Karnataka High Court
Smt Mariamma vs S N Narendraprasad on 22 August, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF AUGUST, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
R.S.A.NO.1494/2010
C/W
R.S.A.NOS.1490/2010, 1491/2010, 1492/2010,
1493/2010, 1495/2010, 1496/2010, 1497/2010,
1971/2010, 1383/2010, 1384/2010, 1385/2010,
1386/2010, 1387/2010, 1388/2010, 1389/2010,
1390/2010, 1392/2010, 1405/2010, 1406/2010,
1407/2010, 1408/2010, 1409/2010, 1410/2010 AND
1411/2010
R.S.A.NO.1494/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore-567 000. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
Sri. S.N.Narendraprasad,
S/o S.V.Najundappa,
Aged about 44 years,
R/at B-3/65, K.G.Street,
Srirangapatna Town,
2
Mandya District-567 000. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.224/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree dated 17.04.2008 passed in O.S.320/2003 on
the file of the V-Addl. First Civil Judge, (JR.DN), Mysore.
R.S.A.NO.1490/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
Sri.K.N.Keshava Narayan,
S/o Narashimah,
Aged about 85 years,
R/at Door No.339,
Navelu Road,
Kuvempunagar,
Mysore-567 000.
Represented by GPA Holder
M.K.Seethalakshmi,
W/o Ramamurthy,
Aged about 54 years,
3
R/at door no.1268/1, 2nd main,
Siddartha Hostel Road,
Krishnamurthy Puram,
Mysore-05. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.219/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree dated 17.04.2008 passed in O.S.266/2003 by on
the V-Addl. First Civil Judge, (JR.DN), Mysore.
R.S.A.NO.1491/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore-567 000. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
S.V.Shivshankar,
S/o Late S.V.Venkataramaiah,
Aged about 44 years,
R/at D.No.20,
'Sri Nilaya', 2nd Cross,
2nd Stage,
Arvindanagar,
Opp. Ashokapuram
Railway Station,
4
Mysore-23. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.220/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree dated 17.04.2008 passed in O.S.273/2003 on
the file of the V-Addl. First Civil Judge, (JR.DN), Mysore.
R.S.A.NO.1492/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore-567 000. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
B.N.Jaykumar
S/o B.R.Narasimhamurthy,
Aged about 40 years,
R/at D.No.696,
N.S.Road, Devraja Mohalla,
Shivarampet,
Mysore-23. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
5
passed in R.A.221/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree dated 17.04.2008 passed in O.S.274/2003 on
the file of the V-Addl. First Civil Judge, (JR.DN), Mysore.
R.S.A.NO.1493/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore-567 000. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
S.N.Premalatha,
W/o C.Nagraj,
Aged about 49 years,
R/at D.No.33/65
Kuppanna Garadi Street,
Srirangapatna,
Mandya District-560 117. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.223/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree dated 17.04.2008 passed in O.S.319/2003 on
the file of the V-Addl. First Civil Judge, (JR.DN), Mysore.
6
R.S.A.NO.1495/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore-567 000. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
Shivalingaiah S,
S/o Siddegowda,
Aged about 40 years,
R/at D.No.104, LIG-2,
Bogadi 1st stage,
Shardadevi Nagar,
Mysore-23. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.238/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree dated 17.04.2008 passed in O.S.181/2003 on
the file of the V-Addl. First Civil Judge, (JR.DN), Mysore.
R.S.A.NO.1496/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
7
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore-567 000. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
Sathynarayana G.Rao,
S/o Ganesh Rao,
Aged about 40 years,
R/at K.G.Street,
Srirangapatna -567 001. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.258/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree dated 17.04.2008 passed in O.S.342/2003 on
the file of the V-Addl. First Civil Judge, (JR.DN), Mysore.
R.S.A.NO.1497/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
8
Mysore-567 000. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
Sri. Manjunath G.Rao,
S/o Ganesh Rao,
Aged about 55 years,
R/at K.G.Street,
Srirangapatna Town,
Mandya District-567 000. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.259/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree dated 17.04.2008 passed in O.S.341/2003 on
the file of the V-Addl. First Civil Judge, (JR.DN), Mysore.
R.S.A.NO.1971/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore-567 000. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
9
AND:
1. S.N.Premalatha,
W/o C.Nagraj,
Aged about 52 years
2. S.N.Narendraprasad,
S/o S.N.Nanjundappa,
Aged about 45 years
3. S.N.Rajendraprasad,
S/o S.N.Najundappa,
Aged about 43 years
4. S.N.Dhakshayini @ Geetha,
W/o Siddeshwara Prasad,
Aged about 38 years,
5. S.N.Bharathi,
W/o Basavaraju,
Aged about 36 years
Respondents 1 to 5 are
Residing at C/o S.P.Nanjundappa
Door No.B-3/65, K.G.Street,
Srirangapatna Town,
Mandya -560 118. ..Respondents
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.222/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree dated 17.04.2008 passed in O.S.318/2003 on
the file of the V-Addl. First Civil Judge, (JR.DN), Mysore.
R.S.A.NO.1383/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
10
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore-560 018. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
Sri.V.Madegowda,
S/o Venkataramegowda
Aged about 44 years,
Residing at LIG-642,
3rd stage,
Mysore-16. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.206/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree dated 17.04.2008 passed in O.S.180/2003 on
the file of the Court of V-Addl. First Civil Judge, (JR.DN),
Mysore.
R.S.A.NO.1384/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
11
2384, K.G.Koppal,
Mysore-567 000. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
Sri. K.B.Sridhar,
S/o Narayana,
Aged about 54 years,
R/at No.181,
1st Main, 1st Cross,
Jayanagar,
Mysore-16. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.203/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree passed by the V-Addl. First Civil Judge, (JR.DN),
Mysore in O.S.79/2003 dated 17.04.2008. Trial Court
dismissed the suit. Appellant court allowed the appeal. Suit
for permanent injunction.
