Karnataka High Court
R Somasundara vs Smt S Pushpa on 16 September, 2020
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MS.JUSTICE JYOTI MULIMANI
R.S.A. NO.2208/2010 (INJ)
BETWEEN:
1. R.Somasundara
Aged about 39 years,
S/o M.Rajanna,
2. R.Lokesh @ Kumar
Aged about 31 years,
S/o M.Rajanna,
3. Smt. Shivamma
Aged about 63 years,
W/o M.Rajanna,
All are R/at D.No.32,
Giriyabovi Palya,
Nazarbad Mohalla,
Mysore-570 006. ...Appellants
(By Sri. P.Nataraju, Adv.)
AND:
Smt.S.Pushpa
Aged about 61 years,
W/o Srinivasan,
D.No.2055, 6th Cross,
K.Block, Kuvempunagar,
Mysore-570 006. ...Respondent
(By Sri. B.S.Nagaraj, Advocate)
2
This R.S.A. is filed under Section 100 of Code of
Civil Procedure against the judgment and decree
passed by the learned V Additional District Judge at
Mysore in R.A.No.438/2009 dated 23.06.2010,
confirming the judgment and decree passed by the
learned I Addl. I Civil Judge (Jr.Dn.) at Mysore in
O.S.No.1055/2001 dated 29.11.2006.
This appeal coming on for admission this day,
the Court delivered the following: -
JUDGMENT
The appellants/defendants have filed this Regular Second Appeal challenging the judgment and decree dated 23.06.2010 passed by the Court of V Addl. District Judge, Mysore in R.A.No.438/2009, confirming the judgment and decree dated 29.11.2006 passed by the I Addl. Civil Judge (Jr.Dn.), Mysore in O.S.No.1055/2001.
2. Appeal is posted for Admission after notice to respondent.
3
3. Sri.P.Nataraju, learned counsel for appellants has appeared in-person and Sri.B.S.Nagaraj, learned counsel for respondent has appeared through video conferencing.
4. For the sake of convenience, the parties are referred to as per their rankings before the trial Court.
5. It is the case of plaintiff that the suit schedule property Sy.No.191/1 situated at Kyathamaranahalli Village, Kasaba Hobli, Mysore Taluk, measuring 4 acres originally belonged to one - Smt.Puttamma, wife of Mudduramaiah. Contending that it is her self-acquired property, Smt.Puttamma sold the entire extent of the land in bits to various persons under different registered sale deeds from 1963-64 to 1969-70. A plan showing the respective bits/plots was also registered along with the registered sale deeds. Hence, it is averred that Smt.Puttamma divested all her right, title and 4 interest without retaining any portion in the said survey number.
Plaintiff stated that Plot No.22, which is morefully described in the plaint schedule was purchased by one - Smt.Thangammal wife of A.S.Deshikachar under a registered sale deed dated 19.09.1964 which was registered on 28.10.1964. Subsequently, the Khatha was changed in the name of said Smt.Thangammal. After her death, her husband, A.S.Deshikachar became the absolute owner of the same and he sold it in favour of plaintiff under sale deed dated 20.12.1984 and put plaintiff in possession of the suit schedule property.
It is averred that after purchase of the property, plaintiff constructed the house in the suit schedule property. Subsequently, she applied for regularization of the unauthorized construction. It is stated that the Mysore City Corporation (for short, 'MCC') and Mysore Urban Development Authority (for short, 'MUDA') have regularized the unauthorized 5 construction made by plaintiff. Thereafter, on 12.06.2000, Holder Khatha was issued by MCC observing all formalities in favour of plaintiff. It is also stated that she has paid developmental charges and other charges and the Kandayam.
Contending that she is in possession and enjoyment of the suit schedule property and that defendants have no right, title, interest or possession over the suit schedule property tried to interfere with her peaceful possession and enjoyment of the suit schedule property initiated action for the relief of permanent injunction.
6. Defendant No.2 filed written statement inter alia contended that suit schedule property originally belonged to one Smt.Puttamma; the mother of defendant No.1. He stated that Smt.Puttamma has not sold any portion of the property in Survey No.191/1 to anybody any point of time. He sought to contend that, some strangers got entered their names in respect of above said survey number in the RTC 6 without his knowledge. Hence, he was constrained to prefer an RRT Appeal before the Assistant Commissioner and the same came to be allowed. Subsequently, he got converted some portion of agricultural land in the above said survey for non- agricultural purpose i.e., for residential purpose and the same was renumbered as survey No.191/1-JJ. He has been in peaceful possession and enjoyment of the suit property and has been exercising all right of ownership. Accordingly, he prayed for dismissal of the suit.
7. Based on the rival pleadings of the parties, the trial Court has framed the following:
ISSUES I. Whether the plaintiff proves that she is in possession of the suit schedule property?
II. Whether the plaintiff proves the
interference of the defendant with
respect to the suit schedule property?
III. What relief is the plaintiff entitled to?7
IV. What order?
8. To substantiate her contentions, plaintiff got examined herself as PW1 and got marked as many as 13 documents as Exs.P1 to P13. On behalf of defendants, 2nd defendant got examined himself as DW1 and got marked 26 documents as Exs. D1 to D26.
On the basis of material proof, the trial Court held that plaintiff is in lawful possession and enjoyment of the suit property as on the date of the suit and restrained defendants from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule property.
