Sri Manjeshi Vs Sri Hanumantha Naika T

THIS RSA FILED UNDER SECTION 100 ORDER XLII RULE 1 OF CPC-1908 AGAINST THE JUDGMENT AND DECREE DATED 03.11.2022 PASSED IN RA.No.58/2021 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 20.03.2021 PASSED IN OS No.249/2017 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, SHIVAMOGGA.

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

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL JUDGMENT

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This appeal is preferred by the defendants No.1 and 3 challenging the judgment and decree rendered by the Principal Civil Judge and JMFC, Shivamogga in O.S. No.249/2017, whereby the suit filed by the respondent No.1/plaintiff came to be decreed which, on challenge before the I Appellate Court in RA No.58/2021 before

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the Principal Senior Civil Judge and CJM, Shivamogga came to be affirmed by dismissing the appeal preferred by the appellants herein.

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Parties to the proceeding shall be referred to as per the status before the trial Court as ‘plaintiff’ and ‘defendants’.

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NC: 2026:KHC:14668 RSA No. 109 of 2023

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The Plaintiff filed a suit against the defendants for relief

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of permanent injunction contending that the plaintiff is the lawful owner, in peaceful possession and enjoyment of the suit schedule property, measuring to an extent of 20 feet x 65 feet situated at Nidige Grama Panchayat, Shivamogga taluk. Plaintiff acquired the suit schedule property by way of a registered sale deed dated 31.05.2011 from defendant No.2- Smt.Channabasamma, wife of Navilappa, who registered the sale deed in favour of the plaintiff No.1. It is also the case of the plaintiff that in pursuance to a sale deed, half of the suit schedule property is transferred and

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the plaintiff has been paying tax in respect of the said property. Defendant No.1 is none other than the brother of defendant No.2. Defendant No.3 is in possession and enjoyment of a property which is adjoining the suit schedule property on its southern side. It is the case of the plaintiff that defendants No.1 and 3 have no manner of title or interest over the suit schedule property as the plaintiff having purchased the same from defendant No.2, who is

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NC: 2026:KHC:14668 RSA No. 109 of 2023

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the absolute owner and after purchase, he is in possession and enjoyment of the said property. When the plaintiff planned to construct a house in the suit schedule property, he made an application to the Panchayat’s office, when defendants No.1 and 3 made unnecessary objection in putting up construction and started to interfere with the peaceful possession and enjoyment of the plaintiff over the suit schedule property. Hence, the plaintiff filed a suit.

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Upon summons being served, defendants No.1 and 3 represented by a counsel and filed written statement denying the averments made by the plaintiff. However, defendant No.2 did not contest the matter and was placed exparte .

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On the basis of the pleadings, the trial Court framed following issues for consideration:

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1. Whether the plaintiff proves that he is in actual possession and enjoyment of the suit schedule property as on the date of filing of this suit?

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2. Whether the plaintiff proves that the defendants are interfering in the suit schedule property?

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3. Whether the plaintiff is entitled for the relief as sought for?

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4. What Order or decree?

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In order to substantiate the issues and to prove the case,

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plaintiff examined himself as PW1 and got marked Exhibits P1 to P11, whereas defendant No.1 was examined as DW1 and got marked Exhibits P1 to P5 in support of their case. Based on the materials placed on record, both oral and documentary and upon hearing the arguments of the counsel for both parties, the trial Court agreed with the contentions put forth by the plaintiff. The trial court by relying upon the registered sale deed in the

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name of plaintiff and the khata having been mutated in favour of the plaintiff and other revenue records in favour of the plaintiff, came to a conclusion that the plaintiff is in a peaceful possession and enjoyment of the suit schedule property and accordingly decreed the suit of the plaintiff restraining the defendants, their supporters, agents,

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henchmen from permanently interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiff or in any way changing the nature of the suit schedule property.

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Aggrieved by the judgment and decree rendered by the trial Court, Defendants No.1 and 3 preferred an appeal before the First Appellate Court in RA No. 58 of 2021. In the first appeal also, the Defendant No.2 remained absent. The plaintiff appeared and contested the matter and on the basis of the materials placed before the trial Court, as well as before the First Appellate Court and the arguments of the learned counsels for both parties and on perusal of the impugned judgment and decree of the learned trial judge, the First Appellate Court, in order to re-appreciate and reconsider the entire materials on hand formulated the following points for consideration:

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Whether the trial court came to the right conclusion that the plaintiff is in possession and enjoyment over the suit suitable

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schedule property and the defendants caused interference?

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Whether the impugned judgment and decree in O.S.No.249/2017 dated 20.03.2021 passed by the trial court is erroneous and calls for interference by this Court?

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What Order?

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The learned First Appellate Court on reconsideration

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and re-appreciation of the entire materials that were placed before the trial Court and the arguments advanced by the learned counsel on both sides and also

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on going through the impugned judgment of the learned trial judge, did not find favour with the appellants/defendants No.1 and 3 and agreed with the judgment rendered by the trial Court, so also the contention of the plaintiff that he had a registered sale deed in his favour executed by defendant No.2 which was not questioned or challenged before any court of law. The very execution of the sale deed is not controverted or denied by defendant No.2, who is the vendor of the property to the plaintiff. Hence, the First

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Appellate Court came to a conclusion that nothing prevented defendant No.1 and 3 from producing the survey records or documents to prove and establish that the suit schedule property is part and parcel of the larger extent of land in Survey No. 172. The defendants No.1 and 3 did not produce any such document to establish their case as pleaded before the courts below. Therefore, having not found favour with the appellants/defendants No.1 and 3, the First Appellate Court dismissed the Regular Appeal and consequently, confirmed the judgment and decree rendered by the learned trial court. Aggrieved by the said Judgment, the appellants are before this Court.