R.S.A.NO.1385/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore-567 000. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
12
M/s G.S.V. Associates, Advocates)
AND:
Sri U.A.Manohar,
S/o late U.Anand,
Aged about 50 years,
R/at No.1525, C&D Block,
Kuvempnagar,
Mysore-23
Represented by GPA Holder
Sri.K.B.Sridhar,
S/o Narayana,
Aged about 54 years
Residing at No.181,
1st Main, 1st Cross,
Jayanagar,
Mysore-14. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.204/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree passed by the V-Addl. First Civil Judge, (JR.DN),
Mysore in O.S.80/2003 dated 17.04.2008. Trial Court
dismissed the suit. Appellant court allowed the appeal. Suit
for permanent injunction.
R.S.A.NO.1386/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
13
Both are residing at Door No
2384, K.G.Koppal,
Mysore. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
Sri. Subbaiah M.C
S/o M.M.Chegappa,
Aged about 46 years,
R/at No.1154,
2nd Cross, T.K.Layout,
Mysore-09. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.205/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree passed by the V-Addl. First Civil Judge, (JR.DN),
Mysore in O.S.170/2003 dated 17.04.2008. Trial Court
dismissed the suit. Appellant court allowed the appeal. Suit
for permanent injunction.
R.S.A.NO.1387/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
14
M/s G.S.V. Associates, Advocates)
AND:
Smt. Bhagyamma,
W/o P.K.Nagaraju,
Aged about 48 years,
R/o M.Seetihalli Grama,
Srirangapatna Taluk,
Mandya District-571 401. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.207/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree passed by the V-Addl. First Civil Judge, (JR.DN),
Mysore in O.S.182/2003 dated 17.04.2008. Trial Court
dismissed the suit. Appellant court allowed the appeal. Suit
for permanent injunction.
R.S.A.NO.1388/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
15
AND:
Smt. M.S.Susheelamma,
W/o M.S.Sripathi,
Aged about 64 years,
C/o Yashodamma,
R/at door no.1340, 4th Cross,
Krishnamurthy Puram,
Mysore-05. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.208/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree passed by the V-Addl. First Civil Judge, (JR.DN),
Mysore in O.S.187/2003 dated 17.04.2008. Trial Court
dismissed the suit. Appellant court allowed the appeal. Suit
for permanent injunction.
R.S.A.NO.1389/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore-567 000. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
Smt. M.S.Susheelamma,
W/o M.S.Sripathi,
16
Aged about 64 years,
C/o Yashodamma,
R/at door no.1340, 4th Cross,
Krishnamurthy Puram,
Mysore-05. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.209/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree passed by the V-Addl. First Civil Judge, (JR.DN),
Mysore in O.S.188/2003 dated 17.04.2008. Trial Court
dismissed the suit. Appellant court allowed the appeal. Suit
for relief of permanent injunction.
R.S.A.NO.1390/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
H.Natesh,
S/o Late H.Hanume Gowda,
Aged about 39 years,
R/at Habbanakuppe,
Chilkunda Post,
Husuar Taluk,
17
Represented by his GPA Holder
K.Nage Gowda,
Aged about 50 years,
R/at L.157, C.I.T.B,
2nd stage, Kuvempunagar,
Mysore-23. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.210/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree passed by the V-Addl. First Civil Judge, (JR.DN),
Mysore in O.S.192/2003 dated 17.04.2008. Trial Court
dismissed the suit. Appellant court allowed the appeal. Suit
for relief of permanent injunction.
R.S.A.NO.1392/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore-567 000. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
Smt. S.Shamalambha,
W/o M.S.Nagaraja Rao,
Aged about 65 years,
R/at Door No.867,
Chitra 'A' Block,
18
Dattagalli 3rd Stage,
Mysore-23. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.211/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree dated 17.04.2008 passed in O.S.214/2003 on
the file of the V-Addl. First Civil Judge, (JR.DN), Mysore.
Trial Court dismissed the suit. Appellant court allowed the
appeal. Suit for permanent injunction.
R.S.A.NO.1405/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
Sri.B.C.Ramesh,
S/o Chennaveerappa,
Aged about 60 years,
Venkateshwara Sweet Stall
Opposite to new Shanthisagar
Ganganagar,
Bangalore-560 023. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
19
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.212/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree passed by the V-Addl. First Civil Judge, (JR.DN),
Mysore in O.S.215/2003 dated 17.04.2008. Trial Court
dismissed the suit. Appellant court allowed the appeal. Suit
for permanent injunction.
R.S.A.NO.1406/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
R.N.Kaushal,
S/o M.Rama Murthy,
II Main, Siddaratha Hostel Road,
Krishnamurthy Puram Mysore-05
Represented by GPA Holder
M.K.Seethalakshmi,
W/o Ramamurthy,
Aged about 54 years,
R/at door no.1268/1, 2nd main,
Siddartha Hostel Road,
K.R.Puram, Mysore-05. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
20
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.213/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree passed by the V-Addl. First Civil Judge, (JR.DN),
Mysore in O.S.260/2003 dated 17.04.2008. Trial Court
dismissed the suit. Appellant court allowed the appeal. Suit
for permanent injunction.
R.S.A.NO.1407/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
M.N.Manjula,
D/o Keshava Narayana K.N,
Aged about 35 years,
Nrupathunga Road,
Mysore-Bangalore Road,
Bangalore.
Represented by GPA Holder
M.K.Seethalakshmi,
W/o Ramamurthy,
Aged about 54 years,
R/at door no.1268/1, 2nd main,
Siddartha Hostel Road,
21
K.R.Puram,
Mysore-05. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.214/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree passed by the V-Addl. First Civil Judge, (JR.DN),
Mysore in O.S.261/2003 dated 17.04.2008. Trial Court
dismissed the suit. Appellant court allowed the appeal. Suit
for permanent injunction.
R.S.A.NO.1408/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
Miss Rajalakshmi,
D/o Keshava Narayan K.N,
Aged about 40 years,
R/at 17/1, 17th Main,
Vijaynagar, Bangalore.
Represented by GPA Holder
M.K.Seethalakshmi,
W/o Ramamurthy,
22
Aged about 54 years,
R/at door no.1268/1, 2nd main,
Siddartha Hostel Road,
Krishnamurthy Puram,
Mysore-05. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.215/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree passed by the V-Addl. First Civil Judge, (JR.DN),
Mysore in O.S.262/2003 dated 17.04.2008. Trial Court
dismissed the suit. Appellant court allowed the appeal. Suit
for permanent injunction.
