand only). On 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 is filed.

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Sri.G.B.Nandish Gowda., learned counsel for the appellant submits that the Judgments and Decrees of the Trial Court as well as the First Appellate Court are erroneous and unsustainable both in law and in fact and hence, they are liable to be set aside.

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Next, he submits that the Trial Court erred in answering issues Nos.1 to 3 as negative and wrongly applied the

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RSA No. 777 of 2020

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provisions of law and has erroneously come to the conclusion that the suit is barred by the law of limitation.

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A further submission is made that the Trial Court erred in not invoking Sections 19 and 20 of the Specific Relief Act.

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Learned counsel vehemently contended that the First Appellate Court ought to have remanded the matter to the Trial Court. It is also submitted that the question of res-judicata does not apply to the facts of the case.

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Lastly, he submits that viewed from any angle, the rejection of relief of injunction is bad in law; hence, this Regular Second Appeal raises substantial questions of law and the same may be admitted accordingly.

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Heard, the contentions urged on behalf of the appellant and perused the judgments and decrees of the Trial Court and also the First Appellate Court with utmost care.

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The facts have been sufficiently stated and the same does not require reiteration. In the present case, the plaintiff sued for permanent injunction and mandatory injunction.

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RSA No. 777 of 2020

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Suffice it to note that the plaintiff based his claim on the relinquishment deed that is said to have been executed by the defendants on 28.01.2007. It is not in dispute that the plaintiff and defendants are brothers. The issue revolves around the execution of the alleged relinquishment deed and refusal to grant the relief as prayed in the plaint.

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Before the Trial Court, the plaintiff specifically contended that the defendants relinquished their share under the relinquishment deed. In this Court also, he has adhered to the said contention. It is pivotal to note that the entire case is based upon a relinquishment deed.

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Sri.G.B.Nandish Gowda., learned counsel appearing on behalf of the appellant in presenting his argument strenuously urged that the Courts have failed to appreciate the plea and the contention with regard to the relinquishment deed. He argued by saying that the Courts have erred in declining the grant of the relief of injunction.

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I have considered the contention about the

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relinquishment deed. It is pivotal to note that the plea and the contention about the relinquishment deed have already been

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RSA No. 777 of 2020

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negatived in the partition suit. Hence, the same operates as res-judicata. Therefore, the contention about the relinquishment deed cannot be accepted.

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It is pivotal to note that the Trial Court in extenso referred to the material on record and dismissed the suit. The First Appellate Court has examined the evidence on record and re-appreciated it. I am satisfied that it has been appreciated from the correct perspective. The concurrent finding of facts, however erroneous, cannot be disturbed by the High Court in the exercise of the power under Section 100 of CPC. The substantial question of law has to be distinguished from a substantial question of fact. In my view, the findings recorded by both the Courts are either vitiated by non-consideration of relevant evidence or by an erroneous approach to the matter. Where based on evidence on record the Trial Court and the First Appellate Court had concurrently arrived at a finding of fact, the High Court in the Second Appeal cannot reverse the said concurrent findings under ordinary circumstances.

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It is perhaps well to observe that after the 1976 amendment, the scope of Section 100 of the CPC has been

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RSA No. 777 of 2020

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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. Interference with a finding of a fact by the High Court is not warranted if it involves re-appreciation of the evidence.

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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.

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No order as to costs.

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Sd/JUDGE

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NR List No.: 1 Sl No.: 34

Sri Nagendrachar v. Sri Sugnanamurthy

Case brief

What is this about?

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Sri Nagendrachar v. Sri Sugnanamurthy

Case brief

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