Smt. Maliyamma Vs Madihallappa

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 07.09.2021 PASSED IN R.A.NO.30/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HOSADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.08.2019 PASSED IN O.S.NO.90/2013 ON THE FILE OF THE ADDITIONAL CIVIL JDUGE AND JMFC, HOSADURGA.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission. Heard the

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learned counsel for the appellants.

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HC-KAR

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This Court was heard the matter on 16.06.2025

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and the learned counsel for the appellant’s counsel sought time of two weeks to get the certified copies of the depositions and exhibits and submits that without the documents and exhibits, he is unable to present the case when the matter was heard in part earlier and hence this Court granted time on 16.06.2025 and adjourned the matter to 30.06.2025 and on 30.06.2025 again counsel sought time and ordered to list the matter today and counsel again seeks time and no grounds to adjourn the matter. This matter was heard earlier and today also and the appeal is filed against the concurrent finding of Trial Court and Appellate Court.

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The factual matrix of case of plaintiff in O.S.No.90/2013 before the Trial Court while seeking the relief of declaration and permanent injunction, it is contended that plaintiff is the owner of the suit schedule property and also he is in possession over the suit schedule property and also contend that the judgment and

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decree passed in O.S.No.70/2008 is not binding on him and the same is null and void and also sought for the relief of both declaration as well as possession. The defendants have appeared and took the specific defence that they were in owners and in lawful possession over the written statement schedule property. It is also contended that suit is barred by limitation and also the specific defence in the written statement that sale deed dated 21.09.1959 executed in favour of the plaintiff is null and void and not binding on the right, title or interest and possession of the defendants and also sought the relief in terms of the contention raised in the written statement . The Trial Court having perused the pleadings of the plaintiff and also the defendant, framed the issues and allowed the parties to lead evidence before the Court and having considered both oral and documentary evidence answered the issue No.1 as partly affirmative in coming to the conclusion that they are in possession, but regarding ownership is concerned, declined to grant the relief of declaration and also

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HC-KAR

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answered the issue No.2 as affirmative in coming to the

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conclusion that judgment and decree passed in O.S.No.70/2008 is not binding on him and the same is also null and void and answered the issue No.3 partly in the affirmative that he is entitled for the relief as sought.

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The other contentions of the defendants that they are the owners and they are in lawful possession and suit is barred by limitation and also the sale deed dated 21.09.1959 executed in favour of the plaintiff is null and void and not binding on the right, title or interest and possession over the property of the written statement are all answered as negative and also comes to the conclusion that defendant is not entitled for the relief as sought in the written statement and partly decreed the suit granting only relief of permanent injunction having considered the admission on the part of D.W.1 who categorically admitted that plaintiffs are in possession of the property. In paragraph No.22 discussed in detail that plaintiff has not produced any document to show that Sy.No.28/10 mentioned in

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Ex.P.2 and Ex.P.3 has been changed or renumbered as 119 Aralihally village by producing the Akarbandh. The counsel appearing for the defendant Nos.1 and 2 himself has suggested in the cross examination to the P.W.1 to P.W.4 that the suit schedule property and as well as the written statement schedule property is one and the same. He also suggested that defendant Nos.1 and 2 are enjoying the suit schedule property rather suggesting the written statement schedule property and also the Trial Court taken note of the very suggestion itself is the reflection of case of the defendants. The defendant Nos.1 and 2 also particularly suggested to P.W.2 in the crossexamination that both the properties are one and the same and apart from taking note of the said suggestion as well as the evidence, the D.W.1 categorically admitted that in the compromise, 3 acres of land was given to them and got the same by the defendant No.3 and in terms of the compromise, except those two properties, no other properties are given to him and further categorically

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admitted that in the compromise decree, suit schedule property is not mentioned and except the suit schedule property other properties are mentioned and apart from that the categorical admission was given by D.W.3 in the cross examination who has been examined in support of the case of the defendant that 4 acres 26 guntas of land are in the possession of the children of the plaintiff and also further admitted that children of the plaintiff are plucking coconut. Having considered all these admissions and also the document of Ex.D.2 standing in the name of defendant Nos.1 and 2 comes to the conclusion that the plaintiffs have proved the possession even though they have not proved the ownership and hence granted the relief.

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Being aggrieved by the order of the Trial Court, an appeal is filed in R.A.No.30/2019 and the Appellate Court having considered the grounds urged in the appeal memo, formulated the point whether the defendants have established they are the absolute owners of the suit

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schedule property and whether the defendants had established the sale deed dated 21.09.1959 is null and void and not binding upon them and also whether the defendants had established they are entitled for the counter claim as sought and also whether judgment and decree of the Trial Court requires interference.

