In a regular second appeal challenging a dismissal of a suit for injunction and setting aside of an injunction in favor of the appellant, the High Court held that the First Appellate Court correctly found the appellant failed to prove possession. The appeal was dismissed with no substantial question of law arising.
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.
NC: 2024:KHC:34288 RSA No. 2090 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA REGULAR SECOND APPEAL NO. 2090 OF 2017 (INJ-)
BETWEEN:
SRI. SHIVAKUMAR S/O M.P. SAMPATH, AGED ABOUT 40 YEARS, R/AT HIG, KHB COLONY, VINOBHA NAGAR, SHIMOGA DISTRICT, SHIMOGA- 577 201.
…APPELLANT
(BY SRI. VIJAYA KUMAR, ADVOCATE)
AND:
S. VISHWESHWARAIAH S/O SIDDAPPA, AGED ABOUT 50 YEARS, RESIDING AT 2ND STAGE, VINOBHA NAGAR, SHIMOGA- 577 201.
…RESPONDENT
Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA
(BY SRI. B S PRASAD, ADVOCATE FOR C/R)
THIS RSA IS FILED UNDER SEC.100 R/W ORDER XLII RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 15.09.2017 PASSED IN RA NO.165/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM., SHIVAMOGGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 30.10.2013 PASSED IN OS NO.535/2005 ON THE FILE OF THE IV ADDL. CIVIL JUDGE AND JMFC., SHIVAMOGGA AND ETC.,
THIS APPEAL, COMING ON FOR DICTATING ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
Assailing the legality and correctness of the judgment and decree in RA No.165/2014 dated 15.09.2017 on the file of the Principal Senior Civil Judge and CJM Shivamogga (herein after referred to as "First Appellate Court" for short), whereby, the suit of the appellant for injunction was dismissed , reversing the judgment and decree in OS No.535/2005 dated 30.10.2013 on the file of the IV Additional Civil Judge and JMFC, Shivamogga (herein after referred to as "Trial Court" for short), the plaintiff is before this Court in the Regular Second Appeal.
i. That the First Appellate Court has failed to notice that the City Municipality Council, Shivamogga (herein after referred to as "CMC" for short) having acquired the land before Smt Lakshmamma approached this Court and has proceeded to auction the sites formed on 29.03.1984 itself. Thereafter, the notification came to be cancelled only in 1993 pursuant to the Gazette Notification issued by the Deputy Commissioner. It is the submission that the appellant in the meantime had purchased the suit property from the Thandavamurthy.
ii. That the First Appellate Court failed to notice that the plaintiff herein was in possession of the property having acquired the same through his vendor and vendor's vendor having acquired the site in the public auction conducted by the CMC on 29.03.1984. Subsequently, one Sampath, the power of Attorney holder of Thandavamurthy has
executed the sale deed in favour of the appellant on 31.01.2005, bifurcating the site measuring 40X60 feet into 30X40 feet and 30X40 feet.
iii. That the First Appellate Court has erroneously dismissed the suit of the plaintiff for injunction and failed to notice that the respondentdefendant herein was directed by this Court to approach CMC and to make necessary application for allotment of alternative site, as a measure of compensation.
iv. That the CMC had right to execute the sale deed in respect of the site in question to the vendor of the plaintiff, as the vendor purchased the suit property (site in public auction) way back in the year 1984 and the Courts below have erroneously dismissed the suit, that there arises substantial question of law to be considered by this Court in the Regular Second Appeal.
NC: 2024:KHC:34288 RSA No. 2090 of 2017
respondents justifies the judgment and decree of the First Appellate Court and would urge the following:
b. That the Lakshmamma had challenged the acquisition proceedings before this Court, the acquisition proceedings were quashed and the writ appeal preferred by the CMC was also dismissed and attained finality. In light of the same, after quashing of the notification, the respondent has purchased the site No.21 measuring 40X60 feet situated Sy.No.113/1 from the original owner Lakshmamma and it is the valid transaction.
c. That the injunction order granted by the First Appellate Court in the suit filed by the respondent in OS No.2/2006 has not been challenged by the present appellant, the same has attained finality, that there arises no substantial question of law for consideration in the present Regular Second Appeal and sought for dismissal.
contentions urged by the learned counsel for the parties and peruse the material on record.
6. The undisputed facts are that:
The CMC issued notification seeking acquisition of Sy.No.113/1 measuring 1 acre 33 gunats on 29.09.1976, the CMC sold site No.1438 measuring 12X18 feet to one Thimmappa in a public auction, which was a site formed in Sy.No.113/1 on 29.03.1984, the acquisition proceedings was challenged by the land owner Smt Lakshmamma in WP No.19731/1985, this Court on 07.08.1987 quashed the
NC: 2024:KHC:34288 RSA No. 2090 of 2017
notification dated 29.09.1976, the CMC preferred the writ appeal No.1619-28/1987, which also came to be dismissed, the notification dated 29.09.1976 was quashed.
with direction to the CMC-respondent No.4, to consider the claim of the petitioner to allot one site as per the present market value if an application is made for allotment of site within four weeks form the date of receipt of the copy of this order."
suit property from GPA holder of Tandavamurthy, the Tandavamurthy purchased in a public auction and the CMC executed a sale deed in his favour on 09.03.1992, the notification issued by the CMC seeking acquisition of Sy.No.113/1 on 29.09.1976 has been quashed by this Court in WP No.19731/1995 and confirmed in WA No.1619-28/1987, the acquisition proceedings having dropped, the consequence was that the CMC was not the
owner and had no right for execution of the sale deed, it becomes automatically invalid.
Appellate Court, the First Appellate Court while reconsidering and re-appreciating the entire oral and documentary evidence decreed the suit of the respondent in OS No.2/2006 and restrained the defendant-appellant by order of perpetual injunction from interfering with the possession and enjoyment of the suit property and suit OS No.535/2005 was dismissed.
which the First Appellate Court has considered entire oral
and documentary evidence independently, this Court is of the considered view that the same does not warrant any interference under Section 100 of CPC and no substantial questions of law arise for consideration, accordingly, this
Court pass the following:
ORDER
Court stands confirmed.
Sd/(K.S. HEMALEKHA) JUDGE
AT
List No.: 1 Sl No.: 14
2 issues framed by the court
Whether the High Court should interfere with the First Appellate Court's finding that the appellant failed to prove possession as on the date of the suit.
Whether any substantial question of law arises requiring interference under Section 100 of CPC.
SRI. SHIVAKUMAR S/O M.P. SAMPATH
S. VISHWESHWARAIAH S/O SIDDAPPA
K.S. HEMALEKHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
