Suit for permanent injunction over A and B schedule properties failed in trial court and first appeal; legal representatives appealed. Court commissioner found B schedule property was an 8-foot public road, and plaintiff failed to prove possession or interference. No substantial question of law arose; second appeal dismissed.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 581 OF 2015 (INJ)
BETWEEN:
Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA
…APPELLANTS
(BY SRI. SIDDAMALLAPPA P M., ADVOCATE)
AND:
…RESPONDENTS
(BY SRI. T.H. NARAYANA, ADVOCATE FOR R1 SRI. A.V. GANGADHARAPPA, ADVOCATE FOR R2)
THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 3.3.2015 PASSED IN R.A.NO.28/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., CHANNAPATNA, RAMANAGARA DISTRICT, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 15.12.2012 PASSED IN OS.NO.158/2001 ON THE FILE OF THE ADDL. CIVIL JUDGE & JMFC., CHANNAPATNA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellants challenging the judgment and decree dated 03.03.2015,
passed in R.A.No.28/2013 by the learned Senior Civil
Judge and JMFC, Channapatna, and the judgment and decree dated 15.12.2012, passed in O.S.No.158/2001 by the Additional Civil Judge and JMFC, Channapatna.
Plaintiff filed a suit for permanent injunction restraining the defendant No.1 from entering in the A and B schedule properties and obstructing the plaintiff from putting up compound and sought permanent injunction against the defendant No.2 from removing the washing stone and ground level water tank from the 'B' schedule property. It is the case of the plaintiff that A and B schedule properties are the part and parcel of each other. It is contended that suit schedule properties and its
NC: 2024:KHC:36405 RSA No. 581 of 2015
adjacent sites are all formed out in the land bearing Sy.No.517 of Channapatna Town by its original owner, M.V.Vardharaju S/o Vardegowda. He formed the sites and sold them to various persons. The suit schedule property is purchased by one G.S. Siddaiah under the registered sale deed dated 25.08.1980, and the said Siddaiah sold
the suit property in favor of Kamalamma under the registered sale deed dated 13.11.1981. The said Kamalamma is the wife of plaintiff, who gifted the suit property in favor of plaintiff under the registered gift deed dated 09.09.1983. Since then, the plaintiff is in possession
and enjoyment of the suit schedule properties. The plaintiff constructed the house on A-schedule property, and on B-schedule property there is a washing stone platform and a ground-level water tank. The plaintiff obtained the construction permission to construct the compound wall around A and B schedule properties. Due to financial problems, he could not complete the construction. During the month of April 2011, an arrangement was made to proceed with the construction of the compound. The
defendant No. 2 at the instance of defendant No. 1 obstructed the construction. It is contended that defendant
No. 1 has no right to obstruct the plaintiff from constructing the compound wall. Hence, I prayed to decree the suit.
denying the averments made in the plaint. It is denied that suit schedule B property is part and parcel of suit schedule A property. It is contended that there exists no B schedule property as alleged by the plaintiff in the plaint. It is contended that original owner M.V.Vardharaju sold the site bearing No.2289/E in favor of Smt. Sumitra under the registered sale deed dated 20.05.1982, and the said Sumitra in turn sold the same in favor of Ratnabai under the registered sale deed dated 20.10.1984, and the defendant purchased the said site from Ratnabai under the registered sale deed dated 05.03.2001, and defendant No.1 became the absolute owner of the suit schedule property. It is contended that the plaintiff, by suppressing
the facts, filed this suit on false and baseless grounds.
Hence, I prayed to dismiss the suit against defendant No. 1.
assessment of oral and documentary evidence, dismissed the suit of the plaintiff with costs vide judgment dated 15.12.2012. Legal representatives of the plaintiff aggrieved by the judgment and decree passed by the trial court have preferred an appeal in R.A.No.28/2013 on the file of the senior civil judge and JMFC, Channapatna.
B property is a part and parcel of Schedule A property, and plaintiff obtained the necessary permission from the concerned authority for the purpose of construction of a compound wall around A and Schedule B properties. The plaintiff could not construct the compound wall due to financial distress. When the plaintiff started constructing the compound wall around A and B schedule properties, the defendants started obstructing from using the road. The said aspect was not properly considered by the courts below and passed the impugned judgments. Hence, on these grounds, prays to allow the appeal.
representatives of the plaintiff.
in order to prove their case, examined herself as PW.1, and she reiterated the plaint averments in the examination-in-chief and produced 28 documents marked as Exs. P1 to 28. The plaintiff also examined one Siddaraju
as PW.2, who has deposed in the same line, and reiterated the examination-in-chief of PW.1. In the course of crossexamination, it was elicited that there is no existence of property of PW.2 on the northern side of the property of plaintiff and also elicited that on the eastern side of the suit property there is no mention about the existence of road in the sale deed of the plaintiff. The defendants have disputed regarding the existence of B schedule property, and it is contended that B schedule property is the public road, and in order to establish the existence of B schedule property as a public road, a PWD engineer was appointed as a Court commissioner. He has submitted a report to the Court reporting that B-schedule property is existing on the public road measuring 8 feet. Though the plaintiff has filed an objection to the commissioner report, the plaintiff has not taken any steps to cross-examine the court commissioner. Further PW.1 in the course of cross examination admitted that she has purchased the property as per the measurement mentioned in Ex.P9, i.e., the registered sale deed, which discloses that east-west 26
NC: 2024:KHC:36405 RSA No. 581 of 2015
feet X leaving 8 feet for the purpose of road and towards north-south, the western side 41 feet and the eastern side 47 feet. From the perusal of oral evidence placed on record, the plaintiff has failed to prove that B schedule property is part and parcel of A schedule property, and the plaintiff has failed to prove his ownership and possession over the B schedule property. In a suit for bare injunction, the Court is required to see whether the plaintiff was in possession of the suit schedule property as on the date of the institution of the suit and alleged interference. In the instant case, the plaintiff has failed to establish his possession over the suit schedule property as of the date of suit.
NC: 2024:KHC:36405 RSA No. 581 of 2015
decree passed by the trial court is perverse. Both the courts below have concurrently recorded the finding of fact against the plaintiff, observing that the plaintiff has failed to establish his possession and alleged interference by the defendants and rightly passed the impugned judgments. I do not find any substantial question of law that arises for consideration in this appeal.
ORDER
The appeal is dismissed.
The judgments and decrees passed by the courts below are hereby confirmed.
No order as to the costs.
SD/(ASHOK S. KINAGI) JUDGE
sks
2 issues framed by the court
Whether the plaintiff proved possession of the B schedule property and that it was part and parcel of the A schedule property so as to sustain a suit for bare injunction.
Whether any substantial question of law arose from the courts below' concurrent findings dismissing the suit.
1 provisions across 1 enactments
Smt Kamalamma
Smt S Veena
Smt S Poornima
Smt S Sowmya
Sri Mohan
The City Municipal Council Channapatna Town
Ashok S. Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
