Smt. Parvathamma Vs Ganesh Kumar

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 04.01.2025 PASSED IN R.A.NO.5/2023 ON THE FILE OF PRL. SENIOR CIVIL JUDGE AND JMFC, BHADRAVATHI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 01.10.2022 PASSED IN O.S.NO.123/2014 ON THE FILE OF C/C. IV ADDITIONAL CIVIL JUDGE AND JMFC, BHADRAVATHI.

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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 and I have heard learned counsel for the appellants. Though, the respondent is served, he has remained unrepresented.

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This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.

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The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of permanent injunction is that plaintiff’s grand-mother Smt. Rajamma, W/o.Chinnaswamy is the grantee of agricultural land to an extent of 1 acre, 13 guntas in Sy.No.54/42 of Devarahalli Village, Bhadravathi Taluk, during the year 1999 i.e., dated 01.01.1999. It is contended that grand-mother died on

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19.10.2012 and after that, property is enjoyed by son Gunashekar, the father of the plaintiff and plaintiff and other family members, being successors of late Rajamma. The plaintiff is in possession and cultivation and enjoyment of the suit schedule property growing coconut and arecanut and also doing poultry farm and there is gowdown in the land. The defendants having no right, title or interest over the suit schedule property made an attempt to interfere with possession on 08.03.2014. The defendants have uttered that they have purchased the property under the agreement and they will dispossess the plaintiff from the property by using force and without any other alternative, filed the suit for the relief of permanent injunction.

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The defendants appeared and filed written statement contending that Rajamma along with her sons Gunashekar, Thangamani and her daughter-in-laws Rajamani, wife of late Nagendra, Malleswari, wife of Gunashekara and her grand-sons of Rajamma i.e., Ganesh Kumar (plaintiff), Prashanth Kumar entered into sale agreement with B.S.Chandrasekhar, who is the husband of defendant No.1 and

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father of defendant Nos.2 and 3 to sell the suit schedule property for a valuable consideration of Rs.9,54,000/- and after receiving a sum of Rs.8,29,000/-, they have executed a registered sale agreement in favour of B.S. Chandrasekhar on 22.09.2010. In terms of the agreement, they agreed to execute registered sale deed in favour of B.S. Chandrasekhar within 35 months from the date of agreement by receiving the balance sale consideration amount of Rs.1,25,000/-. But, contend that said B.S. Chandrasekhar was put in possession of the plaint schedule property. After the sale agreement, said B.S.Chandrasekhar and his wife and children made all efforts and invested the amount of Rs.3 to 4 lakhs and planted coconut trees and also areca plants and he was ready and willing to perform his part of contract. But, in the meanwhile, the said B.S. Chandrasekhar passed away on 16.10.2013 leaving behind the defendants as legal heirs. Even, Rajamma also passed away on 19.10.2012. After the death of Rajamma, the plaintiff and other legal heirs of Rajamma failed to perform their part of contract. Hence, the defendants issued legal notice and also took the contention that suit schedule property is granted under SC/SC quota. It is also contended that

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defendants are in possession of the property and they have reserved their right to file the suit for specific performance.

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The Trial Court having considered the pleadings of plaintiff and defendants, framed the issues and allowed the parties to lead evidence. The plaintiff examined himself as P.W.1 and examined one witness as P.W.2 and got marked the documents as Exs.P1 to P23. Though, the defendant No.3 got examined as D.W.1, but not produced any document and did not tender for cross-examination.

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The Trial Court having considered the pleadings of parties, answered issue Nos.1 and 2 as ‘affirmative’ and issue No.3 as ‘negative’ with regard to suit itself is not maintainable without seeking the relief of declaration and granted the relief of permanent injunction in detail discussing the same in paragraph Nos.14 and 15. Having considered the documents of Exs.P1 to 23, the same discloses that plaintiff is in possession of the property and the contention that without seeking the relief of declaration cannot maintain a suit for bare injunction was also considered by the Trial Court in paragraph No.15 and comes to the conclusion that though defendants claim that they

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are in possession of the property, nothing is placed on record to establish their possession.

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Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.5/2023 and the First Appellate Court also having considered the grounds has formulated the points whether the learned trial Judge was justified in holding that respondent is in possession and enjoyment of the suit property, whether the learned trial Judge is justified in decreeing the suit of the respondent granting the relief of permanent injunction and whether it requires interference. The First Appellate Court also having reassessed the material available on record, particularly with regard to possession is concerned, taken note of the documents which have been produced before the Trial Court and discussed the same in paragraph No.17 and also taken note of the very contention of the defendants with regard to sale agreement is concerned. At the time of filing of the suit and written statement, no doubt, suit is not filed for the relief of specific performance, now, the counsel appearing for the appellants would submit that suit is filed for the relief of specific

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performance and the same is granted and now the second appeal is also pending before this Court. It is also contended that the First Appellate Court also having considered both oral and documentary evidence, taken note of the fact that property was granted in favour of grand-mother and thereafter, transferred to the name of the plaintiff and reconsidered both oral and documentary evidence i.e., the documents Exs.P1 to P23 i.e., 3 electricity bills, electricity receipts, legal notice, saguvali chit, survey sketch and RTC and confirmed the judgment of the Trial Court.

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The counsel appearing for the appellants would vehemently contend that both the Courts have committed an error in decreeing the suit, particularly considering the document of Ex.P23 which is standing in the name of Smt.Rajamma, grand-mother of the plaintiff and not in the name of the plaintiff and merely on the basis of Exs.P14 to P16-electricity bills and Exs.P19 to P20-saguvali chit and survey sketch, granted the relief of permanent intention and failed to consider both oral and documentary evidence and the very

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reasoning amounts to perversity. Hence, this Court has to frame substantial question of law.

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Having heard learned counsel for the appellants and also on perusal of material available on record, the main contention of learned counsel appearing for the appellants is that there was sale agreement of the year 2010 and substantial payment is also made. But, the fact is that as on the date of filing of the suit in O.S.No.123/2014, no appeal was filed and only in the written statement, defence was taken that yet to file a suit for specific performance. But, claims that they are in possession, consequent upon the sale agreement which is registered. In order to substantiate the said claim that appellants/defendants are in possession of the property, nothing is placed on record. The counsel also not disputes the fact that no document is placed before the Court. Apart from that, although specific defence was taken by the defendants that they are in possession of the property and also examined D.W.1, but D.W.1 has not tendered himself for cross examination. When such being the case, in the absence of any documentary proof with regard to possession of the appellants,

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consequent upon the sale agreement and merely because suit was filed for the relief of specific performance and the same being granted, it will not prove the factum of possession. The Trial Court in detail discussed the same in paragraph Nos.14 and 15 and the First Appellate Court also on re-appreciation of both oral and documentary evidence in detail taken note of oral and documentary evidence available on record and confirmed the judgment of the Trial Court. When such being the case, when the document stands in the name of the plaintiff to establish the possession and it is settled law also that as on the date of filing the suit, plaintiff must establish possession and possession has been established and though defence was taken that defendants are in possession, the same is not substantiated by placing any cogent evidence before the Court. Hence, I do not find any error on the part of Trial Court and the First Appellate Court in considering the material available on record and I do not find any perversity in the finding of both the Courts and both question of fact and question of law is also is considered. Therefore, no grounds to admit the appeal and frame any substantial question of law invoking Section 100 of CPC.

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