IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.2626/2017 BETWEEN:
SMT.RAHAMATH KHATOON W/O A.SADIQ AGED ABOUT 40 YEARS R/AT BAKHARI SAB GALLI NEWPET GAURIBIDNUR TOWN KOLAR DISTRICT – 561 208 … APPELLANT (BY SMT.S.TAJ, ADVOCATE) AND:
SRI AZAM S/O LATE SHAIK FAKRUDIN SAB AGED ABOUT 52 YEARS R/AT PEERU SAB GALLI GAURIBIDNURU TOWN CHIKKABALLAPUR DISTRICT – 561 208 … RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:18.09.2017 PASSED IN R.A.NO.01/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., GOWRIBIDANUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 26.10.2015 PASSED IN O.S.NO.291/2011 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC., GOWRIBIDANUR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal of the plaintiff arises out of the judgment and decree dated 18.09.2017 in Regular Appeal No.01/2016 passed by the Senior Civil Judge and J.M.F.C., at Gowribidanur.
2. By the impugned judgment and decree, the First Appellate Court allowed the appeal of the defendant, reversed the judgment and decree dated 26.10.2015 in O.S.No.291/2011 passed by the Principal Civil Judge & J.M.F.C., Gauribidanur. By the said judgment and decree, the Trial Court had decreed the suit of the plaintiff for permanent injunction.
3. The appellant was the plaintiff and respondent was the defendant before the trial court. For the purpose of convenience, parties will be referred to henceforth as per their rankings before the trial Court.
4. Subject matter of the suit was house property bearing Town Municipal Assessment No.124/109 measuring 31¼ feet x 24 feet situated at Gowribidanur town.
5. The case of the plaintiff in brief is as follows:
She is the younger sister of the defendant. Her mother was the absolute owner of the suit property. Her mother executed Ex.P1 gift deed dated 14.06.2011 and put her in possession of the property. Thereby she has become the absolute owner of the property. The defendant was obstructing her possession. Therefore, she seeks decree for permanent injunction.
6. Defendant contested the suit denying the title of the mother, the gift deed set up by the plaintiff and her possession. He further contended that the plaintiff has suppressed pendency of O.S.No.234/2009 between the parties for partition and separate possession of the suit property and sought for dismissal of the suit.
7. On the basis of such pleadings, the trial court framed the following issues:
“1. Whether the plaintiff proves that the plaintiff is in possession and enjoyment of the suit schedule property?
2. Whether the plaintiff proves the alleged interference by the defendant?
3. Whether the defendant proves that, the property involved in O.S.234/09 are one and the same and therefore this suit is hit by the principles of resjudicata?
4. Whether the plaintiff is entitled for the relief of permanent injunction?
5. What order or decree?”
8. The parties adduced evidence. On behalf of the plaintiff, PWs-1 to 4 were examined and Exs.P1 to P18 were marked. On behalf of the defendant, DWs- 1 to 3 were examined and Exs.D1 to D7 were marked.
9. The trial court after hearing the parties decreed the suit holding that the title and possession of the plaintiff is proved by Ex.P1 registered gift deed and Assessment Register Extract, Tax paid receipts, Encumbrance Certificate and Election ID, which were marked at Exs.P2 to P14 and P18.
10. The trial court further held that the pendency of O.S.No.234/2009 does not operate as res judicata for the subsequent suit filed by the plaintiff.
11. Aggrieved defendant challenged the said judgment and decree before the first appellate court in R.A.No.01/2016. The first appellate court by the impugned judgment and decree allowed the appeal and dismissed the suit on the following grounds:
(i) The admissions of PWs-1 and 2 show that the plaintiff’s father was the absolute owner of the property and he died intestate;
(ii) The evidence on record and the admissions of PWs-1 and 2 prove that on death of plaintiff’s father, the property devolved on all the heirs and therefore, the plaintiff’s father had no right to execute the gift deed;
(iii) The admissions of PWs-1 and 2 show that the defendant was in possession of the property since last 20 years and plaintiff was not in possession as on the date of the suit;
(iv) Ex.D7 Order sheet of O.S.No.234/2009 show that the defendant has filed the suit against his brothers and sister for partition and said suit is still pending.
12. Smt.S.Taj, learned Counsel for the appellant – plaintiff seeks to assail the judgment and decrees of the courts below on the following grounds:
(i) In a suit for bare injunction, the first appellate court should not have gone into the question of title of the plaintiff’s mother or the plaintiff;
(ii) The cause title of the plaint and Exs.P1 to P18 produced by the plaintiff showed that she was in possession of the property;
(iii) The pendency of O.S.No.234/2009 was irrelevant for the purpose of adjudication of the suit on hand. According to her, these are the substantial questions of law.
13. This being a second appeal under Section 100 CPC can be admitted for hearing only if it is shown that the matter involves a substantial question of law for consideration.
14. The Hon’ble Supreme Court in (i) Santosh Hazari –vs- Purushottam Tiwari (Dead) by LRs. - AIR 2001 SC 965; and (ii) Gurnam Singh (Dead) by LRs & Others –vs- Lehna Singh (Dead) by LRs. AIR 2019 SC 1441 has explained what is the substantial question of law. It was held that in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law; OR (ii) Contrary to the law as pronounced by the Apex Court; OR (iii) Based on in-admissible evidence or no evidence.”
(emphasis supplied) 15. Now this Court has to see whether the case on hand satisfies all the aforesaid norms and involves substantial question of law.
16. It is a settled position of law that in a suit for permanent injunction plaintiff is required to prove his/her lawful possession of the suit property as on the date of the suit and interference by the defendant. The plaintiff based her possession on Ex.P1 Gift Deed said to be executed by her mother, who was examined as PW-2.
17. In the judgment of the first appellate court, the deposition of PWs-1 and 2 are extracted. The said extraction shows that PW-2 in her cross- examination admitted that defendant is in possession of the property since last 20 years and she stated that it is enough for her if the defendant hands over possession to her.
18. The judgment of the first appellate court further shows that PW.2 admitted that the property devolved on her from her husband on his death and she stated that she does not know when she executed the gift deed and what all she has stated in the gift deed.
19. The judgment of the first appellate court further indicates that PW-1 admitted that her father was the absolute owner of the property till his death and at the time of death of her father, all the family members were living together. If that is the case, plaintiff cannot seek injunction against the co-owner.
20. There is no dispute that defendant filed O.S.No.234/2009 against his sister and mother claiming partition and separate possession in the suit schedule property and that was still pending. However, while filing the suit, the said fact was suppressed. It is also to be noted that whatever revenue entries plaintiff relied were effected consequent to the gift deed relied upon by her. The revenue entry in the name of her mother was effected on the demise of her father as his legal representative.
21. Furnishing the address in the cause title does not prove lawful possession of the plaintiff as on the date of the suit. To rebut that, defendant also had produced his ration card, Aadhar card, Election ID and electricity bills.
22. Taking into consideration all these aspects, the first appellate court allowed the appeal and dismissed the suit. This Court does not find that the judgment and decree of the first appellate court was contrary to any applicable law, judicial precedents or based on inadmissible or no evidence. This Court does not find any substantial question of law in the matter to admit the appeal. Therefore, the appeal is dismissed with costs.
In view of disposal of the appeal, I.A.No.1/2019 stood disposed of.
Sd/- JUDGE KNM/-