R.S.A.NO.1409/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
M.K.Seethalakshmi,
W/o Ramamurthy,
Aged about 54 years,
R/at door no.1268/1, 2nd main,
Siddartha Hostel Road,
K.R.Puram,
23
Mysore-05. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.216/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree passed by the V-Addl. First Civil Judge, (JR.DN),
Mysore in O.S.263/2003 dated 17.04.2008. Trial Court
dismissed the suit. Appellant court allowed the appeal. Suit
for permanent injunction.
R.S.A.NO.1410/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
Smt. Tara,
W/o M.Ramesh,
Aged about 36 years,
R/at Door no.7/5, 3rd main,
Vijayanagar, Bangalore
Represented by GPA Holder
M.K.Seethalakshmi,
W/o Ramamurthy,
Aged about 54 years,
R/at door no.1268/1, 2nd main,
24
Siddartha Hostel Road,
K.R.Puram,
Mysore-05. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.217/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree passed by the V-Addl. First Civil Judge, (JR.DN),
Mysore in O.S.264/2003 dated 17.04.2008. Trial Court
dismissed the suit. Appellant court allowed the appeal. Suit
for permanent injunction.
R.S.A.NO.1411/2010
BETWEEN:
1. Smt. Mariamma
W/o late Siddayya
Aged about 65 years
2. Sri. Manjunath,
S/o late Siddayya,
Aged about 47 years
Both are residing at Door No
2384, K.G.Koppal,
Mysore. ....Appellants
(By Sri. Sreevatsa, Sr. Counsel a/w V.K.Naik, Advocate for
M/s G.S.V. Associates, Advocates)
AND:
M.K.Nalini,
D/o K.N.Keshava Narayana,
Aged about 45 years,
R/at Door no.7/5, 1st main,
Vijayanagar, Bangalore
Represented by GPA Holder
M.K.Seethalakshmi,
W/o Ramamurthy,
25
Aged about 54 years,
R/at door no.1268/1, 2nd main,
Siddartha Hostel Road,
K.R.Puram,
Mysore-05. ..Respondent
(By Sri.T.Mohandas Shetty, Advocate)
These Appeals are filed Under Section 100 of C.P.C.
praying against the judgment & decree dated 21.04.2010
passed in R.A.218/2008 on the file of the I-Addl. Senior Civil
Judge, Mysore, allowing the appeal setting aside judgment
and decree passed by the V-Addl. First Civil Judge, (JR.DN),
Mysore in O.S.265/2003 dated 17.04.2008. Trial Court
dismissed the suit. Appellant court allowed the appeal. Suit
for permanent injunction.
These Appeals being heard and reserved, coming on
for pronouncement of Judgment this day, the Court
delivered the following:
JUDGMENT
Defendants - 1 and 2 have filed these appeals questioning the judgment and decrees passed by the I Addl.Sr.Civil Judge, Mysore in R.A.Nos.206, 203 to 205, 207 to 224, 238, 258 and 259 of 2008 on 21.04.2010 whereunder appeals filed by unsuccessful plaintiffs questioning the judgment and decree passed in O.S.No.79, 80, 170, 180, 181, 182, 187, 188, 192, 214, 215, 260 to 266, 273, 274, 318 to 320, 341 and 342 of 2003 by the V Addl. I Civil Judge (Jr.Dn), Mysore dated 17.04.2008 dismissing the 26 suits came to be allowed and a decree of permanent injunction restraining the defendants from interfering with plaintiff's possession over the suit properties in any manner came to be passed.
2. I have heard the arguments of Sri Srivatsa, learned Sr.counsel appearing on behalf of Sri V K Naik, for appellants/defendants-1 and 2 and Sri G Krishnamurthy, learned Advocate appearing on behalf of Sri T.Mohandas Shetty for respondents/plaintiffs.
3. Having heard the learned Advocates appearing for the parties, this Court is of the considered view that the following substantial questions of law would arise for consideration:
(1) Whether the lower appellate Court was correct in reversing the judgment and decree passed by the trial Court without reversing the findings of fact recorded by the trial Court?
(2) Whether the findings recorded by the first appellate Court to reverse the finding of the trial Court is based on proper 27 appreciation of the evidence or contrary to material evidence on record?
Parties are referred to as per their rank in the trial Court namely, appellants as defendants and respondents as plaintiffs.
PLEADINGS OF THE PARTIES:
4. Plaintiffs filed suits for the relief of permanent injunction to restrain the defendants from interfering with their peaceful possession and enjoyment of the suit schedule property. The sum and substance of the contentions raised by all the plaintiffs in their respective suits are as under:
First defendant was the owner of Sy.No.167/1 of Bogadi village, Mysore Taluk measuring 3 acres 20 guntas and she had derived title to the same under a settlement deed and she formed a private residential layout and sites of various dimensions were carved out and she executed unregistered sale deeds in their favour after receiving valuable consideration from them; Since there was prohibition for registering the sale deeds, it was not registered; Plaintiffs are in peaceful possession and 28 enjoyment of the respective sites from the date of execution of said documents; Plaintiffs had made applications with Mysore Urban Development Authority (hereinafter referred to as 'MUDA') for regularization of sites and building by collecting necessary penalty; after the suit schedule sites came within the jurisdiction of Mysore City Corporation, plaintiffs also claim to have filed application for grant of holder khata and pursuant to the said applications, Engineering Section had inspected the spot and paid betterment fees and also taxes; the officials of the Mysore City Corporation had visited the spot, identified the sites and properties and new numbers were assigned; First defendant's son namely, second defendant started demanding illegal sums from plaintiffs on account of increase in the market value of the property and on account of interference with plaintiffs peaceful possession and enjoyment of suit schedule property by the defendants along with their henchmen, suits in question came to be filed.
