Kamala D/O Balagouda Patil Vs Kalavati D/O Appanagouda Patil

MISS. SARALA D/O. BALAGOUDA PATIL, AGE: 64 YEARS, OCC: HOUSEHOLD WORK, R/O: SANSUDDI GALLI, SANKESHWAR, TQ: HUKKERI, DIST: BELGAVI – 591 309. SINCE DECEASED BY HER LRS WHO IS ALREADY ON RECORD APPELLANT NO.1.

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…APPELLANTS

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(BY SRI. B. S. KAMATE, ADVOCATE)

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AND:

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Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad

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KALAVATI D/O. APPANAGOUDA PATIL, (AFTER MARRIAGE KALAVATI W/O. RUDRAGOUDA PATIL), AGE: 42 YEARS, OCC: HOUSEHOLD WORK AND AGRICULTURE, R/O: SANKESHWAR, TQ: HUKKERI, DIST: BELAGAVI – 591 309.

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…RESPONDENT

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(BY SRI. SHIVARAJ S. BALLOLI, ADVOCATE)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF C.P.C., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 19.06.2014 PASSED BY THE SENIOR CIVIL JUDGE HUKKERI, IN R.A.NO.9/2013 AND TO RESTORE THE JUDGMENT AND DECREE DATED 14.12.2012, PASSED BY THE LEARNED CIVIL JUDGE AND JMFC, SANKESHWAR, IN O.S.NO.57/2007 BY ALLOWING THIS RSA WITH COSTS IN THE INTEREST OF JUSTICE.

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NC: 2025:KHC-D:7305 RSA No. 100521 of 2014

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HC-KAR

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

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

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With the consent of counsel for the parties, matter is taken up for final disposal.

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The present appeal is filed by the defendants No.1 and 2 being aggrieved by the judgement and decree dated 19.06.2014 passed in Regular Appeal in R.A.No.9/2013 on the file of the Senior Civil Judge, Hukkeri at Hukkeri (hereinafter referred to as ‘First Appellate Court’), by which the First Appellate Court while allowing the said appeal filed by the plaintiff, set aside the

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judgement and decree dated 14.12.2012 passed in O.S.No.57/2007 on the file of the Civil Judge and JMFC, Sankeshwar (hereinafter referred to as ‘Trial Court’) and decreed the suit.

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Brief facts of the case are that the plaintiff who is respondent herein filed the above suit in O.S.No.57/2007 seeking relief of permanent injunction

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restraining the defendants/appellants herein from

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interfering/causing obstruction in her construction of building over the suit property, which as described in the plaint is measuring 20 feet East-West and 30 feet NorthSouth forming part and parcel of CTS No.2118 totally measuring 338.44 sq. meters situated at Sansuddi Galli, Sankeshwar. Plaintiff claims to be the absolute owner in actual possession of the said property having been allotted as her share in the family partition dated 24.12.1992. That her name was entered into in the property register card based on the said partition. That there was an old house

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over the suit property which the plaintiff intended to demolish and construct a new house. Accordingly, she obtained permission from TMC, Sankeshwar on 07.03.2007. That the defendants having no manner of right, title and interest over the suit property, had filed an application before the Deputy Commissioner, Belagavi seeking to stop the construction by the plaintiff. That the Deputy Commissioner had passed an order of stay which was subsequently vacated and the plaintiff resumed the

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construction work. The defendants, however, on

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26.05.2007 came near the suit property, tried to obstruct the plaintiff from putting up construction of the building constraining her to approach the court by filing the present suit.

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Defendants filed written statement denying the plaint averments and also the description of the suit property. Alleging suppression of the true and material facts by the Plaintiff, it is contended that one Laxmangouda was the propositus of the family of the plaintiff and defendants, who had 3 sons by name Bhimagouda, Satigouda and Bharamagouda. Satigouda was adopted by one Honagouda. The said satigouda had no issues and he adopted Shidagouda son of his brother Bhimagouda. That after the adoption of Shidagouda, he was renamed as Balagouda. Defendants are the daughters of said Balagouda. Third son of Laxmangouda namely Bhamagouda had 3 sons by name Shankargouda, Appanagouda and Satigouda. Plaintiff Kalavati is the

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daughter of Appanagouda. Honagouda the adoptive father of Satigouda was the absolute owner in actual possession of open space bearing VPC Nos. 1526A, 1526B and 1672.

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That after the death of Honagouda, the name of his adopted son Satigouda was entered in respect of the said properties. VPC numbers of the said property were changed and subsequently new numbers were assigned. Old VPC No.1526A was assigned new VPC No.1803, old VPC No.1526B was assigned with new VPC No.1804 and old VPC No.1672 was assigned with new VPC No.1963. The said house properties are open space belonging to the

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family of Honagouda. The said properties belong to the adoptive family of satigouda, wherein the other two branches of Bhimagouda and Bharamagouda have no right, title and interest. Balagouda alone succeeded to

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these properties after death of satigouda. That after introduction of city survey in the Sankeshwar town, the CTS maps were prepared and CTS numbers were assigned. VPC No.1804 after exclusion of open space is numbered as CTS No.2125. VPC No.1963 is numbered as

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CTS No.2119 and name of Balagouda was shown as the

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owner. The City Surveyor has not measured the properties properly and not verified the actual wahiwat and the boundaries. The City Surveyor without any basis excluded open space at VPC No.1803 and part of VPC No.1804 and numbered it as CTC No.2118 illegally showing the name of Raosaheb Patil and others. In fact the defendants are in actual possession of CTS Nos.2118, 2119 and 2125. That the plaintiff has no manner of right, title and interest over the suit property. That taking undue advantage of the revenue entries, the plaintiff was attempting to put up the illegal construction. Hence, sought for dismissal of the suit.

