Narayanaswamy Since Dead by His Lrs Vs Smt Ademma W/O Narayanaswamy

D) EHTIRAJ S/O LATE NARAYANSWAMY (WRONGLY SHOWN AS S/O GANGADHAR) AGE ABOUT 31 YEARS, D K HALLI VILLAGE & POST ROBERTSONPET HOBLI, BANGARPET TALUK, KOLAR DISTRICT - 563101.

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E) SMT THULASI W/O LATE GANGADHAR AGE 38 YEARS,

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D.K. HALLI VILLAGE & POST

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ROBERTSONPET HOBLI, BANGARPET TALUK

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KOLAR DISTRICT - 563 101.

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F) SHANKARAIAH S/O LATE NARAYASWAMY AGE 34 YEARS, M V NAGAR, OPPOSITE MARINA LODGE, M V NAGAR, D K HALLI ROAD BEML NAGAR POST ROBERTSONPET HOBLI, BANGARPET TALUK KOLAR DISTRICT - 563101

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G) BRAHMAIAH S/O LATE NARAYANASWAMY

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AGE 32 YEARS, R/O AT D K PLANTATION BEML NAGAR POST ROBERTSONPET HOBLI, BANGARPET TALUK KOLAR DISTRICT - 563 101

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… APPELLANTS

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(BY SRI. RAGHAVENDRA A. KULKARNI, ADVOCATE)

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AND:

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SMT ADEMMA W/O NARAYANASWAMY AGE 60 YEARS, R/O D K PLANTATION, BEML NAGAR POST, ROBERTSONPET HOBLI, BANGARPET TALUK, KOLAR DISTRICT - 563 101. DEAD ON 22.12.2024 APPL 1A TO G & R2 IS TREATED AS LRS OF DECEASED R1 AS PER ORDER DATED 07.11.2025

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SRI. DORAIAH, S/O NARAYANSWAMY AGE 35 YEARS R/AT D.K. PLANTATION, BEML NAGAR ROBERSONPET HOBLI, BANGARPET TALUK

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KOLAR DISTRICT - 563 101.

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... RESPONDENTS

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(BY SRI. D. PRABHAKAR, ADVOCATE FOR R1 & R2 (V/O DT.07.11.2025, APLT NO.1 (A TO G) & R2 ARE LRS OF DECEASED R1))

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THIS RSA IS FILED U/O 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 10.07.2009 PASSED IN R.A.82/2007 ON THE FILE OF THE ADDL. CIVIL JUDGE, (SR. DN.), K.G.F., ALLOWING THE APPEAL SETTING ASIDE JUDGMENT AND DECREE DATED 20.07.2007 PASSED IN O.S.83/2006 ON THE FILE OF THE PRL. CIVIL JUDGE, (JR. DN.), KGF .

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THIS RSA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 13.11.2025 COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

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CORAM: HON'BLE MRS JUSTICE M G UMA

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CAV JUDGMENT

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The defendants in OS.No.83/2006 on the file of the learned Principal Civil Judge (Junior Division), KGF (hereinafter referred as to 'the Trial Court'), is impugning the judgment and decree dated 10.07.2009 passed in RA.No.82/2007 on the file of learned Additional Civil Judge (Senior Division), KGF (hereinafter referred as to 'the First Appellate Court'), allowing the appeal by setting aside the judgment and decree passed by the Trial Court dated 20.07.2007 and decreeing the suit of the plaintiff for permanent injunction, restraining the defendants from interfering with the peaceful possession and enjoyment of the schedule properties.

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For the sake of convenience, the parties shall be

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referred to as per their rank and status before the Trial Court.

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Facts of the case in brief are that, the plaintiff -

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Smt. Adamma, filed the suit against defendant Nos.1 to 9 seeking permanent injunction, restraining them from interfering with her peaceful possession and enjoyment of the properties mentioned in the schedule. The schedule attached to the plaint describes four items of properties i.e.,:

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i.Survey No.61/2 (old survey No.23) measuring 3 acres out of 4 acres situated at D.K. Halli Plantation, Robertsonpet Hobli, Bangarpet Taluk with katha No.89 with the boundaries mentioned therein.

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ii.Survey No.20 measuring 2.20 acres out of 13 acres situated at the same D.K. Halli Plantation with the boundaries mentioned therein, containing various trees.