5. On service of suit summons defendants appeared and 2nd defendant filed the written statement by contending that property bearing Sy.No.167/1 situated in 29 Bogadi village, Kasaba Hobli, Mysore Taluk measures 4 acres 32 guntas is the ancestral property of defendants and they were in peaceful possession and enjoyment of the same as absolute owners thereof; Out of the total extent 2 acres 8 guntas came to be acquired by City Improvement Trust Board (hereinafter referred to as 'CITB'), Mysore and defendants are in possession of remaining area and they have raised crops; It was further contended that said property being an agricultural land it cannot be alienated without prior permission from the competent authority; 2nd Defendant denied execution of any unregistered sale deed for valuable consideration in favour of the plaintiffs or plaintiffs being in possession of such sites; Defendants claimed that they are in possession and enjoyment of 2 acres 20 guntas as absolute owners thereof and revenue records stands in their name and they have raised crops; Neither MUDA nor Mysore City Corporation have acquired the said land and as such, issuance of notice and fixation of penalty by MUDA and issuance of holder Khata by Mysore City Corporation in favour of plaintiff does not arise; Corporation have no right to issue such Khata in respect of agricultural land; No houses are constructed and on account of attempts made by 30 some of the plaintiffs to put up the construction in the said land it was resisted by the defendants; Plaintiffs were not in possession of the suit schedule properties at any point of time and defendants are paying taxes regularly and patta book and RTC stands in the name of first defendant; Mahazar drawn by revenue authorities on 24.01.1998 would establish that land bearing Sy.No.167/1 is an agricultural land and it is in possession of the defendants; The land could not have been alienated by the first defendant since second defendant was born on 30.04.1961 and at the time of alleged execution of unregistered sale deeds in favour of plaintiffs, 10th defendant was a major; First defendant had no right to alienate the ancestral property and the documents produced by the plaintiff are forged, created and not binding on the defendants; Defendants had approached Mysore City Corporation for cancellation of the holder Khata issued in favour of plaintiffs and Officials of the Corporation have informed the defendants that holder Khata would not prevail in respect of agricultural property; First defendant had filed a suit for injunction against trespassers in O.S.No.38/2003 who had attempted to trespass on the western side of Sy.No.167/1 by creating forged documents 31 and in the said suit an order of temporary injunction was granted and as such, present suit is hit by resjudicata; The very existence of the suit schedule sites was denied on the ground that it is an agricultural land and suit schedule property is not traceable; Other averments made in the plaint also came to be denied. First defendant adopted the written statement filed by 2nd defendant by filing a memo to said effect.
6. On account of plaintiffs carrying out amendment to the schedule of the plaints, second defendant filed additional written statement contending that plaintiff has given a non-existent boundary and to overcome the admission given in the cross examination; The sketch produced by the plaintiff came to be denied as an afterthought and to overcome the admission made in the cross examination; It was contended that neither of the defendants have sold any portion of land in favour of plaintiffs and the entire land continued to be agricultural land; The fact that MUDA or MCC having acquired portion of the land also came to be denied. It was contended that 32 plaintiffs are not in possession of the sites. On these grounds defendants sought for dismissal of the suit.
7. On the basis of above pleadings, trial Court framed common issues in all the suits which are as follows:
1. F zÁªÁ ºÀÆqÀĪÀ ¸ÀAzÀ¨sÀðzÀ°è vÁ£ÀÄ zÁªÁ D¹ÛAiÀÄ ±Á¸À£À§zÀÝ ±ÁAwAiÀÄÄvÀ ¸Áé¢Ãü £Á£ÀĨsÀªÀzÀ°è EzÀݣɣÀÄߪÀÅzÀÄ ªÁ¢ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉÃ?
2. ¥ÀæwªÁ¢AiÀÄÄ zÁªÁ D¹ÛAiÀÄ°è vÀ£Àß ±ÁAwAiÀÄÄvÀ ¸Áé¢Ãü £Á£ÀĨsÀªÀPÉÌ PÁ£ÀÆ£ÀĨÁ»gÀªÁV CrØ, CqÀZÀuÉ ºÁUÀÆ DvÀAPÀªÀ£ÀÄßAlÄ ªÀiÁqÀÄvÁÛ EzÁݣɣÀÄߪÀÅzÀ£ÀÄß ªÁ¢ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉÃ?
3. ªÁ¢AiÀÄÄ F zÁªÉAiÀÄ°è PÉÆÃjgÀĪÀAvÉ ±Á±ÀévÀ ¤§ðAzsÀPÁeÉAÕ iÀÄ£ÀÄß ¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ?
4. ºÁVzÀÝ°è AiÀiÁªÀ DzÉñÀ CxÀªÁ rQæ?
8. All the plaintiffs got themselves examined as P.W.1 to P.W.35 in their respective suits. Ex.P-1 to P-152 were got marked on behalf of the plaintiffs. Second defendant got himself examined as D.W.1 and one witness was examined on behalf of the defendants as D.W.2. In all, 40 documents were produced on their behalf and they were 33 marked as Ex.D-1 to D-40. After considering the pleadings of the parties and on evaluation of evidence both oral and documentary, trial Court dismissed the suits by common judgment and decree dated 17.04.2008.
FINDINGS RECORDED BY THE TRIAL COURT:
9. Trial Court has recorded a finding that plaintiffs have admitted that there is no document to evidence the fact that construction has been put up by them on the suit schedule properties; Suits have been filed in respect of old numbers though plaintiffs have contended that corporation authorities had prepared the sketch and plan allotting new numbers during 1998 and as such nothing prevented them from disclosing the new number when the suits were filed in the year 2003; even if construction existed on the suit schedule property as per the version of the plaintiffs nothing prevented them from disclosing the said aspect in the schedule to the plaints, but on the other hand plaintiffs contend suit schedule sites are vacant sites; some of the defendants have deposed that they have filed suits for recovery of possession which would indicate that plaintiffs are not in possession of the suit schedule properties; 34
defendant has produced Exhibit D-13 endorsement issued by Mysore City Corporation wherein it is stated that corporation have not issued holder khatha to any persons in respect of 2 acres 20 guntas of land in Sy.No.167/1; evidence placed on record are contrary to pleadings of the plaintiffs and as such it creates doubt in respect of identity of the suit schedule property; 2nd Defendant had acquired title to Sy.No.167/1 to an extent of 2 acres 20 guntas under
Settlement Deed Exhibit D-19; revenue records are in the name of both the defendants; plaintiffs have failed to prove the existence of suit schedule sites with the help of the documents produced by them; defendants have no where admitted that they have sold suit schedule properties to plaintiffs; sale deeds produced by plaintiffs would not establish that it relates to suit schedule properties; plaintiffs have failed to discharge their burden in establishing the nexus to the schedule shown in the sale deeds with that of the schedule described in the plaint; corporation officials are not examined to establish that new numbers and boundaries were assigned as disclosed in the plaint schedule; there is a serious dispute with regard to identity of the property; plaintiffs have utterly failed to prove their possession over 35 the suit schedule property and as such the alleged interference by the defendants cannot be believed. On these grounds as discussed by the trial court in its judgment, suits filed by the plaintiffs came to be dismissed.