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The First Appellate Court also having re-assessed the material available on record answered all the points as negative and also in detail discussed the documents which have been produced by the defendant since defendant claims that they are the owners and also they are in possession and in paragraph No.28 taken note of that as per Ex.P.2 registered sale deed, the katha was also mutated in the name of the plaintiff as per Ex.P.3 mutation register. But, as per the Ex.P.3 mutation register, the katha was not changed in the name of the plaintiff as per Ex.P.2 and Ex.P.3 documents even though sale deed was registered and as per Ex.P.2, katha was also mutated in the name of the plaintiff as per Ex.P.2, but

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RTC was not stood in the name of the plaintiff. The RTC of suit property stands in the name of the father of defendant No.1 Sanna Siddappa and also having perused the documents produced by the plaintiff, the husband of defendant No.1, Sanna Siddappa and Thimmanna son of Rangegowda purchased the suit schedule property as per Ex.P.9 registered sale deed. Thereafter, they have sold the suit property to the vendor of the plaintiff that is Siddappa through registered sale deed dated 25.03.1959 as per Ex.P.10, the said Siddappa in turn sold the suit schedule property to the plaintiff as per Ex.P.2 registered sale deed. The First Appellate Court also taken note of the documents which have been placed on record and also comes to the conclusion that Ex.P.2 and Ex.P.10 are 30 years old documents and under Section 90 of Evidence Act presumption can be raised that those documents are correct and no need to prove the same and the First Appellate Court considering material available on record and also the admission on the part of the witnesses who

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have been examined on behalf of the defendant, comes to the conclusion that when the defendants also not proved that Ex.P.2 sale deed is created one and when they have not challenged Ex.P.10-sale deed and further they fails to establish that they are in possession, the First Appellate Court comes to the conclusion that Trial Court not committed an error in granting the relief of permanent injunction and affirmed the judgment of the Trial Court.

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Being aggrieved by concurrent finding of both the Courts regarding possession is concerned, the very contention of the appellant’s counsel that both the Courts have committed an error in appreciating the material on record and in the appeal, it is contended that the decree passed by the Trial Court as well as the First Appellate Court in dismissing the counter claim of the defendants is not in accordance with law even though defendants have made out a case for granting the relief and to grant the counter claim and also counsel would vehemently contend that granting of an order of injunction in declining to grant

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the relief of declaration is erroneous and hence this Court

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has to frame substantive question of law.

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The counsel appearing for the appellant also relies upon judgment of Apex Court passed in SLP (C) No.13459/2024 in case of Nikhila Divyang Mehta and another V/s Hitesh P.Sanghvi and others dated 15.04.2025 and brought to notice of this Court paragraph No.29 wherein discussion was made with regard to when the relief is sought in respect of the primary relief claim therein is to declare the Will and the codicil to be null and void and also all subsequent proceedings thereto wherein an observation is made that when the plaintiff has claimed permanent injunction, in addition to the same, the other reliefs are dependent upon the first relief and cannot be granted until and unless the plaintiff succeeds in the first relief. Therefore, once the plaint or the suit is in respect of the main relief stands barred by time, the other ancillary relief claimed therein also falls down. The principles therein in the judgment is not applicable to the facts of the

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case on hand wherein the relief sought was declined to grant the same on the ground of limitation and in the case on hand, when the issue of limitation is also raised before the Trial Court and the same is considered as Issue No.5 and same is answered as negative by the Trial Court in coming to the conclusion that suit is not barred by limitation and First Appellate Court also re-considered the material on record regarding limitation as well as other grounds which are urged in the appeal and confirmed the same.

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Now, the very contention that there cannot be any order of permanent injunction in the absence of relief of declaration. The said submission cannot be accepted while seeking the relief of permanent injunction, Court has to look into the material on record whether on the date of filing of the suit, whether the plaintiffs are in possession of the suit schedule property and whether there is any interference in respect of the suit schedule property is concerned and very suggestions made to the defendant

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during the course of cross examination of P.W.1 is very clear that the claim made by the plaintiff and claim made by the defendant is one and the same and the same has been extracted by the Trial Court and when such being the case, the interference is proved and with regard to the possession is concerned there is a clear admission on the part of the D.W.1 and D.W.3 that children of the plaintiffs are in possession of the suit schedule property and they are also plucking the coconut from the suit schedule property and when such admission is given, I do not find any error committed by the Trial Court as well as the First Appellate Court in granting the relief of permanent injunction declining to grant the relief of declaration and only Court has to look into the possession whether the plaintiffs are in possession as on the date of filing the suit and whether there is interference by the defendants and the same is substantiated by the plaintiff and also the admission was taken note of by both the Courts and hence there are no grounds to admit and frame any substantive

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question of law in respect of granting of relief of permanent injunction and the same is based on oral and documentary evidence available on record and hence no grounds to admit and frame substantive question of law

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since the same is not involved in the matter.

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