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iii.Survey No.22 measuring 4 acres at D.K Halli Plaintiation, with the boundaries mentioned therein, containing various mango, coconut and tamarind trees.

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iv.The tractor bearing registration No. KA-08T79 with shed and the house measuring 22 X 22 feet with a well and a vacant site having V.P. Khata No.19/2 situated at D.K. Halli Plantation, measuring East to West 40 feet, North to South 50 feet with the boundaries mentioned therein.

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It is contended by the plaintiff that she is the

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daughter of one Ammaniamma. During the lifetime of Ammaniamma, she had given some amount to the plaintiff. During her marriage, she had purchased the properties out of the amount paid by her mother. Item No.1 measuring 3 acres of land was purchased under the registered sale deed dated 13.02.1980 from one C.N. Rajagopal Gowda, and since then, the plaintiff is in possession and enjoyment of the same. The revenue record stands in her name. The plaintiff had availed loan by mortgaging the said property in favour of Canara Bank.

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The plaintiff contended that, she purchased Item No.2 under three different sale deeds i.e. 20 guntas of land under the sale deed dated 12.10.1972 from Bychappa, one acre of land under the sale deed dated 07.06.1978 from Narayanappa, and the another one acre of land under the registered sale deed dated 17.12.1992 from one Pillappa. Since

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then, the plaintiff is in possession and enjoyment of the properties, and the Katha stands in her name. The plaintiff has also purchased 2.20 acres of land in item No.3 under the registered sale deed dated 23.10.1968 from Venkata Bovi. She purchased 1.20 acres of land from D.V. Ramamurthy Gupta under the sale deed dated 17.04.1974. Thus, she became the owner in possession of 4 acres of land, and the katha stands in her name.

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It is contented that, Doddur Karpanana Halli Gram Panchayath has granted the parcel of land in No.4, and the possession certificate was issued in a favour of the plaintiff, and the katha stands in her name. The plaintiff being the owner was paying land revenue and the assessment tax in respect of the schedule properties regularly. She has raised various trees, dug bore-well and is in exclusive possession of the same.

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The plaintiff contended that the defendants along with unruly elements came to the schedule properties, and tried to interfere with her peaceful possession and enjoyment of the same on 10.06.2006. Therefore, the plaintiff filed a suit for permanent injunction restraining the defendants from

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interfering with her peaceful possession and enjoyment of the properties.

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Defendant No.5 has appeared before the Trial Court

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and filed his written statements denying the contentions taken by the plaintiff in the plaint. It is contented that the plaintiff is the wife of defendant No.1 and defendant Nos.2 to 9 are their children. The plaintiff and defendants are having joint family properties at D.K. Halli Plantation. Some of the properties came to defendant No.1 through partition amongst his brothers and out of the income, the suit schedule properties were purchased in the name of plaintiff. All the properties including the schedule properties are purchased from out of the joint family income or the joint family properties and the plaintiff is not in exclusive possession of the same. She is not entitled for the exclusive ownership. Therefore, the plaintiff is not entitled for the relief of permanent injunction against the family members. Defendant No.5 reserved his right to file a suit for partition and to claim his legitimate right in all the joint family properties. Accordingly, he prays for dismissal of the suit.

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None of the other defendants have contested the

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matter.

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On the basis of the pleadings, the Trial Court framed the following issues.

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"1. Whether the plaintiff proves his possession over the sit property on the date of suit?

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2. Whether he further proves that the defendants attempted to interfere with his possession?

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3. Whether the plaintiff is entitled for the permanent injunction sought?

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4. To what decree or order?"

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The plaintiff examined herself as PW1, got

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examined PWs.2 and 3, and got marked Exs.P1 to 20. Defendant No.5 examined himself as DW.1, got examined DWs.2 to 4, got marked Exs.D1 and 2 in support of his defence. The Trial Court after taking into consideration all the materials on record, answered Issue Nos.1 to 3 in the negative and accordingly, dismissed the suit of the plaintiff by holding that the plaintiff has not established the source of income for

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purchasing the schedule properties. Therefore, it cannot be held that she is in exclusive possession over the same.

