Karnataka High Court
Smt.Sharnamma D/O Late Shantayya Swamy ... vs Gangamma W/O Veerabhadrappa & Ors on 8 January, 2019
Author: S.G.Pandit
Bench: S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF JANUARY, 2019
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
REGULAR SECOND APPEAL NO.200397/2018
BETWEEN:
Smt. Sharnamma
D/o Late Shantayya Samy Math
W/o Shekar
Aged 42 Years
Occ : Agriculture
Residing at Gajarkot
Tq. & Dist. Yadagiri
... Appellant
(By Sri J. Augustin, Advocate)
AND:
1. Gangamma
W/o Veerabhadrayya
Aged about 52 Years
Occ : Agriculture
R/at Jalahalli Village
Tq : Gangavati
Dist: Raichur
Presently R/at Gajarkot
Tq. & Dist : Yadagiri
2
2. Siddayya
S/o Veerabhadrayya
Aged Major
Occ : Agriculture
R/at Jalahalli Village
Tq : Gangavati
Dist : Raichur
Presently R/at Gajarkot
Tq. & Dist. Yadagiri
3. Bassayya
S/o Veerabhadrayya
Aged Major
Occ : Agriculture
R/at Jalahalli village
Tq : Gangavati
Dist : Raichur
Presently R/at Gajarkot
Tq. & Dist. Yadagiri
4. Ratnamma
W/o Shantayya Swamy Math
Age : 87 Years
Occ : Agriculture
5. Channayya
S/o Shantayya Swamy Math
Age : 47 Years
Occ : Agriculture
R4 and R5 both are R/at
Gajarkot, Tq & Dist : Yadagiri
... Respondents
This Regular Second Appeal is filed under Section
100 of the Code of Civil Procedure, praying to set aside
the judgment and decree dated 06.03.2018 passed in
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R.A.No.24/2014 by the Senior Civil Judge at Yadagiri
and also to set aside the judgment and decree dated
30.10.2014 passed in Os No.145/2011 by the Civil
Judge at Yadagiri and consequently the suit of the
plaintiff may kindly be decreed by allowing the present
R.S.A.
This appeal is coming on for orders, this day, the
court delivered the following:
JUDGMENT
The appellant/plaintiff No.3 is before this Court under Section 100 of Code of Civil Procedure challenging the judgment and decree dated 30.10.2014 in O.S. No.145/2011 on the file of the Civil Judge, Yadgiri as well as the judgment and decree dated 06.03.2018 in R.A.No.24/2014 on the file of Senior Civil Judge, Yadgir, by which the dismissal of the suit is confirmed.
2. The appeal is listed for orders on I.A.No.1/2018, which is filed for condonation of delay of 182 days in filing the appeal. Along with I.A., the 4 appeal is heard for admission. The appellant is plaintiff No.3 and respondent Nos.1 to 3 are defendants and respondent Nos.4 and 5 are also plaintiffs i.e., plaintiff Nos.1 and 2. The parties would be referred to as they stand in O.S. No.145/2011.
3. The plaintiffs filed OS No.145/2011 seeking relief of permanent injunction restraining defendant Nos.2 and 3 from interfering in to the peaceful joint possession and enjoyment of the plaintiffs and defendant No.1 over the suit schedule properties i.e. Sy.No.571 measuring 2 acres 4 guntas, Sy.No.444 measuring 10 acres 18 guntas and Sy.No.1025 measuring 2 acres at Gajarkot village.
4. It is the case of the plaintiffs that plaintiffs and defendant No.1 are related to each other. Plaintiff No.1 is the mother of defendant No.1 and plaintiff Nos.2 and 3. The suit schedule properties are in joint possession and enjoyment of the plaintiffs and 5 defendant No.1. Defendant Nos.2 and 3 are sons of defendant No.1. The suit schedule properties are ancestral properties inherited and succeeded by common ancestor late Shantayyas Swamy Math who is father of defendant No.1. After death of the said Shantayya Swamy Math, the plaintiffs and defendant No.1 succeeded to the suit schedule properties.
5. It is further stated that defendant Nos.2 and 3 even though they have no right, title or interest over the suit schedule properties got their names entered in the RTC extracts in collusion with revenue officials. The plaintiffs filed suit in O.S. No.135/1993, which was dismissed and R.A.No.1/2010 was preferred, wherein entries made in RTC extracts challenged which is still pending.
6. The defendants on appearance filed their written statement contending that the plaintiffs had filed suit for declaration and injunction against the 6 defendants in OS No.135/1993 and after full fledged trial, the suit came to be partly decreed on 15.07.1998. R.A.No.25/2008 preferred against the judgment and decree was allowed and remanded. After remand again suit was decreed. Against the said judgment and decree R.A.No.1/2010 was filed, wherein the regular appeal was partly allowed and the claim of the plaintiffs in respect of the present suit schedule properties is dismissed holding that the plaintiffs are nowhere concerned to the suit schedule properties. The said judgment and decree has become final.
7. Further it is the case of the defendants that late Shantayya Swamy Math had executed will on 15.05.1981 bequeathing the suit schedule properties in favour of defendant Nos.2 and 3, by which they became exclusive owners and possessors of the suit schedule properties. They further contended that suit in the present form is not maintainable.
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8. Based on the pleadings, the trial Court framed the following issues:
1. Whether the plaintiffs prove that, they are in possession and enjoyment of shit schedule property as on the date of suit?
2. Whether the plaintiffs further prove that, defendants are causing interference to the possession of plaintiffs over the suit schedule property?