Defendants assailed the judgment and decree of the trial Court by filing an appeal before the Court of V Addl. District Judge, Mysore, in R.A.No.438/2009. The First Appellate Court dismissed the appeal confirming the judgment and decree passed by the trial Court.
8
Aggrieved by the judgment and decree of the First Appellate Court, appellants/defendant Nos.2 to 4 have preferred this appeal under Section 100 of Code of Civil Procedure,1908 (CPC).
9. Sri.P.Nataraju learned counsel for appellants submitted that the judgment and decree of the Courts below are contrary to the law and evidence on record. He submitted that both the Courts below erred in relying upon the self-serving testimony of plaintiff.
Next, he submitted that the First Appellate Court ought to have remanded the matter to the trial Court for fresh enquiry.
A further submission was made that the trial Court has not accorded sufficient opportunity to defendants to prosecute their case. He submitted that Defendant No.2 was constrained to make an application under Order XVIII Rule 17 read with Section 151 of CPC to re-open the case to adduce 9 evidence. But the trial Court dismissed the application and proceeded to pass the judgment and decree. The First Appellate Court has confirmed the finding.
Learned counsel contended that both the Courts below committed an error in not properly considering the fact that the suit schedule property is the ancestral property of defendants and the same was divided through Palu Parikath dated 08.11.1960 and in subsequent arrangments entire survey number has fallen to the share of the father of defendant No.2- Rajanna and his name was also entered in the revenue records. Neither deceased-Puttamma nor Rajanna have sold any portion of the property in favour of plaintiff. Hence, he urged that plaintiff has no right, title or interest over the suit schedule property.
Learned counsel submitted that the findings on issues has to be preceded by reasonings and analysis of both facts and law, on appreciation of relevant pleadings and evidence produced by the respective parties to the suit. In support of the above said 10 contention, he has relied upon the decision rendered in the case of Premanath Kakde vs. Amarnath reported in ILR 2017 KAR 3329.
Lastly, he submitted that the second appeal involves substantial questions of law. Accordingly, he submitted the appeal may be admitted by framing substantial questions of law.
10. Per contra, learned counsel for respondent submitted that the both the Courts below have considered the matter in its right perspective and there is no justification to interfere with the concurrent findings of fact.
He submitted that the trial Court has relied upon Ex.P1-sale deed and has rightly decreed the suit for injunction. The First Appellate Court has considered the matter in its right perspective and confirmed the judgment and decree of the trial Court.
Insofar as the contention with regard to findings on re-opening of the case, learned counsel submitted 11 that defendants are estopped from contending that no opportunity was given to them for the simple reason that the trial Court granted sufficient opportunity, but they did not utilize the same. Accordingly, he submitted that the second appeal does not involve any substantial questions of law and the same is liable to be dismissed.
11. Heard the submissions and noted the contentions with care. Perused material on record.
12. As could be seen from the nature of lis between the parties, the suit is for bare injunction based on possession as on the date of suit. The right to injunction is based on prima facie right. In the present case, the trial Court found from the evidence on record that plaintiff has purchased the suit schedule property from one - A.S.Deshikachar under sale deed dated 20.12.1984.
It is relevant to note that the documentary evidence of ownership, like a sale deed, cannot be 12 ignored. The documents produced by plaintiff would show that she has sufficient interest to maintain an action. On the basis of material proof, the trial Court held that plaintiff is in lawful possession of the suit as on the date of the suit.
It would be relevant to observe that in a suit for bare injunction, plaintiff is required to prove his/her lawful possession and enjoyment over the suit schedule property as on the date of filing of the suit. On the basis of material proof, the trial Court held that plaintiff is in lawful possession of the suit property. Appellate Court has examined the evidence on record and re-appraised it. I am satisfied that it has been appreciated in the correct perspective. Further, the findings by the Court of facts is neither vitiated by non-consideration of relevant evidence nor there is an erroneous approach to the matter. I do not find any error in the finding of facts.
It is perhaps well to observe here that after 1976 amendment, the scope of Section 100 of CPC 13 has been drastically curtailed and narrowed down. The High Court would have jurisdiction of interfering under Section 100 of CPC, only in a case where substantial question of law is involved and those questions have been clearly formulated in the Memorandum of appeal. But, the present second appeal does not involve any substantial questions of law.
The decision relied upon by learned counsel for appellant in Premanath Kakde V/s. Amarnath reported in ILR 2017 KAR 3329 is not applicable to the facts and circumstances of the present case.
13. In the last resort, learned counsel for defendants has argued that defendants had sought for remand of the case as the trial Court did not accord sufficient opportunity to put forth their case. Learned counsel further urged that the First Appellate Court instead of remanding the matter has erroneously proceeded to dismiss the appeal. 14
I have considered the above contentions urged on behalf of defendants with care. The above said contentions in fact were urged before the trial Court as well as before the First Appellate Court. Learned Judges of both the Courts below have elaborately dealt with the said contentions (regarding opening of the case). In fact, learned Judge of the First Appellate Court in Paragraph 20 of the judgment has considered this aspect of the matter in detail. I would observe that defendants have not satisfied the onus of showing that the discretion of the Judge (Trial Court) in refusing to re-open the case had been wrongly exercised.
I would observe further that a Judge's order fixing the date of trial or refusing to grant an adjournment is a typical exercise of purely discretionary powers, and would be interfered with by the higher Courts only in exceptional cases. 15
14. In the result, I find no merit in this appeal and accordingly it is dismissed at the stage of admission.
Sd/-
JUDGE JS/-