IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR R.F.A.NO.72 OF 2011 BETWEEN:
Smt. Manjula W/o Rama Reddy Aged about 34 years R/at Doddanekkundi village HAL Post, Bengaluru-560 017 …Appellant (By Smt. Gowhar Unnisa, Advocate for Sri V.Viswanath, Advocate) AND:
Smt. B.K.Padmavathi W/o Gopalappa Aged about 55 years R/at No.40, Sri Rama Mandira Road Basavanagudi Bengaluru – 560 004 ... Respondent (Notice to respondent held sufficient v/o dated 30.07.2015) This RFA is filed under Order 41 Rule 1 read with Section 96 of CPC against the judgment and decree dated 24.07.2010 passed in O.S.No.8974/2006 on the file of the VIII Additional City Civil Judge, Bengaluru, dismissing the suit for permanent injunction.
This appeal coming on admission this day, the Court delivered the following:
JUDGMENT Heard the appellant’s counsel at the time of admission and perused the records including the impugned judgment.
2. This appeal is filed by the plaintiff seeking relief of permanent injunction to restrain the defendant from interfering with her peaceful possession and enjoyment of the plaint schedule property. According to plaintiff, the plaint schedule property was bequeathed to her by one Ramaiah under a will dated 14.10.1997. Ramaiah died on 26.12.1998. She has stated that after the death of Ramaiah she became the absolute owner of the property and has been in its possession. She also pleaded that the defendant started disturbing her possession and therefore, she made a complaint to the police; they did not take action and therefore she filed a suit.
3. The defendant contended in the written statement that the property did not belong to Ramaiah. In fact, Ramaiah executed his last Will on 09.12.1998, bequeathing all his properties to his children. Plaint schedule property belonged to one Papanna and he gifted the same to her(defendant) on 21.03.1981. On the basis of the gift deed, she claims to be in possession of the plaint schedule property. She has denied the plaintiff’s possession over suit property and the allegation of interference. It is also stated that since she is in possession of the plaint schedule property, it is highly impossible that she would have interfere with the plaintiff’s possession.
4. The trial Court framed issues and recorded evidence of the witnesses. The plaintiff adduced evidence as PW-1 and also examined another witness i.e., PW-2. Plaintiff produced seven documents as per Exs.P.1 to P.7, of which, Ex.P.1 is the Will dated 14.10.1997. The defendant also adduced evidence as DW-1 and produced 26 documents as per Exs.D.1 to D.26.
5. On appreciating the evidence, the trial Court came to conclusion that the plaintiff was not able to prove her lawful possession over the plaint schedule property on the date of the suit. The plaintiff claimed lawful possession on the basis of the Will dated 14.10.1997, executed by one Ramaiah. Though she produced will as per Ex.P.1, its execution according to Section 68 has not been proved by the plaintiff by examining at least one of the attestors. Secondly, considering the other documents, the trial Court held that even those documents do not help to prove the plaintiff’s possession in any way, because, they are the revenue documents which showed the name of Ramaiah in respect of land bearing Sy.No.134 and Sy.No.128 for the year 2004-05. It is also held that Ex.P.2 and P.3 do not pertain to the plaint schedule property. Even with regard to other documents, Ex.P4 to P6, it has been held by the trial Court that those documents do not prove the possession of the plaintiff on the date of the suit. Perusing the evidence given by PW-1, the trial Court has come to conclusion that from her oral evidence also it is not possible to infer that she was in possession of the plaint schedule property on the date of the suit.
6. Examining the documents produced by the defendant it is held by the trial Court that although the defendant has not proved the execution of Gift deed dated 21.03.1981 produced as per Ex.D.6, the other documents produced by the defendant prove her possession over the plaint schedule property. The trial Court has clearly recorded its finding that defendant has leased out the property to a Company.
7. It is needless to say that burden is on the plaintiff to prove her possession over the suit property on the date of the suit. When the plaintiff claims to be in possession of the plaint schedule property on the basis of the Will, she must establish the Will by examining at least one of the attestors as per Section 68 of Indian Evidence Act. If attestors are not available, for proving the will, the next course available is as per Section 69 of the Indian Evidence Act. Mere production of Will does not result in proving her lawful possession. Since this is a suit for injunction, if even will is ignored to ascertain whether she was in possession of the suit property on the date of the suit, her answers in the cross examination do not inspire to believe her evidence. She was not aware whether a compound is constructed around the plaint schedule property; she was also not aware whether gate has been fixed or not. Therefore, these answers clearly indicate that she is not at all aware of the actual status of the plaint schedule property. In these circumstances, the trail Court came to the conclusion that the plaintiffs possession on the date of the suit cannot be inferred. I do not think that the trial Court has committed any error in dismissing the suit. This appeal is devoid of merits. Appeal is dismissed.
KMV/-
Sd/- JUDGE