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Learned counsel for the appellants contend that the trial Court and the First Appellate Court committed a serious illegality and perversity in passing the impugned order decreeing the suit of the plaintiff without taking into consideration the materials placed on record and having totally ignored that the plaintiff has not produced the

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correct boundaries with regard to the suit schedule property to identify and determine the ownership of the plaintiff over the suit schedule property has committed an error which requires to be set aside and reversed. It is also contended by the counsel for the appellant that while considering the suit for permanent injunction, the trial Court and the First Appellate Court ought to have looked into the fact whether the plaintiff is in lawful possession having a valid title and also the vendor had a valid title to transfer and execute a valid sale deed in favour of the plaintiff, which has not been gone into by

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the courts below. It is also contended by learned counsel for the appellants that when the total extent of the property in Survey No.172 clearly reflects as agricultural property, there was no scope for defendant No.2 to have executed a registered sale deed in favour of the plaintiff and the question is registered sale deed so claimed by the plaintiff is not authenticate.

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It is also claimed and contended by learned counsel for

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the appellants that when defendants No.1 and 3 have denied the ownership and title of the plaintiff and the possession as well, there was no scope for the plaintiff to file a suit for declaration and injunction in the absence of recovery of possession. This aspect has also not been considered by both the courts while rendering the impugned judgments. On these grounds, he submits that the impugned orders are not sustainable and require to be reversed. Therefore, substantial questions of law are required to be formulated for further consideration in this matter.

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Sri.Umesh Moolimani, learned counsel for Sri.S.V.Prakash, learned counsel for the Respondent No.1 contends that the present appeal is not maintainable in view of the fact that there is no illegality or perversity in the judgments rendered by the trial Court, as well as the First Appellate Court. He contends that the respondent No.1/plaintiff filed a

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simple suit for permanent injunction based on the registered sale deed and the revenue entries standing in his name. The ownership of the plaintiff by way of a registered sale deed dated 31.05.2011 is not disputed by defendant No.2, who is the vendor, as defendant No.2 did not even participate in the suit proceedings. There is no challenge being made to the said registered sale deed, so also the revenue entries entered in the name of plaintiff by defendants No.1 and 3. It is the case of the defendants No.1 and 3 that the suit schedule properties are part and parcel of the larger extent of land in Survey No.172, allotted to the share of the defendant No.1. There is no such recital to the extent that the suit schedule property is part of the larger extent of Survey No.172 in the sale deed executed in favour of the plaintiff. Therefore, it is for the defendants No.1 and 3 to have established their case, if they so plead in whatever manner, which has not been established before the trial Court or even

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before the First Appellate Court. The trial court and

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the First Appellate Court have come to a conclusion that the plaintiff is in possession of the suit schedule property and on the basis of the registered sale deed, mutation entries are made in favour of the plaintiff. Therefore, being convinced with the evidentiary material, both oral and documentary, the First Appellate Court did not find favour with the appellants/Defendants No.1 and.3 and dismissed the appeal by confirming the judgment and decree of the trial Court.

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Having perused the impugned judgments of both the

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courts and having heard learned counsel for the appellants and the respondent/plaintiff, I do not find any illegality or perversity in the judgment rendered by the trial Court as well as the first appellate Court. If the appellants No.1 and 3 contend that they are owners of the suitable property and that it is a part and parcel of the larger extent of Survey No. 172, then they ought to

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have said so or made a counter claim in their written statement and sought for the necessary relief in the suit filed by the plaintiff, which has not been done. Nothing had stopped the defendants from filing necessary suit to that effect and if they are owners of the property, they ought to have claimed the property in a manner known to law.

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In a suit for permanent injunction, what is required to

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be seen is, whether the plaintiff has made out substantial ground for grant of relief of permanent injunction to restrain the defendants from interfering with his peaceful possession and enjoyment of the suit schedule property. The trial Court and the First Appellate Court found favour with the plaintiff, which has not been demolished in the cross-examination or any contra material placed to disprove the case of the plaintiff. Therefore, I do not find any good ground made out by the appellants for even framing substantial questions of law, as none exists, whereas what is

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argued by the appellants is on the question of fact which cannot be re-agitated or decided by this Court sitting in the second appeal, invoking provisions of Section 100 of CPC.

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Section 100 of CPC deals with the Scope and powers of the Appellate Court. It is no more res integra to state that the powers as contemplated under Section 100 CPC are very narrow and limited. This Court in a catena of judgments has held that the Appellate Court sitting in the second appeal is not required to appreciate the evidence on record unless there is perversity shown in the

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judgments rendered by the trial Court as well as the first Appellate Court. When two Courts have already considered the question of fact and the question of law to a larger extent, in detail, even if this Court finds third opinion on the opinions already expressed concurrently by both Courts, it is a general Rule that this Court should refrain from imposing its third opinion merely for the sake of

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interference when there is no cogent material placed on record.

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The question of framing of substantial questions of law would depend upon if there is any illegality or perversity in the judgments rendered by the trial Court as well as the First Appellate Court. Having considered the submissions of learned counsels for the parties and having perused the impugned judgments of both the Courts and having gone through the records, I do not find any perversity or illegality in the judgments rendered by both the Courts. The appellants have not made out any good ground for this Court to frame any substantial question of law, as no such question of law, in my opinion, exists to be framed to decide the case on hand. The reasons assigned and conclusion arrived at by both the Courts are

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just and proper. I do not find any cogent reason to interfere with the well reasoned judgments rendered by

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both the Courts. Hence, I pass the following:

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