Dismissed

Smt K H Prabhavathi v. Smt Kumari Bayi

Karnataka HC25 Sept 2024RSA/460/2024

Case brief

AI extract

What is this about?

Second appeal in a civil suit for injunction and recovery of possession. The Court found the plaintiff entitled to the property and having granted the defendant temporary leave to stay which was abused. The defendant failed to prove permissive possession.

What did the court decide?

Rejected the second appeal, affirmed the lower courts' decree directing the appellant/defendant to vacate the property, and held no substantial question of law arose.

Smt K H Prabhavathi Vs Smt Kumari Bayi — Partition | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:39680 RSA No. 460 of 2024

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 25^TH DAY OF SEPTEMBER, 2024

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 460 OF 2024 (INJ)

¶6

BETWEEN:

¶7

SMT. K.H. PRABHAVATHI, D/O NAGESHA, AGED ABOUT 51 YEARS, R/O MENASOOR VILLAGE, N.R. PURA TALUK, BY HER GPA HOLDER SRI. SHIVASIDDHARTHA N., S/O D. NAGESHA, AGED ABOUT 27 YEARS, R/O MENASOOR VILLAGE, N.R. PURA TALUK, CHIKMAGALURU DISTRICT 577 134

¶8

…APPELLANT

¶9

(BY SRI. H. MALATESH, ADVOCATE)

¶10

Digitally signed by SHARMA ANAND CHAYA Location: High Court of Karnataka

¶11

AND:

¶12

SMT. KUMARI BAYI, W/O DEVARAJA, AGED ABOUT 49 YEARS, R/O MENASOOR VILLAGE, N.R. PURA TALUK, CHIKMAGALURU DISTRICT 577 134

¶13

…RESPONDENT

¶14

(BY SRI. SANDESH KUMAR M., ADVOCATE)

¶15

¶16

NC: 2024:KHC:39680 RSA No. 460 of 2024

¶17

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 26.09.2023 PASSED IN RA NO.10/2023 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, N.R.PURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 02.02.2023 PASSED IN OS.NO.18/2018 ON THE FILE OF THE CIVIL JUDGE AND JMFC, N.R.PURA.

¶18

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶19

CORAM: HON'BLE MR JUSTICE E.S.INDIRESH

¶20

ORAL JUDGMENT

¶21

This appeal is preferred against the judgment and decree dated 26.09.2023 in R.A.No.10/2023 on the file of the Senior Civil Judge and JMFC at N.R. Pura, Chikmagaluru District, dismissing the appeal and confirming the judgment and decree dated 02.02.2023 in O.S.No.18/2018 on the file of the Civil Judge and JMFC at N.R. Pura, Chikmagaluru District, decreeing the suit of the plaintiff.

¶22

3 - NC: 2024:KHC:39680 RSA No. 460 of 2024

¶23

For the sake of convenience the parties are referred

¶24

to as per their ranking before the Courts below.

¶25

The plaintiff has filed suit in O.S.No.18/2018 stating that the suit schedule property has been granted to the plaintiff and plaintiff has put up construction in the suit schedule property and defendant without any semblance of right, interfered with the suit schedule property and as such, the plaintiff has filed suit seeking relief of injunction in O.S.No.18/2018. On service of notice, defendant entered appearance and filed written statement stating that the defendant is in possession of the suit schedule property and accordingly sought for dismissal of the suit.

¶26

The Trial Court based on pleadings on record formulated issues for its consideration. In order to establish their case, plaintiff has examined two witnesses as PWs.1 and 2 and got marked 15 documents and same were marked as Exs.P1 to P15. Defendant has examined two witnesses as DWs.1 and 2 and produced 11

¶27

¶28

NC: 2024:KHC:39680 RSA No. 460 of 2024

¶29

documents and same were marked as Exs.D1 to D11. The Trial Court after considering the material on record by judgment and decree dated 02.02.2023, decreed the suit and directed the defendant to vacate and hand over the suit schedule property to the plaintiff. Feeling aggrieved by the same, the defendant has preferred R.A.No.10/2023 before the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court after considering the material on record by its judgment and decree dated 26.09.2023 dismissed the appeal and feeling aggrieved by the same, the defendant has preferred this Regular Second Appeal.

¶30

Heard Sri H. Malatesh, learned counsel for the appellant and Sri Sandesh Kumar M., learned counsel for the respondent.

¶31

Sri H. Malatesh, learned counsel appearing for the appellant contended that both the Courts below have not considered the fact that the plaintiff is in possession of the

¶32

5 - NC: 2024:KHC:39680 RSA No. 460 of 2024

¶33

suit schedule property and the defendant has produced Exs.D2 to D8 to establish that the plaintiff is in possession of the suit schedule property and therefore, the finding recorded by both the Courts below requires to be interfered with in this appeal.

¶34

Per contra, Sri Sandesh Kumar, learned counsel appearing for the respondent sought to justify the impugned judgment and decree passed by both the Courts below and submitted that the suit schedule property has

¶35

been granted in favour of the plaintiff and further the plaintiff has permitted the defendant to stay in the suit schedule property for two months. However, taking advantage of the same, the defendant is continued to stay in the suit schedule property and therefore, the plaintiff has caused notice to the defendant to vacate the suit schedule property and accordingly sought for dismissal of the appeal.

¶36

¶37

NC: 2024:KHC:39680 RSA No. 460 of 2024

¶38

Having taken note of the submission made by the learned counsel appearing for the parties, it is not in dispute that the land in question has been granted in favour of the plaintiff as per Ex.P7 and Ex.P11. It is the case of the plaintiff that the plaintiff has allowed the defendant to stay for two months. However, taking advantage of the fact that the defendant is the member of the Grama Panchayat, has continued to stay in the suit schedule property, despite the plaintiff's request to the defendant, to vacate the premises in question.

¶39

In that view of the matter, taking into consideration the fact that the plaintiff has caused notice to the defendant to vacate the suit schedule property and that apart, the defendant has not proved her case with regard to the permissive possession in respect of the schedule property and also taking into consideration the finding recorded by the Trial Court in O.S.No.14/2018 (Ex.P14), I am of the view, that the appellant has not made out a case for interference in this appeal. Accordingly, both the

¶40

¶41

NC: 2024:KHC:39680 RSA No. 460 of 2024

¶42

Courts below taking into consideration, oral and documentary evidence on record, rightly rejected the claim made by the defendant.

¶43

In that view of the matter as the appellant/defendant has not made out a case for interference in this appeal and no substantial question of law is required to be framed under Section 100 of the Code of Civil Procedure. Hence, the appeal is rejected.

¶44

SD/(E.S.INDIRESH) JUDGE

¶45

NG List No.: 1 Sl No.: 39

Smt K H Prabhavathi v. Smt Kumari Bayi

Case brief

What is this about?

What did the court decide?

Smt K H Prabhavathi v. Smt Kumari Bayi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Chowdappa Vs Superintendent Engineer

Neelamma Vs Superintendent Engineer

Smt. Prema W/O Shivarudrappa Vs Smt H.L. Gowramma

Sri Here Ammanavara Basadi Vs Sri Bharath Shetty

Mudasir Pasha Vs Smt B Jayamma

Smt. Jayalakshmamma Vs Smt. Gowramma