Sri. T. H. Nagabhushana Vs Smt. Lakshmidevamma

THIS RSA IS FILED UNDER SECTION 100 OF CPC. AGAINST THE JUDGMENT AND DECREE DATED 21.02.2023. PASSED IN RA NO.295/2019 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 19.12.2015 PASSED IN OS NO.124/2001 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, TUMAKURU.TRIAL COURT DISMISSED THE SUIT, APPELLATE COURT DISMISSED THE APPEAL AND THE SUIT FOR PERMANENT INJUNCTION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL JUDGMENT

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Heard learned counsel for the appellant.

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This appeal is preferred by the

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appellant/plaintiff challenging the judgment and decree passed by the II Additional District and Sessions Judge, Tumakuru, in R.A.No.295/2019 dated 21.02.2023 dismissing the appeal and confirming the judgment and decree rendered by the trial Court in O.S.No.124/2001, dated 19.12.2015.

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NC: 2026:KHC:14972 RSA No. 897 of 2023

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Parties to the proceedings shall be referred to

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as plaintiff and defendants, for the sake of brevity.

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Plaintiff filed suit against the defendants for the relief of permanent injunction, contending that the plaintiff purchased the suit schedule property by way of registered sale deed dated 12.06.1997 for lawful consideration and he has been in physical possession and enjoyment of the suit schedule property as an absolute owner. The suit schedule property thereafter was converted for nonagricultural purposes, pursuant to which the plaintiff sold site No.2 measuring 40x70 feet in favour of one Savitha and delivered the possession of the same to her. Another site bearing No.3, measuring 40X70 feet, was sold to one P.Mamatha and possession was delivered. Pursuant to the sale of two sites, the plaintiff has been in enjoyment of the remaining portion as described in the schedule and he has put up a compound wall and a shed on the suit schedule

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property. It is pleaded that the defendant No.1 is an influential, powerful person with money power and muscle

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power, in collusion with the other defendants was making hectic efforts to interfere with the peaceful possession and enjoyment of the plaintiff over the suit schedule property and hence, he filed suit against the defendants for the relief of a permanent injunction.

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After summons being served, defendant Nos.2 and 3 appeared and filed their written statement. During the pendency of the suit, defendant No.1 is reported to be dead. Hence, the case against him abated. In the written statement, defendant Nos.2 and 3 denied the averments made in the plaint, contending that, defendant No.3 is the owner and in lawful possession and enjoyment of the

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property, having purchased the same by way of a registered sale deed dated 31.10.1996 for a valuable sale consideration from its lawful owner, and the khata thereafter was changed in the name of defendant No.3. Defendants in fact pleaded that the plaintiff was making hectic efforts to interfere with the lawful possession of the suit schedule property of the defendants. Hence, she filed

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a suit in O.S.No.167/2001, which is still pending

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consideration. Accordingly, sought to dismiss the suit.

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Based on the pleadings, the trial Court framed

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following issues for consideration.

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1. Whether the plaintiff proves that he is in lawful possession of the suit schedule property as on the date of suit?

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2. Whether the plaintiff further proves that the defendants are causing interference of his possession and enjoyment of the suit schedule property?

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3. Whether defendants No.2 and 3 prove that they are in lawful possession of the suit schedule properties as describe in para No.6 and 7 of their written statement?

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4. Whether the plaintiff is entitled for relief as prayed?

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5. What Order or Decree?

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In order to substantiate the case, the plaintiff

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examined himself as PW1 and marked Ex.P1 to Ex.P5 and examined one more witness as PW2, whereas defendant No.2 examined herself as DW1 and another witness as DW2 and got marked Ex.D1 to Ex.D44 in support of their

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NC: 2026:KHC:14972 RSA No. 897 of 2023

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case. Upon careful consideration of the materials placed on

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record, both oral and documentary, the trial Court did not find favour with the plaintiff and accepted the version of the defendants, including the evidence and documents and

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the possession considering the fact that the scope was very limited in a suit for permanent injunction, declined to go into the issue of title, and dismissed the suit of the plaintiff.

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Aggrieved by the same, the plaintiff preferred

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the first appeal in R.A.No.295/2019, and upon summons being served on the said appeal, defendant Nos.2 and 3 appeared before the Court and filed their written statement. On hearing the arguments of learned counsel for both parties and the impugned judgment and decree, the first appellate Court framed the following points for consideration.

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1. Whether the appellants have made out grounds for grant of permission to adduce evidence?

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2. Whether the impugned judgment and decree needs interference by this Court?

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3. What order?

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Along with the appeal memo, the plaintiff filed

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an application under Order XLI Rule 27 of CPC for the production of 18 documents. The first appellate Court considered the said applications as well and did not find favour with the plaintiff to accept those documents, as they were not relevant for deciding the matter at issue. Upon reconsideration and re-analyzing the entire materials placed on record, both oral and documentary, and on hearing the arguments of learned counsel for both parties along with the impugned judgment and decree, came to the conclusion that the trial Court has not committed any error or illegality in passing the said judgment. Accordingly, dismissed the appeal and confirmed the judgment rendered by the trial Court.

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The appellant is before this Court questioning

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and challenging the judgments of the trial Court as well as

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the first appellate Court on the ground that the judgments

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rendered by both Courts are illegal and contrary to material evidence on record, which has led to perversity and hence calls for interference by this Court. Learned counsel for the appellant has further contended that he has a valid title and the trial Court has failed to consider the possession and identification of the suit schedule property of the appellant. Despite the respondents/defendants admitting the boundaries and measurements in the survey number, the trial Court has dismissed the suit, which is illegal and arbitrary.

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Learned counsel for the appellant has taken

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several other contentions with regard to his ownership, title, sale made to other persons, and remaining property, possession, and enjoyment of the plaintiff. In my respectful submission, they may not be relevant to decide the present appeal, which arises out of the suit filed by the plaintiff for a bare injunction in which what is required to be seen is whether the plaintiff has made out a case that

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he is in possession and enjoyment of the suit schedule

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property and whether defendants are able to disprove the fact of possession of the plaintiff over the suit schedule property. These aspects have been elaborately dealt with

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by both the trial Court as well as the first appellate Court and have clearly held on the issues framed that the plaintiff is not able to prove and establish his possession over the suit schedule property rather it is held that the defendant Nos.2 and 3 are in lawful possession of the suit schedule property and the same is answered in the affirmative on the basis of the materials placed on record by both the parties. Therefore, I do not find any good ground or cogent reason to interfere with the concurrent finding of fact rendered by the trial Court as well as the first appellate Court with regard to the possession having been established by the defendants over the suit schedule property and the plaintiff having failed to prove the same in the manner known to law. No doubt it is open for the plaintiff to urge all other grounds, if so advised to seek for

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other relief, as what is decided is only with regard to the relief of permanent injunction and not title.

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Section 100 of CPC deals with the Scope and powers of the Appellate Court. It is a no more res integra to state that the powers as contemplated under Section 100 CPC are very narrow and limited. This Court, in several 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 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 large 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 interference when there is no cogent material placed on record.

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Under the circumstances, I do not find any

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good ground or cogent reason to consider the submission of learned counsel for the appellant for framing substantial questions of law as urged in the appeal memo. In my opinion the substantial questions of law do not arise for consideration in this appeal, and no questions of law are

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made out either. Accordingly, I pass the following order.

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ORDER

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The appeal is dismissed at the initial stage of admission itself.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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RCK

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List No.: 1 Sl No.: 37