Dismissed

Sri Narayana (Naani) v. Sri Shivaji Rao

Karnataka HC6 Mar 2024RSA/356/2024

Case brief

AI extract

What is this about?

In this Regular Second Appeal under Section 100 CPC, the High Court dismissed the appeal filed by the defendant/appellant. The court upheld the First Appellate Court's order granting a permanent injunction to the plaintiff, finding the defendant failed to prove title to the property. The appellant's reliance on subsequent mutation entries was rejected.

What did the court decide?

Appeal dismissed; First Appellate Court's order granting permanent injunction to the plaintiff is confirmed.

Sri Narayana (Naani) Vs Sri Shivaji Rao — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:9413 RSA No. 356 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL

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REGULAR SECOND APPEAL NO. 356 OF 2024 (INJ)

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BETWEEN:

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SRI NARAYANA (NAANI) S/O PUTTARAMAIAH, AGED ABOUT 52 YEARS, R/AT RAYARADODDI (SHIVAJINAGARA) RAMANAGARA TOWN, RAMANAGARA DISTRICT - 562159.

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…APPELLANT

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(BY SRI. G M SRINIVASAREDDY.,ADVOCATE)

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AND:

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SRI SHIVAJI RAO S/O LATE RAJA RAO JADHAV, AGED ABOUT 77 YEARS, R/AT DOOR NO.4470,. Digitally signed by SUMA B N SHETTIHALLI STREET, Location: High RAMANAGARA TOWN - 562 159. Court of Karnataka

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SMT. BHAGYA, W/O LATE SHIVARAMU, AGED ABOUT 60 YEARS,

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SRI GIRI, S/O LATE SHIVARAMAIAH, AGED ABOUT 37 YEARS

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2 - NC: 2024:KHC:9413 RSA No. 356 of 2024

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RESPONDENT NO.2 AND 3 ARE R/AT KEMPEGOWDANADODDI VILLAGE, IJOOR POST, KASABA HOBLI, RAMANAGARA TALUK AND DISTRICT - 562 159.

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SRI UMESH, S/O PUTTARAMAIAH, AGED ABOUT 55 YEARS

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SRI RAJA, S/O PUTTARAMAIAH, AGED ABOUT 50 YEARS,

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RESPONDENT NO.4 AND 5 ARE R/AT KEMPEGOWDANADODDI VILLAGE, IJOOR POST, KASABA HOBLI, RAMANAGARA TALUK AND DISTRICT - 562159.

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…RESPONDENTS

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(BY SRI. SUBBA SHASTRY N.,ADVOCATE FOR C/R1; NOTICE IS NOT ORDERED TO R2 TO R5)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 20.12.2023 PASSED IN RA NO.41/2019 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, RAMANAGARA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 02.08.2019 PASSED IN OS NO.312/2012 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, RAMANAGARA.

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

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3 - NC: 2024:KHC:9413 RSA No. 356 of 2024

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JUDGMENT

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This appeal is filed by the defendant No.3 aggrieved by the judgment and order dated 20.12.2023 passed in R.A.No.41/2019 on the file of Prl. Senior Civil Judge and CJM., Ramanagara (the First Appellate Court) by which the First Appellate Court while setting aside the judgment and decree dated 02.08.2019 passed in O.S.No.312/2012 on the file of Additional Civil Judge and J.M.F.C, Ramanagara decreed the suit for injunction.

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The above suit in O.S.No.312/2012 is filed by the plaintiff/respondent No.1 for the relief of permanent injunction contending that;

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(a). The land in Sy.No.71 originally belonged to grand mother of the plaintiff namely Amba Bai and that said Amba Bai had executed a registered deed of gift on 08.12.1987 in favour of the plaintiff and at the time of land being conveyed by way of gift the land was referred to by Sy.No.71/2.

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(b). That subsequently plaintiff applied and obtained change of land usage from agriculture to non-agriculture purpose vide Order dated 02.12.1990 and conversion was also approved. The plaintiff had formed a layout consisting of sites of different dimensions and had retained one site which is the plaint schedule property. That the plaint schedule property has been assigned with Municipal No.866/607/1. Thus the plaintiff has been in possession and

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NC: 2024:KHC:9413 RSA No. 356 of 2024

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enjoyment of the suit schedule property and exercising the right of ownership over the same.

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(c). It is further contended that defendants were strangers to the family and property of the plaintiff and without having any right attempted to interfere with the peaceful possession and enjoyment of the suit schedule property by the plaintiff, constraining the plaintiff to file the above suit.

