Second appeal against dismissal of a suit for permanent injunction. The High Court affirmed the dismissal, noting the appellant failed to prove lawful possession and admitted the defendant encroached the property.
The appeal is dismissed; no permanent injunction granted.
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. 808 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.808 OF 2019 (INJ)
BETWEEN:
SHASHIKALA W/O R.DHANPAL AGED ABOUT 52 YEARS R/AT NO.98/1 MAGADI MAIN ROAD BENGLAURU-560 023.
…APPELLANT
(BY SRI RAVINDRANATH K, ADVOCATE)
Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA
AND :
RSA No. 808 of 2019
R.T.NAGOAR POST
BANGALORE-560 032
…RESPONDENTS
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 29.11.2018 PASSED IN R.A.NO.32/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, NELAMANGALA AND ETC.
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 and I have heard the learned counsel for the appellant.
RSA No. 808 of 2019
virtue of an agreement of sale dated 21.12.1996. Defendant No.1 handed over the possession of the suit schedule property to defendant No.2 by means of power of attorney dated 19.02.1994. By an agreement of sale, agreed to sell the suit schedule property for a sum of Rs.27,500/- and the plaintiff has paid the entire sale consideration amount to the defendant No.1 and she put her in possession of the suit schedule property. The defendant No.1 has agreed to sell the same contending that by virtue of a partition entered into among the members of her family dated 08.06.1969, defendant No.1 was allotted 1 acre, 1 gunta of land in Sy.No.111. As per the partition, the property mutated in M.R.No.2/92-93 and number of sites, out of which the site No.21 was agreed to be sold in favour of the plaintiff. The defendant No.1 was in need of money for their family necessity and daughter marriage and in view of the ban imposed by the Government of Karnataka, the document is not registered. The plaintiff constantly requesting to execute the sale deed in her favour, but the defendant is postponing the
RSA No. 808 of 2019
same for one or the other reasons. The defendant No.1 has formed a layout showing the location of the sites agreed to be sold in favour of the plaintiff. After ascertaining the boundaries of the layout plan and the agreement of sale, the plaintiff took possession and continued to be in possession of the sites. Without any right, title or interest over the suit schedule property, defendant No.2 came to plaintiff’s site in 3rd week of March, 2007 and tried to disturb her possession. The defendants are the powerful persons in the area and disturbed the possession of the plaintiff. Hence, sought for the relief of permanent injunction.
No.2 appeared through counsel and not chosen to file any written statement. Defendant No.1 appeared through counsel and filed the written statement denying the plaint averments and contend that plaintiff is totally stranger and she has no manner of right, title, interest or possession over the suit schedule property. The agreement of sale is
RSA No. 808 of 2019
got up, concocted, created and fraudulent document and the same has no value in the eye of law. Defendant No.1 along with the family members sold the entire land bearing Sy.No.111, measuring 3.11 guntas to defendant No.2 through registered sale deed dated 27.12.2006 for valuable consideration hence, he is in peaceful possession and enjoyment of the property including the suit schedule property.
RSA No. 808 of 2019
formulated the points whether the Trial Court has erred in holding that the plaintiff is not in possession of the suit schedule property and whether the judgment and decree passed by the Trial Court is liable to be set aside. The First Appellate Court also, on re-appreciation of both oral and documentary evidence placed on record, dismissed the appeal and confirmed the judgment of the Trial Court. Hence, the present second appeal is filed before this Court.
RSA No. 808 of 2019
dismissing the suit and confirming the judgment and
decree of the First Appellate Court.
date of filing of the suit, she has been in possession of the property. The first defendant, who allegedly executed the
RSA No. 808 of 2019
power of attorneys as well as the affidavits, also filed the written statement denying the very execution of Exs.P1 t P4. When D.W.1 disputes the documents of Exs.P1 to P4, no document is placed before the Court to show that as on the date of filing of the suit, the plaintiff has been in possession of the suit schedule property. The Trial Court considering the pleadings of the parties and also the evidence came to the conclusion that the plaintiff has failed to prove her contention by placing any cogent material piece of evidence before the Court and the interference of the defendant is also not proved by the plaintiff. When the plaintiff herself has failed to prove her lawful possession over the suit schedule property as well as its existence, then definitely there is no question of causing interference with the possession of the plaintiff over the suit schedule property.
material available on record by formulating the points and taken note of the pleadings of the parties. In paragraph
RSA No. 808 of 2019
No.16, has observed that not examined any other witnesses to prove the fact that she has been in possession and enjoyment of the suit schedule property. The Court also taken note that in the cross-examination, she has admitted that there is no any Kararu in between the plaintiff and defendant No.1 and also admits that the possession of the suit schedule property was not given thus, it is evident that the second defendant has encroached the suit schedule property in the year 2007 itself. Hence, he has been made as a party to the proceedings.
RSA No. 808 of 2019
Appellate Court also on re-appreciation of oral and documentary evidence came to the conclusion that the lawful possession has not been established by the plaintiff.
Trial Court as well as the First Appellate Court and both the Courts have given the anxious consideration to the material available on record except the documents-Exs.P1 to P4, no other material has been placed before the Court and the plaintiff also not examined any other witness to prove her possession. Apart from that, in the crossexamination, she categorically admitted that the possession was not delivered and also defendant No.2 has encroached the suit schedule property. When such admission is given and when the plaintiff failed to establish her possession, the question of granting the relief of permanent injunction does not arise. Both the Trial Court as well as the First Appellate Court considered the material available on record and dismissed the suit and the same has been confirmed by the First Appellate Court. Hence, I
RSA No. 808 of 2019
do not find any ground to admit the appeal and to frame any substantial question of law invoking Section 100 of CPC.
ORDER
The appeal is dismissed.
In view of dismissal of the appeal, I.As., if any do not
survive for consideration, the same stand disposed of.
Sd/JUDGE
SN
3 issues framed by the court
Whether the trial and first appellate courts erred in dismissing the suit for permanent injunction for failure to prove lawful possession.
Whether the appellant established a substantial question of law warranting interference under Section 100 of CPC.
Whether the admission regarding non-delivery of possession and encroachment precludes the relief of injunction.
Shashikala W/o R. Dhhanpal
Smt. Gangalakshmamma W/o Late Munisiddappa
Sri B. Srinivasa S/o B. Narayana Swamy
Sri G. Partap kumar S/o Yele Govindappa
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