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Being aggrieved by the same, the plaintiff has preferred an appeal in RA.No.82/2007. The First Appellate Court on re-appreciation of the materials on record, allowed the same by holding that, since the suit of the plaintiff is for bare injunction, title to the properties is not material to be considered, since all the revenue documents stands in the name of the plaintiff. The plaintiff is successful in proving her exclusive possession. Accordingly, the appeal was allowed and the suit of the plaintiff was decreed. Being aggrieved by the same, the defendants are before this Court.

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Heard Sri. Raghavendra A Kulkarni, learned counsel for the appellant and Sri. D Prabhakar, learned counsel for the defendant Nos.1 and 2. Perused the materials including the Trial Court records.

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Learned counsel for the appellant contended that the relationship between the parties is not in dispute. The plaintiff is the mother of the contesting defendant who is the appellant herein. Admittedly, plaintiff is a housewife who was

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not having any independent source of income. Defendant No.1

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is the husband, defendant Nos.2 to 9 are their children. Defendant No.1 was working in KGF and he has also acquired certain immovable properties. From the income of defendant No.1, he purchased the schedule properties in the name of the plaintiff. The Trial Court on proper appreciation of the materials on record, had dismissed the suit. But the First Appellate Court committed an error in decreeing the suit of the plaintiff, solely on the basis of registered Sale Deed and the Revenue Records, ignoring the fact that the appellant is one of the co-owner along with the other defendants. He contended that it is the settled position of law that no injunction could be granted against the co-owners. Ignoring this fact, the First Appellate Court decreed the suit of the plaintiff, which is erroneous.

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Learned counsel placed reliance on the decision of this Court in Tukaram and Ors v/s Mahadev and Ors¹ and Eswaraiah v/s BS. Siddalingappa and Others² , to contend that no injunction can be issued against a co-owner. He also placed reliance on the decision of this Court in Gabriel

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1 RSA 5192/2009 DD 17.03.2014

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2 ILR 1999 KAR 3037

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Bhaskarappa Kuri and Others v/s The United Basel Mission Church in India Trust Association and Others³ in support of his contention that the First Appellate Court committed an error in permitting the plaintiff - appellant to produce additional documents even though there is a clear bar under Order 41 Rule 27 of the Code Of Civil Procedure, 1908 (CPC). Thus, learned counsel for the appellant contended that the First Appellate Court has committed an error in decreeing the suit of the plaintiff ignoring the settled position of law.

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Per contra , learned counsel for the respondents opposing the appeal submitted that the plaintiff purchased the schedule properties under various sale deeds produced before the Court. All the revenue records with respect to the schedule properties are standing in the name of the plaintiff. Admittedly, it is the plaintiff who paid the tax or the revenue in respect of the schedule properties. The appellant has never paid revenue or the tax at any point of time. Other defendants including defendant No.1 have never contested the matter. The First Appellate Court was right in accepting the clinching documents

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3 ILR 2007 KAR 773

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that are produced by the plaintiff and decreeing the suit of the plaintiff. He submitted that the First Appellate Court by a reasoned order, decreed the suit of the plaintiff. Therefore, there are no merits in the appeal. Accordingly, prays for dismissal of the suit.

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Both the learned counsels submitted that the appellant / defendant No.5, filed the suit in OS.No.153/2006 before the Trial Court seeking partition and separate possession of various properties including the schedule properties. Both the learned counsel are not aware as to whether the suit was decreed or dismissed. However, they contend that the appellant has preferred Regular Second Appeal which is pending consideration before this Court in RSA.No.253/2016. However, learned counsel for respondent submits that even though RSA.No.253/2016 is said to have been filed in the year 2016, till day, the appellant has not taken any steps to serve notice on the respondent / plaintiff.

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18. Considering the contentions taken by the appellant, this Court vide order dated 23.07.2010 formulated the following substantial questions of law:

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"1) Whether the judgment and decree of the First Appellate Court is perverse in granting an injunction against the co-owner?

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2) Whether the judgment and decree of the First Appellate Court is perverse in not considering the admitted plea with regard to the status of the property?"

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It is the contention of the plaintiff that she purchased the schedule properties under various sale deeds and she is in exclusive possession and enjoyment of the same. The schedule properties purchased by the plaintiff under various sale deeds as produced by the plaintiff is not in dispute. However, the only contesting defendant No.5 has taken up a contention that the schedule properties were purchased from out of the joint family income and also from the salary of defendant No.1. It is pertinent to note that defendant No.1 or any other defendants have never contested the matter.