10. Being aggrieved by these judgment and decrees passed by trial court on 17.04.2008 plaintiffs preferred appeals R.A.206, 203 to 205, 207 to 224, 238, 258 and 259/2008 before the I Additional Senior Civil Judge, Mysore.
The Lower appellate court after hearing the arguments advanced by respective learned advocates appearing for the parties formulated following points for its adjudication:
1. Whether the findings of the trial Court that even though the sale deeds produced by the plaintiffs speak regarding delivery of possession, they cannot be looked into for want of examination of attestors thereto is sustainable?
2. Whether the impugned Judgment calls for interference?
3. what order?
The lower appellate court on re-appreciation of evidence both oral and documentary held:
36
FINDINGS RECORDED BY THE LOWER APPELLATE COURT:
11. Gift Deed came to be executed by the first defendant in favour of second defendant conveying the suit schedule property in his favour subsequent to filing of the suits and as such much importance cannot be given to the entries found in the RTCs - Exhibits D-2 -D-7 wherein the name of second defendant has been entered; admission of DW-1 amply demonstrate that said land in Sy.No.167/1 is not under cultivation; no suggestion has been made to PW- 33 who is an official from Mysore City Corporation that Sy.No.167/1 do not comprise of Basaveshwara Nagara Extension in respect of which he had conducted inspection, had measured the sites and also the buildings in existence and prepared a sketch and also there is no serious cross examination of this witness; PW-34 admits that 65 applications were received for grant of holders khatha in respect of Sy.No.167/1; Exhibit D-13 does not indicate holders khatha issued to plaintiffs have been cancelled;
second defendant has not examined the author of Exhibit D-
13. DW-1 has admitted 2 acres 20 guntas in Sy.No.167/1 was given to first defendant by way of settlement deed and 37 she was the absolute owner thereof; Exhibit D-12 application submitted by DW-1 seeking cancellation of holders khatha issued in favour of the plaintiffs was submitted to Mysore City Corporation during the pendency of the suits; evidence of DW-1 would indicate that PW-33 and PW-34 had infact inspected the spot for the purposes of issuing holders khatha; DW-1 pleads his ignorance about his mother having executed sale deed in favour of the plaintiffs; at the time of defendants filing the suit O.S.30/2003 in respect of Sy.No.167/1, plaintiffs had already lodged complaints before the jurisdictional police alleging interference by the defendants, yet defendants choose not to array the plaintiffs as parties to the suit O.S.30/2003 and as such the Judgment and decree passed thereon as per Exhibit D-14 would not bind the plaintiffs since plaintiffs are not parties to said suit; after inspecting the land in Sy.No.167/1 the officials of corporation prepared the sketch and as such description given in the plaint schedule by the plaintiffs cannot be brushed aside; out of 4 acres 28 guntas in Sy.No.167/1 2 acres 08 guntas belonging to DW-1's uncle Sri.Shivalingaiah had been acquired by Mysore Development Authority and remaining land could not be acquired owing to 38 existence of revenue sites even according to the admission of DW-1 in his cross examination; proposal to acquire the land by MUDA was dropped owing to existence of houses in the revenue sites formed therein; defendants have failed to demonstrate that testimony of PW-1 to PW-35 warranted discarding the same; first defendant namely mother of second defendant has not entered the witness box and second defendant has not chosen to assail the sale transactions entered into by the first defendant and as such there was no occasion for the plaintiff to prove execution of the sale deed as per section 59 of the Registration Act; till date second defendant has not challenged the deeds executed by first defendant and no steps have been taken by the second defendant; evidence on record would indicate plaintiffs are in possession of suit properties and in view of evidence of PW-33 who is an official of corporation, it cannot be said that suit properties are not identifiable; sale deeds produced by the plaintiffs being unregistered can be considered for collateral purposes; DW-2's admission that he has not gone near the lands for three years before the date of his examination would indicate that his evidence of having cultivated the land in question cannot be accepted; 39 plaintiffs are in settled possession and even a true owner cannot dispossess them from the suit schedule property; merely on the ground that first defendant had no absolute right to alienate the property, second defendant cannot interfere with the possession of the plaintiffs but have to take recourse under due process of law; unregistered sale deeds were ordered to be impounded and sent to the Deputy Commissioner of Mysore for collecting necessary duty and penalty. On these grounds the appellate court allowed the appeals, set aside the decrees passed by trial court and restrained the defendants by way of permanent injunction from interfering with the plaintiff's possession and enjoyment of suit properties in any manner. CONTENTIONS RAISED BY LEARNED COUNSEL FOR APPELLANTS (DEFENDANTS):
12. It is the contention of learned senior counsel Sri.Sreevatsa appearing on behalf of defendants that lower appellate court ought to have examined as to whether the finding recorded by the trial court regarding identity of the suit schedule property is established or not and not formulating a point for determination has resulted in 40 erroneously reversing the finding recorded by the trial court.
He would contend that the very identity of the suit schedule property is not established, and when it is doubtful and also the schedule mentioned in the unregistered sale deeds produced by the plaintiffs before the trial court does not match or tally with the plaint schedule and when the evidence tendered by the plaintiffs in this regard is inconsistent suits could not have been decreed. He would submit that undisputedly plaintiffs are claiming right, title and interest over the suit schedule properties on the basis of unregistered sale deeds and when the description of the property as described in these unregistered sale deeds when compared with the plaint schedule is not tallying the lower appellate court could not have passed an order of perpetual injunction against the defendants. He would elaborate his submission and contend as under:
(i) that first appellate court could not have allowed the appeal without first reversing the findings of fact recorded by the trial court;
(ii) the sale deed being a compulsorily registrable document those sale deeds could not have been examined by the trial court and as such it could not 41 have been used against the defendant when the said documents were not proved;
(iii) recitals in an unregistered sale deeds cannot be looked into for even collateral purposes.