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The defendant Nos.1 to 4 appeared through their counsel. Defendant No.3 filed the written statement which was adopted by the defendant Nos.1, 2 and 4. The defendant No.3 in his written statement denied the plaint averments and contended;

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(a). That the suit schedule property was the ancestral property of the defendants belonging to their grand father Chikkanna. That upon the demise of the said Chikkanna defendants have been in possession and enjoyment of the suit schedule property. It is further contended that the property being claimed by the plaintiff has no relevance or concern to the property in possession of the defendants which is Sy.No.71.

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(b). That the grand father of the defendants had sold certain portion of land in Sy.No.71 and had retained the suit schedule property. That Smt.Amba Bai did not have any right, title and interest to convey 2 acres 17 guntas of land.

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5 - NC: 2024:KHC:9413 RSA No. 356 of 2024

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It is also contended that originally the property belonged to one Smt.Ankamma W/o Dasegowda. That on 10.05.1950 an extent of 2 acres and 17 guntas in Sy.No.71 was sold to Sri.Mohammed Basha Saheb S/o Sab Jaan Saheb. Subsequently, one Pyarijaan and her husband Mohammed Basha Saheb had sold the said property under the deed of sale dated 28.05.1969 in favour of Sri.Madaih @Mottekaalaiah S/o Kunnegowda.

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(c). That the said Sri.Madaiah @Mottekaalaiah had sold 2 acres 17 guntas of land in Sy.No.71 in favour of Smt.Amba Bai-grand mother of the plaintiff on 27.07.1967. That out of 2 acres and 17 guntas, the said Smt.Amba Bai had sold 5 guntas of land in favour of Lokanath S/o Narayan Kande on 26.04.1976 and by deed of sale dated 26.04.1976 she has sold 4 guntas out of 2 acres and 12 guntas in favour of one Krishnoji Rao S/o Venkata Rao and another extent of 5 guntas of land was sold in favour of Srinivasa Rao Chouhan on 26.05.1976 and had retained only 2 acres and 3 guntas of land as such said Smt.Amba Bai could not have executed the deed of gift to an extent of 2 acres and 17 guntas of land as claimed by the plaintiff.

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(d). It is further contended that the defendants have been in the possession of the property enclosed by the stone slabs and the plaintiff has stored sand in the suit schedule property, Smt.Amba Bai did not have any legal heirs and he

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NC: 2024:KHC:9413 RSA No. 356 of 2024

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was not in possession of the property as such the suit was not maintainable. Hence, sought for dismissal of the suit.

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Based on the pleadings, the Trial Court framed the following issues and additional issue:

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"1. Whether the plaintiffs prove that he is in lawful possession over the suit schedule property?

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2. Whether the plaintiff further proves that there is an unlawful interference by the defendants over the suit schedule property?

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3. What order or decree?"

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Additional Issue:

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"1. Whether the plaintiff is entitled for the relief as prayed for?"

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The plaintiff examined one Anand Rao as PW1 and exhibited 26 documents marked as Ex.P1 to Ex.P26. In order to prove their defence, defendant No.3 examined himself as DW1 and exhibited 10 documents marked as Ex.D1 to Ex.D10. On appreciation of the evidence the Trial Court answered Issue Nos.1 and 2 in the negative and Additional Issue No.1 also in the negative and consequently dismissed the suit of the plaintiff.

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Aggrieved by the aforesaid judgment and decree plaintiff preferred a regular appeal in R.A.No.41/2019 before the First Appellate Court. Considering the grounds urged the First Appellate Court framed the following points for consideration:

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7 - NC: 2024:KHC:9413 RSA No. 356 of 2024

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"1. Whether the findings arrived at by the learned Trial Court that the Plaintiff failed to prove his possession over the suit schedule property is incorrect?

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2. Whether the Judgment and Decree passed by the learned Trial Court that the Plaintiff failed to prove the alleged interference by the Defendants is incorrect?

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3. Whether the judgment and decree passed by the learned Trial Court in O.S.No.312/2012 calls for interference?

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4. What order or decree?"

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On re-appreciation of the evidence, the First Appellate Court answered point Nos.1 and 2 in the negative and point No.3 in the affirmative and consequently allowed the appeal by setting aside the judgment and decree passed by the Trial Court. Being aggrieved by the same defendant No.3 is before this Court.