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The plaintiff who claims both the title and possession over the schedule properties is examined herself as PW.1 and got marked Exs.P1, 2, 17 to 19 - various sale deeds

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under which the plaintiff is claiming right. Exs.P3, 4, 13 and 14

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are the pahanies and possession certificate. Exs.P5 to P7 are the RTCs, Exs.P8 and 9 are the tax paid receipts. Exs.P10 to 12 are the mutation register extracts. Exs.P15 and 16 are the tax assessment extracts. The plaintiff who was aged 60 years at the time of filing the suit was successful in proving that she had purchased the schedule properties under the sale deed dated 23.10.1968 - Ex.P2, dated 17.04.1974 - Ex.P1, dated 12.10.1972 - Ex.P16, dated 07.06.1978 - Ex.P19, dated 17.12.1992 - Ex.P18, 13.02.1980 -Ex.P17. It is clear that the first property that was purchased in the name of plaintiff was on 23.10.1968.

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It is the contention of the plaintiff that her mother

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had given some amount to her and by utilizing the said amount, she started purchasing the properties. PW.1 has spoken to about the same in her evidence stating that her mother had given her Rs.5,000/- towards Arishina-Kumkuma which was utilized by her for purchasing the properties. Exs.P1

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to 15 supports the contention of the plaintiff, with regard to the revenue records, there is a presumption under Section 133 of

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the Karnataka Land Revenue Act, 1964. Unless the said presumption is rebutted, the defendant cannot deny the claim of the plaintiff.

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Since the plaintiff purchased the first property in the year 1968. Till 2006 when the suit came to be filed, none of the defendants have not claimed any right over the properties. It is only during 2006, that is after filing the suit by the plaintiff for permanent injunction, the suit in OS.No.153/2006 came to be filed by defendant No.5 seeking partition and separate possession. It is stated that the said suit was ultimately came to be dismissed and RSA.No.253/2016 is pending which was filed by the appellant himself. In the said suit, defendant No.5 is claiming partition and separate possession of his right. If defendant No.5 is successful in proving his contention that the schedule properties were purchased in the name of the plaintiff from out of the income of defendant No.1, or from out of the income that was derived from other joint family properties, he will be entitled for a share. But until his share is declared by the Trial Court in the suit instituted by him, the claim of the

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plaintiff which is based on title deed as well as the revenue records which are referred to above cannot be denied.

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Even, if the additional documents produced by the plaintiff before the First Appellate Court are to be ignored, the materials that are placed before the Trial Court are sufficient to answer the issues in her favour. From the Title Deed, the Revenue Reports and the evidence of PWs.1 to 3, the plaintiff is successful in proving her exclusive possession over the schedule properties and therefore she is entitled for a decree in her favour. However, the original plaintiff died during the pendency of this appeal she is now represented by one of the defendant, who is contesting the appeal.

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Admittedly, the Second Appeal in RSA.No.253/2016 is filed by the appellant herein. Pending consideration before this Court, the rights of the parties will be decided in the said appeal. Therefore, granting of permanent injunction in favour of the plaintiff will be subject to the result of RSA.No.253/2016 filed by the appellant. Simply because the Second Appeal is pending before this Court, the same cannot be a ground to reject the claim of the plaintiff for permanent injunction.

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I have gone through the judgment and decree passed by the Trial Court. It has committed an error in ignoring the presumption under Section 133 of the Karnataka Land Revenue Act, 1964 and accepting the defence taken by defendant No.5 to dismiss the suit. But the First Appellate Court on re-appreciation of the materials on record has arrived at a right conclusion. I do not find any illegality or perversity in this case. Hence, I answer both the substantial questions of law in favour of the plaintiff and against the defendants and proceed to pass the following:

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ORDER

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The appeal is dismissed with costs.

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Registry is directed to send back the Trial Court records along with the copy of this judgment.

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SD/-

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(M G UMA) JUDGE

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PNV - List No.: 1 Sl No.: 7

Narayanaswamy Since Dead by His Lrs v. Smt Ademma W/O Narayanaswamy

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Narayanaswamy Since Dead by His Lrs v. Smt Ademma W/O Narayanaswamy

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