3. Whether the plaintiffs are entitled for the relief of permanent injunction as sought for?
4. What order or decree?
9. In support of the case of the plaintiffs, plaintiff No.3 examined herself as PW.1, three other witnesses as PWs.2 to 4 and produced Exs.P.1 to P.59, whereas defendant No.2 examined himself as DW.1 and produced Exs.D.1 to D.10. The trial Court on examination of the entire material on record both oral and documentary, rejected the suit of the plaintiffs holding that the plaintiffs have not produced any documentary evidence to show their possession even 8 though the plaintiffs have examined PWs.2 to 4 to substantiate their evidence.
10. It is further held that the RTCs' in respect of the suit schedule properties stand in the names of defendant Nos.2 and 3. Thus, came to the conclusion that the plaintiffs are not in possession of the suit schedule properties. Further, the trial Court has also observed that as the suit schedule properties stand in the names of defendants, plaintiffs' suit only for relief of bare injunction without comprehensive relief is not maintainable.
11. Aggrieved by the said judgment and decree dated 30.10.2014, in O.S.145/2011, the plaintiffs preferred R.A.No.24/2014 on several grounds and contended that the judgment of the trial Court is erroneous and same has been passed without understanding the facts and law applicable. The 9 Appellate Court on hearing both the parties formulated the following points for its consideration:-
1. Whether the trial Court has erred to consider the evidence of both parties and wrongly passed the erroneous judgment?
2. Whether the judgment and decree passed by the lower Court calls for interference of this Court?
3. What order or decree?
12. The first Appellate Court negatived the point with regard to whether the trial Court has erred to consider the evidence of both parties and wrongly passed the erroneous judgment. Further the first Appellate Court also negatived the point with regard to whether the judgment and decree passed by the lower Court calls for interference. The Appellate Court recorded on examination of documents produced by the plaintiffs i.e., 59 documents, that originally the suit 10 schedule properties stood in the name of Shantayya Swamy Math who is husband of plaintiff No.1 and father of defendant No.1. The trial Court while dismissing the suit has observed with regard to the earlier suit in O.S.No.135/1993 filed by the plaintiffs for declaration of ownership over the suit lands and a house property, wherein the suit was decreed and in R.A.No.1/2010, the said judgment and decree was set aside and the plaintiffs have not challenged the said judgment and decree passed in RA No.1/2010. The first Appellate Court has also on the documents and RTC extracts has come to the conclusion that the defendants are in exclusive possession and enjoyment of the suit lands. Based on the presumptive value under Section 133 of the Karnataka Land Revenue Act, both the Courts have held that the plaintiffs have not proved their possession over the suit schedule properties. Being aggrieved by both the judgment and decree of the trial Court and the judgment and decree of the 11 Appellate Court, the plaintiffs are before this Court in this appeal under Section 100 of the CPC suggesting the following substantial questions of law:-
1. Whether the both the Courts are right in dismissing the suit of the plaintiffs?
2. Whether Late Shantayya could legally disposed of his entire ancestral property by way of a will in favour of his grand-children i.e., the defendants No.2 & 3 excluding the other coparceners?
13. I.A.No.1/2018 is filed along with the appeal to condone delay of 182 days in filing the appeal. The suit is one for permanent injunction in respect of the suit schedule properties against the defendants. It is an admitted fact that plaintiff No.1 is the mother of defendant No.1 and the suit schedule properties originally stood in the name of late Shantayya Swamy Math who is the father of defendant No.1 and husband of plaintiff No.1. It is the contention of defendant Nos.2 12 and 3 that the said late Shantayya Swamy Math had executed will dated 15.05.1981 in favour of defendant Nos.2 and 3 and after the death of that Shantayya Swamy Math on 31.07.1987, defendant Nos.2 and 3 have become exclusive owners in possession of the suit schedule properties and they are cultivating the lands personally. Admittedly, the suit documents would indicate that the properties stand in the names of defendant Nos.2 and 3. The suit is one for bare injunction without there being any comprehensive relief of declaration or possession. When the suit schedule properties stand in the names of defendant Nos.2 and 3, without there being any comprehensive relief, the suit for permanent injunction would not be maintainable.
14. Further it is an admitted fact that the plaintiffs had filed O.S. No.135/1993, for declaration and injunction in respect of the suit schedule properties. The said suit came to be decreed and appeal 13 filed by defendant Nos.2 and 3, the judgment and decree passed in O.S. No.135/1993 was set aside holding that the plaintiffs are nowhere concerned to the suit schedule properties. The said judgment and decree has become final, as the plaintiffs have not filed any further appeal.
15. The Appellate Court also on examination of the records has rightly come to the conclusion that defendants are in possession and enjoyment of the suit schedule properties and that the plaintiffs have not proved their possession. In a suit for injunction, the only question to be decided is whether the plaintiffs are in lawful possession or not? The plaintiffs have not produced any cogent documentary evidence to show their possession. The plaintiffs have utterly failed to prove their lawful possession over the suit schedule properties. In the absence of any material evidence, the Courts below have rightly dismissed the suit and the 14 same is affirmed in the appeal. Admittedly, in the instant case the plaintiffs have not sought any declaratory relief. In the above facts and circumstances of the case, no substantial question would arises for consideration in the present appeal.
Further the plaintiffs have not assigned proper reasons for delay of 182 days in filing the above appeal. Therefore, I.A.No.1/2018 is dismissed. Consequently, the appeal is also dismissed.
Sd/-
JUDGE RSP