(iv) Holder khatha issued by Municipal corporation would not confer any title in favour of the plaintiffs;
On these grounds he prays for answering the substantial questions of law formulated herein above in favour of the appellants and for setting aside the judgment and decree passed by the lower appellate court and affirming the Judgment and decree passed by the trial court by allowing the appeals. In support of his submissions he has relied upon the following judgments.
1. 2008(3) KCCR 1769
2. AIR 1977 SC 747
3. 2008(4) SCC 182
4. ILR 1991 Kar 1696
5. AIR 2000 SC 426
6. AIR 2006 SC 2234
7. ILR 2012 Kar 725
8. (2008) 8 SCC 564 42
9. (2005) 3 SCC 702 CONTENTIONS RAISED BY LEARNED COUNSEL FOR RESPONDENTS (PLAINTIFFS):
13. Per contra, Sri.G.Krishnamurthy, learned counsel appearing on behalf of Sri T Mohandas Shetty, Advocate for plaintiffs would support the judgment and decrees passed by the lower appellate court and contends that first appellate court is empowered to reappreciate the evidence and on reappreciation of such evidence it was fully justified in reversing the finding recorded by the trial court.
He would submit that in a suit for injunction plaintiffs are required to prove their possession and threat of interference and in the instant case it is the first defendant who has executed the sale deeds in favour of the plaintiffs whereunder she has conveyed the plaintiff schedule properties in favour of the plaintiffs and she has neither filed the written statement nor entered the witness box and 2nd defendant was attempting to interfere with plaintiff's possession on the ground 1st defendant had executed a Gift deed and as such plaintiff's are entitled for protection. He would contend that second defendant who is the son of first 43 defendant as on the date of execution of the sale deeds in favour of the plaintiffs was a major and he was aged about 26 years since he was examined as DW-1 on 17.11.2007 wherein his age as on the said date has been shown as 47 years and it is admitted at the bar that date of birth of DW-1 being 30.04.1961 he was aged about 26 years as on 25.03.1981 namely the date of sale deed Exhibit P-63 and he had not objected to the said sale deed being executed by his mother but on the other hand has admitted his mother is the absolute owner of the suit schedule property and as such he cannot interfere with plaintiff's possession over suit schedule properties. He would further submit that on account of first defendant not entering the witness box and DW-1, son of first defendant having not denied that signature found in the sale deeds marked as Exhibits P-63, P-124, P-125, P-86, P-77, P-79, P-118, P-107, P-112, P-12, P-53, P-31, P-91, P-28, P-136, P-71, P-66, P-48, P-41, P-23, P-16, P-1, P-2, P-3, P-126 and P-85 are not that of first defendant and having not denied execution of the said document by his mother, contention now raised by 2nd defendant was not rightly accepted by the lower appellate court and as such finding of the trial court rightly came to be 44 reversed. He would further elaborate his submissions by contending that as on the date of the suit second defendant did not have any subsisting right in the suit schedule property since he claims to have acquired title under a gift deed dated 30.08.2004 which came to be marked as D-7 which is subsequent to filing of the suit (25.03.2003) and hence there is no error in the findings recorded by the lower appellate court. He would also submit that plaintiffs were put into possession of the suit property under the sale deeds and when part performance can be severable from the original document namely sale deeds, said document can be looked into by courts for collateral purpose and this exercise having been undertaken by the lower appellate court no fault can be found in the said order. He would also draw the attention of the court to the cross examination of DW-1 dated 03.01.2008 wherein DW-1 admits that his mother first defendant acquired title to Sy.No.167/1 under settlement deed and she is the absolute owner. He would also draw the attention of the court to admission of DW-1 that gift deed dated 30.08.2004 came to be executed by his mother during the pendency of the suits. He would particularly draw the 45 attention of the court to the following admissions of DW-1 in his cross examination dated 03.01.2008;
(i) On account of existing structures in Sy.No.167/1 i.e., 2 acres 8 guntas it was not acquired by MUDA;
(ii) DW-1 having received money from Smt.Sitalakshmi in respect of suit schedule property and having executed agreement of sale in favour of Sri.M.C.Mahesh;
(iii) Exhibit D-4 namely RTC would indicate that 35 guntas in Sy.No.167/1 having been sold in favour of Mr.M.C.Mahesh.
(iv) In respect of 37 guntas an agreement of sale came to be executed by DW-1 which was the subject matter of suit in O.S.607/2008 and suit having been decreed in favour of the plaintiffs therein and there being no appeal filed against the judgment and decree dated 23.05.2011 defendants do not have any subsisting interest in the suit schedule property
14. He would also submit that sale deeds will have to be examined in the background of section 53A of Transfer of Property Act and in part performance of the contract if possession is delivered said transaction can be looked into 46 independently for collateral purposes namely to find out possession and it does not require registration. On these grounds he seeks for dismissal of the appeals and prays for answering the substantial questions of law in the negative i.e., in favour of the plaintiffs and against defendants. In support of his submission he has relied upon the following judgments.
1. AIR 1972 SC 2299
2. 1971 (2) Mysore LJ 161
3. (2003) 4 SCC 161 BRIEF BACKGROUND OF THE CASE:
15. Plaintiffs in all these appeals contended before the trial court that;
First defendant is the owner of Sy.No.167/1 of Bogadi Village, Mysore Taluk, measuring about 3 acres 20 guntas and she acquired title to the said property under a settlement deed; she formed a private layout consisting of many sites of various dimensions; after forming such sites she sold the same in favour of the plaintiffs under a document styled as "Sale Deed" by putting the plaintiffs in possession of the properties described under the said sale 47 deeds and she has received valuable consideration; on account of there being prohibition to register the sale deeds they were not registered but in part performance of the contract, plaintiffs were put in possession of their respective sites in the year 1981 and from the said date they are in possession and enjoyment of the same; applications came to be submitted by plaintiffs to the Mysore Urban Development Authority seeking for regularisation of the sites and building situated in the suit schedule sites and the said authority directed the plaintiffs to pay amounts by way of penalty and part of the said amount demanded has been paid; plaintiffs also gave application to Mysore City Corporation for issuance of holder khatha and it was issued to them. On account of second defendant's demand for payment of amounts having been refused by the plaintiffs resulted in second defendant claiming right over the property and he instigated the first defendant to disown the sale deeds executed by them. On these grounds plaintiffs sought for permanent injunction. Second defendant filed his written statement denying the averments made in the plaint on 10.04.2003. His mother who was first defendant adopted the written statement by filing a memo to the said effect.