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Sri.G.M.Srinivasareddy, learned counsel for the appellant reiterating the grounds urged in the memorandum of the appeal and taking through the judgment passed by the First Appellate Court vehemently submitted that the First Appellate Court grossly erred in reversing the judgment and decree passed by the Trial Court specifically referring to para Nos.28 and 29 of the judgment and decree passed by the Trial Court. Learned counsel for the appellant submitted that defendant had produced revenue documents in the nature of M.R. entries as per Ex.D10 reflecting the name of defendants and also the possession of defendants over the suit schedule property which has not been taken note of by

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8 - NC: 2024:KHC:9413 RSA No. 356 of 2024

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the First Appellate Court. He further submits that the Trial Court in its detailed judgment and decree had taken note of the fact that the description of the property claimed by the plaintiffs were not tallying with the documents produced by the plaintiffs and since there was discrepancies in the measurements as claimed by the plaintiff with that of the documents produced, the plaintiff had not established the identity of the property. Therefore, the Trial Court had declined to grant the injunction. It is his further submission that the Trial Court had also taken into consideration the violation of conversion order by the plaintiff, disentitling any equitable relief at the hands of the Trial Court. Thus, he submits that the First Appellate Court was not justified in interfering and reversing the judgment and decree passed by the Trial Court giving raise to substantial question of law.

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Per contra, learned counsel for the respondent/plaintiff justifying the judgment and order passed by the First Appellate Court submits that except general denial of the case of the plaintiff, defendants have not pleaded anything indicating their share, right, title and interest over the suit schedule property. He further submitted that neither in the pleadings nor in the evidence did the defendants bring on record the manner and mode in which they acquired the property. He further submits that the defendant is not even aware of the extent of the property which according to them belonged to their grand

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9 - NC: 2024:KHC:9413 RSA No. 356 of 2024

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father-Chikkanna or the property which they allegedly claim to be in possession of. He submitted that the defendants do not dispute the title of the plaintiff except finding discrepancies in the measurement given in the deed of gift. Thus, he submits that the Trial Court which had exceeded the pleadings of the parties had erred in dismissing the suit, which anomaly was set right by the First Appellate Court on appreciation of the evidence. He submits that no substantial question of law would arise for consideration in this appeal, hence seeks for dismissal of the appeal.

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Heard. Perused the records.

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From the perusal of the pleadings in the plaint and the written statement, what gets clear is that the claim of the plaintiff that the property belonging to Smt.Amba Bai is not disputed by the defendants either. All that the defendants have contended in the written statement is that said Smt.Amba Bai had sold certain portions of the said property out of total extent of 2 acres and 17 guntas, as such she could not have executed the gift deed to an extent of 2 acres and 17 guntas in favour of the plaintiff. Expect this there is no denial by the defendants with regard to right, title and interest of either of Smt.Amba Bai or of the plaintiff.

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On the other hand though it is contended by the defendants that the suit schedule property belonged to their grand father, they have not produced any documentary

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evidence in justification of their claim. Though, learned counsel for the appellant vehemently referred to para No.28 and 29 of the Trial Court judgment and decree, wherein there is a mention with regard to revenue records produced at Ex.D10 referring to mutation register entry dated 27.06.2016, the same is hardly of any avail to the defendants.

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The suit is of the year 2012, the said revenue records is of the year 2016 which is much subsequent to the date of filing of the suit. That apart as rightly taken note of by the First Appellate Court, defendant's witness in his crossexamination has categorically admitted that the property is in possession of the plaintiff being enclosed by the stone slabs. He has also admitted that he has neither challenged the conversion order obtained by the plaintiff nor documents or the revenue records. The First Appellate Court has also adverted to the position of law that in a suit for injunction of this nature all that is required to notice, that if the plaintiff had made out a case for possession , though invariably issue of title would be adverted to, and in the fact circumstance of the case the First Appellate Court has came to the conclusion that perusal and appreciation of the material evidence produced by the plaintiff would indicate that the plaintiff had established title and possession over the suit schedule property which on the contrary defendants had failed to disprove or set-up any title in their favour. Weighing this

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11 - NC: 2024:KHC:9413 RSA No. 356 of 2024

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material evidence the First Appellate Court has reversed the judgment and decree passed by the Trial Court and has granted the relief of permanent injunction. The appreciation of the evidence by the First Appellate Court cannot be found fault with, no substantial question of law would arise for consideration in this appeal. Accordingly, appeal is dismissed confirming the judgment and order passed by the First Appellate Court.

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Not withstanding the dismissal of the appeal, appellant/defendant is at liberty to avail such remedy if permissible under law.

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Sd/JUDGE

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List No.: 2 Sl No.: 29

Sri Narayana (Naani) v. Sri Shivaji Rao

Case brief

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Sri Narayana (Naani) v. Sri Shivaji Rao

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