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The Trial Court based on the pleadings, framed the following issues:

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“1) Whether the plaintiff proves that she is in possession of CTS No.2118 out of which western portion measuring 20'X30' situated at Sankeshwar?

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2) Whether the plaintiff proves that as per family partition dtd. 24-12-1992 the above suit properly allotted to the share of plaintiff?

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3) Whether the plaintiff proves that the defendant has causing illegal interference into the possession of the above said property?

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4) Whether the plaintiff proves that she has demolished a old house situated in the above suit property and constructed a new building in the same demolished old house?

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5) Whether the plaintiff proves that she is entitled for the relief of perpetual injunction as prayed for?

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6) What order or decree?”

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On appreciation of evidence, the Trial Court answered issue Nos.1 to 5 in the negative and consequently dismissed the suit. Being aggrieved, the plaintiff preferred a Regular Appeal in R.A.No.9/2013. The First Appellate Court framed the following points for its consideration:

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“1. Whether the appellant/plaintiff proves that she was in possession of suit property of suit property on the day of institution of suit?

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2. Whether the appellant/plaintiff proves that the respondents/ defendants have objected for her construction work in suit property?

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3. Whether the appellant/plaintiff proves that the trial Court has erred in passing the judgment and decree in O.S.No.57/2007 dated 14.12.2012 on the file of Civil Judge Court, Sankeshwar, it needs interference by this Court?

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4. What order or decree?”

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The First Appellate Court on re-appreciation, answered point Nos.1 to 4 in the affirmative and consequently allowed the appeal setting aside the judgement and decree passed by the Trial Court. Being aggrieved by the same, the defendants are before this Court.

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8. This Court framed the following substantial question of law for its consideration:

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i. Whether the First Appellate Court is justified in reversing the judgement and decree of the Trial Court ignoring the specific averments made by the defendants in thier written statement at paragraphs No.13 and 14 specifically denying the right, title and interest of the plaintiff over the suit property and claiming the same in themselves?

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Sri.B.S.Kamate, counsel appearing for the

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defendants/appellants submits that the issue involved in this matter is squarely covered by the judgement of the

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Hon’ble Apex Court in the case of Anathula Sudhakar vs.

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P. Buchi Reddy (Dead) by LRs. and Others reported in

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AIR 2008 SC 2033 which has not been taken note of by the First Appellate Court while dealing with the averments in the plaint and written statement. Referring to paragraphs No.11, 12 and 13 of the written statement, counsel submits that the defendants apart from denying the right, title and interest and possession of the plaintiff,

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have in extenso set forth their claim over the property. That even before the initiation of the present suit by the plaintiff, the defendants have initiated the proceedings before the Deputy Commissioner seeking rectification of measurement and number of the properties in question and the plaintiff was party to the said proceedings. He submits that the said proceedings culminated in an order dated 20.10.2022 passed in Writ Petition No.69283/2010, wherein this Court while disposing of the said writ petition

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has reserved liberty to the petitioner to seek appropriate remedy. He submits that in the light of the factual aspects of the matter and in the light of the law laid down in the

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case of Anathula Sudhakar supra, the substantial question of law raised needs to be answered in affirmative in favour of the appellants.

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Per contra, counsel appearing for the plaintiff submit that the plaintiff is claiming right over the suit property in terms of a deed of partition dated 24.12.1992 which had been entered into amongst her family members and the plaintiff in exercise of her ownership over the suit property, had rightly applied and obtained permission from the concerned TMC for the purpose of construction of residential house. That the said deed of partition and the permission granted by the TMC would indicate right, title and possession of the plaintiff over the suit property. By mere denial of the title in the light of the said factual aspects of the matter, relief of injunction as sought for by the plaintiff cannot be denied which aspect of the matter

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has been rightly taken note of by the First Appellate Court.

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Hence, submit that no substantial question of law arise for consideration.

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Heard. Perused the records.

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Though the plaintiff has claimed right, title and interest over the suit property by virtue of a partition deed dated 24.12.1992 for the purpose of seeking equitable relief of injunction restraining the defendants from causing obstruction in she putting up construction over suit property, Defendants at paragraphs No.11, 12 and 13 of their written statement apart from denying the right, title and interest of the plaintiff, have also set up their right, title and possession over the suit property. Para No.13 of written statement is extracted for immediate perusal.

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“13. After introduction of City survey to the Sankeshwar, Town, the CTS maps were prepared and CTS numbers were assigned VPC No.1804 after exclusion of open space is numbered as CTS No.2125, VPC No.1963, is numbered as CTS No.2119 and name of Balagouda was shown as owner. However, the VPC No.1803 Open space was assigned CTS No.2118 and the

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name of the Raosaheb Ningouda Patil, and Shankaragouda Bharamaougda Patil, were wrongly entered. The City surveyor has not to measured the properties properly and has not verified the actual vahiwat and the boundaries. The City surveyor has illegally without any basis has excluded the Open space of VPC No.1804 from CTS No.2125 and has included the entire open space of VPC No.1803 and part of VPC No.1804 and and numbered as CTS No.2118 and illegally shown the name of Raosahbe Patil, and others. In fact, the defendants are the absolute owners in actual possession of the CTS No.2118, 2119 and 2125.”

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The Hon’ble Apex Court in the case of Anathula

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Sudhakar supra, held that the suit for bare injunction would not be maintainable if there is a categorical denial causing cloud over the title of the plaintiff and the proper remedy therefore would be to seek substantive relief of declaration of title with consequential reliefs. In the light of the aforesaid factual and legal aspects of the matter, the substantial question of law is answered in the affirmative. The First Appellate Court ought not to have interfered with

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the judgement and decree passed by the Trial Court dismissing the suit.

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