48
16. This court has already recorded the findings of the trial court as well as the lower appellate court. In the background of the findings so recorded the substantial questions of law formulated herein above requires to be adjudicated and answered.
RE: SUBSTANTIAL QUESTION OF LAW NOs.1 & 2:
17. Appellate Court would interfere with the findings recorded by the trial court if it is established that the discretion is not properly exercised by trial court or there is erroneous exercise of discretion or non consideration of material evidence available on record or improper consideration of material evidence available on record. The reversal of a finding recorded by the trial court by an appellate court cannot be on the ground that the lower court ought to have exercised the discretion in the manner the lower appellate court visualises the facts of a case or on the ground that appellate court itself would have exercised the discretionary jurisdiction in a different manner. Unless the appellate court is satisfied that the discretion exercised by the trial court is wrong or erroneous it would not be proper 49 for it to hold that if it had the jurisdiction it would have judged the facts available before it from a different angle.
18. When the trial court comes to a conclusion after elaborate discussion of evidence on record, the appellate court will not be justified in reversing the decree even without setting aside the findings. The appellate court is required to make a proper reappraisal of the pleadings and evidence in a case before coming to a independent conclusion. However, while arriving at such conclusion it has to either affirm the findings of the trial court or interfere with the same by reversing it. In case of appellate court reversing the finding of the trial court it has to assign the reasons thereof since the first appellate court being the final court of fact and law it is expected to evaluate the entire material available on record and there should be proper examination of relevant materials. Merely because the appellate court intends to substitute its own views for that of the conclusion arrived at by the trial court would not be a ground to reverse the finding of the trial court. The first appellate court has a onerous duty to critically examine the evidence by reappraisal. It must record reasons for 50 disagreeing with the findings recorded by the trial court and if there is non appreciation of material evidence available on record or erroneous appreciation of material evidence available on record it would rise for the appellate court to interfere with the findings of the trial court to reverse the findings of the trial court as otherwise it would be slow in interfering with the finding of fact recorded by the trial court. Where the appellate court finds that the order passed by the trial court is correct and justifiable both factually and legally it would justify non interference. But on the other hand if the appellate court finds it is not justifiable then necessarily the appellate court has to supplement the reasons for disagreeing with the findings recorded by the trial court. It has been held by the Apex Court in the case of SAWARNI VS INDER KAUR AND OTHERS reported in AIR 1996 SC 2823 that appellate court should not set aside the findings of the trial court when the trial court has come to a conclusion based on material on record and substantiated by mighty evidence. It has been held as under:
"7. Having heard the learned counsel xxx Inder Kaur. The lower appellate court without focusing his attention to the weighty reasons advanced by the trial court and without examining the materials on record in that 51 respect even did not set aside the said finding of the trial court judge and yet reversed the decree of the trial judge. We have no hesitation to come to the conclusion that the said judgment of the Additional District Judge is wholly unsustainable in law."
(Emphasis supplied by me)
19. Learned Senior counsel has relied upon the Judgment of the Hon'ble Apex Court in the case of Mysore STATE ROAD TRANSPORT CORPORATION VS MIRJA KHASIM ALI BAIG AND ANOTHER reported in AIR 1977 SC 747 whereunder the contours of appellate court to interfere with the findings recorded by the trial court has been explained to contend that in the instant case there has been no reasons assigned by the trial court for reversing the finding of trial court. It has been held by the Apex Court in the said judgment to the following effect:
"18. This takes us to second limb of the fourth contention raised on behalf of the appellants. While it is true that the relief of declaration is discretionary, it is well settled that it is only if the discretion is not exercised by the lower court; in the spirit of the statute or fairly or honestly or according to the rules of reason and justice, that the order passed by the lower court can be reversed by the superior court. Reference in this connection may usefully be made to a decision of the Privy Council in Charles Osenton & Company v. Johnston where the legal position was succinctly stated as follows :-- 52
"There remains the question whether, assuming that in the circumstance of this case Tucker J.
had jurisdiction to make the order of reference, his conclusion must stand on the ground that it was reached in the exercise of his discretion and that the exercise of such discretion should not be interfered with an appeal. So the respondent contends, while the appellants urge that, even if the discretion to make the order existed, it was wrongly exercised in view of the gravity of the charges made against them, of the impossibility of appeal from an official referee's finding of fact, and in view of the practicability of the case being tried before a Judge without a jury. The law as to the reversal by a court of appeal of an order made by the judge below in the exercise of this discretion is well established, and any difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us by the 53 appellant, then the reversal of the order on appeal may be justified.
This matter was elaborately discussed in the decision of this House in Evans v. Bartlam, where the proposition was stated by my noble and learned friend, Lord Wright, as follows: "It is clear that the Court of Appeal should not interfere with the discretion of a judge acting within his jurisdiction unless the court is clearly satisfied that he was wrong. But the court is not entitled simply to say that if the judge had jurisdiction and had all the facts before him, the Court of Appeal cannot review his order unless he is shown to have applied a wrong principle. The Court must if necessary examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order. Otherwise in interlocutory matters, the judge might be regarded as independent of supervision. Yet an interlocutory order of the judge may often be of decisive importance on the final issue of the case, and one which requires a careful examination by the Court of Appeal.
Thus in Gardner v. Jay, Bowen L.J. in discussing the discretion of the judge as regards mode of trial says:
"That discretion, like other judicial discretions, must be exercised according to common sense and according to justice, and if there is a miscarriage in the exercise of it, it will be reviewed."54
20. The facts on hand would indicate that plaintiffs have filed the suits for perpetual injunction to restrain the defendants from interfering with their peaceful possession and enjoyment of the suit schedule properties. Plaintiffs in their suits have contended that it is a vacant residential sites conveyed to them under unregistered sale deeds executed by first defendant in their favour. The first defendant undisputedly has not filed the written statement. But on the other hand has filed a memo adopting the written statement filed by the second defendant who is none other than her son. First defendant undisputedly acquired title to the entire extent of the land in which the plaintiffs claim that first defendant had carved out the sites, under a settlement deed Exhibit D-19. Second defendant has filed a detailed written statement denying the claim of the plaintiffs and contending interalia that suit schedule property is in possession of the defendants and no residential sites have been carved out in the said property. He has also contended that it is an agricultural land and same is being cultivated by him and to evidence the said fact he has produced the revenue records like RTCs Exhibits D-2 to D-7, tax paid receipt Exhibit D-8 and report of the revenue authority at Exhibit D-10 55 contending interalia that Sy.No.167/1 is still an agricultural land. In other words there is absolute denial.
21. The plaintiffs have relied upon the sale deeds produced by them before trial court to contend they are in possession of the same and it is not in dispute that the sale deeds are not registered. The trial court on comparison of the schedule mentioned in the sale deeds with the schedule described in the plaint has arrived at a fact finding conclusion that it is not possible to come to the firm conclusion that the properties disclosed in those sale deeds is the same properties which has been disclosed by the plaintiffs in the respective suits. The trial court at paragraph 13, 15, 16 and 18 has summed up its conclusion that though plaintiff had amended the boundaries by including new boundaries in the place of old ones site numbers have not been changed and if the corporation authorities as claimed by the plaintiffs had visited the spot and later on issued the holder's khatha the said authorities should have necessarily issued new numbers and no material is available to arrive at a conclusion that new numbers were given in place of old ones.56
22. The lower appellate court has formulated the following points for its determination.
(1) "Whether the findings of the trial Court that even though the sale deeds produced by the plaintiffs speak regarding delivery of possession, they cannot be looked into for want of examination of attestors thereto is sustainable?
(2) Whether the impugned judgment calls for interference?
(3) What order?"
However, the lower appellate Court for reasons best known has not formulated the point for determination relating to the identity of the suit schedule properties on which the trial court had recorded a specific finding. While answering point No.1 formulated by it has proceeded to shift the burden on the defendants to establish the identify of the property and it has also been held that on account of evidence of DW-1 which was to the effect that in the said land bearing Sy.No.167/1 Ragi was grown being contrary to the RTC records namely D-6 and D-7 being silent to discard the defence. It might be true that the evidence tendered by the defendant cannot be eschewed. However, in a suit for perpetual injunction the plaintiff has to stand on the 57 strength of his own legs and cannot use the weaknesses of the defendant as his crutches.
23. The lower appellate Court has held that some of the PWs have spoken that an engineer from Mysore City Corporation had visited the spot, prepared a sketch of the layout formed in Sy.No.167/1 of Bogadi and has assigned the new Numbers to their sites and therefore the claim of the plaintiffs that site Numbers mentioned in their respective unregistered sale deeds is not different from the one mentioned in the plaint schedule swayed in the mind of the appellate Court to reverse the finding of trial Court. Undisputedly, no such sketch prepared by Engineer has seen the light of the day. It was not produced by the plaintiffs or summoned from the Corporation. Thus, it was not incumbent upon the lower appellate Court to formulate a specific point for its determination to find out as to whether the identity of the property is established by the plaintiffs from the available documents. In fact, a co-ordinate Bench of this Court in the case of ANNAMMA vs PATTAMMA reported in ILR 1991 KAR 1696 has been held that no 58 injunction can be issued in respect of an unascertained or undefined property.
24. As observed herein above, the burden having been thrown on the defendant to prove the negative or in other words, the lower appellate Court has found that second defendant has not examined the author of Ex.D-13 namely, the official of Corporation who had issued the endorsement as one of the grounds to reverse the finding of the trial Court. Undisputedly, the plaintiffs are seeking a relief of permanent injunction and burden is on them to prove the identity of the property, possession as on the date of suit and alleged interference by the defendants. It is no doubt true that plaintiffs can establish or prove that on the strength of an unregistered sale deed, they are in possession of the suit schedule property. The burden is on the plaintiff to establish the said fact and no person can dispossess without due process of law, a person who is in settled possession of the property.
25. In the light of discussion made herein above, I am of considered view that lower appellate court was not justified in reversing the Judgment of the trial court without 59 reversing the finding and without even assigning the reasons for such reversal.
26. Hence, the substantial questions of law formulated herein above, deserves to be answered in the negative namely, by holding that lower appellate Court was not correct in reversing the judgment and decrees passed by the trial Court without assigning specific reasons and the basis on which the finding of facts recorded by the trial Court is being reversed.
27. The lower appellate Court by judgment and decrees dated 21.04.2010 had decreed the suits in question and had restrained the defendants by way of permanent injunction from interfering with the suit schedule properties in any manner. Said judgment and decrees was the subject matter of these appeals. At the time of issuing notice, this Court by order dated 15.06.2010 had directed both the parties to maintain statusquo for a period of four weeks. Subsequently, it was extended on 19.07.2010. In that view of the matter, I am of the considered view that both parties should be directed to maintain statusquo namely, the nature and character of suit schedule properties shall not be altered 60 or changed till the appeals are disposed of by the lower appellate Court afresh.
28. For the reasons aforestated, following order is passed:
(1) The appeals - RSA Nos. 1494/2010, 1490/2010, 1491/2010, 1492/2010, 1493/2010, 1495/2010, 1496/2010, 1497/2010, 1971/2010, 1383/2010, 1384/2010, 1385/2010, 1386/2010, 1387/2010, 1388/2010, 1389/2010, 1390/2010, 1392/2010, 1405/2010, 1406/2010, 1407/2010, 1408/2010, 1409/2010, 1410/2010 and 1411/2010 are hereby allowed in part by answering the substantial questions of law formulated in favour of the appellants. (2) The judgment and decrees passed in R.A.Nos.203 to 224, 238, 258 & 259 of 2008 by I Addl.Sr.Civil Judge, Mysore dated 21.04.2010 are hereby set aside and the said appeals are remitted to the said Court for adjudication afresh keeping in mind the observations made herein above. 61 (3) Both parties are directed to maintain statusquo namely, the nature and character of suit schedule properties shall not be altered or changed till the appeals are disposed of by the lower appellate Court afresh.
(4) Parties to bear their respective costs. (5) Records are directed to be remitted back to the lower appellate Court forthwith by the Registry.
Sd/-
JUDGE *sp/SBN