IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.3496/2006 BETWEEN:
SRI BOREGOWDA DEAD BY LRS.
a) SMT.LAKSHMAMMA W/O. LATE BOREGOWDA AGED ABOUT 55 YEARS R/AT HONNENAHALLI VILLAGE CHIKKAKADALUR DAKLE DUDDA HOBLI, HASSAN TALUK HASSAN DISTRICT- 573 201 b) SRI MANJUNATHA S/O. LATE BOREGOWDA AGED ABOUT 33 YEARS R/AT HONNENAHALLI VILLAGE CHIKKAKADALUR DAKLE DUDDA HOBLI, HASSAN TALUK HASSAN DISTRICT- 573 201 …APPELLANTS (BY SRI K.N.NITISH FOR SRI K.V.NARASIMHAN. ADVOCATES) AND:
1. SMT.DEVAMMA W/O. SIDDEGOWDA MAJOR 2. SMT.SHANTHAMMA D/O. SIDDEGOWDA MAJOR 3. SMT.RATHNAMMA D/O. SIDDEGOWDA MAJOR 4. SMT. NANJAMMA D/O. SIDDEGOWDA MAJOR 5. SRI CHANDREGOWDA S/O. SIDDEGOWDA MAJOR ALL ARE R/AT HONNENAHALLI VILLAGE CHIKKAKADALUR DAKLE DUDDA HOBLI, HASSAN TALUK HASSAN DISTRICT- 573 201 …RESPONDENTS (BY SRI PRAKASHA.H.C., ADVOCATE FOR R1 TO R3 & R5; VIDE ORDER DATED 19.11.2019, VAKALAT IN RESPECT OF R4 REJECTED) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 17.01.1998 PASSED BY THE ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION) & J.M.F.C-II COURT, HASSAN IN O.S.NO.106/1995 (OLD NO.287/1988) AND TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE ADDITIONAL SESSIONS JUDGE & PRESIDING OFFICER, FAST TRACK-III, HASSAN IN R.A.NO.47/2004.
THIS RSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This regular second appeal of the defendant arises out of the judgment and decree dated 05.11.2005 in R.A.No.47/2004 passed by the Additional Sessions Judge and Presiding Officer, Fast Track Court-III, Hassan. By the impugned judgment and decree, the First Appellate Court dismissed the appeal of the appellant and confirmed the judgment and decree dated 17.01.1998 passed by the Additional Civil Judge (Junior Division) & J.M.F.C II-Court, Hassan in O.S.No.106/1995 (Old No.O.S.No.287/1988). By the said judgment and decree, the trial Court had decreed the suit of the present respondents against the appellant for permanent injunction.
2. The appellant was the sole defendant.
Respondents were the plaintiffs before the trial Court. For the purpose of convenience, parties will be henceforth referred to with their ranks before the trial Court. During the pendency of this appeal, the sole appellant died and his wife and son are prosecuting the appeal as his legal representatives.
3. Nanjamma the elder sister of plaintiff No.1 was married to Siddegowda. During her life time, subsequently plaintiff No.1 was married to the said Siddegowda. Defendant is the son of Nanjamma.
Plaintiff Nos.2 to 5 are the daughters and son of plaintiff No.1-Devamma. Nanjamma and Devamma inherited the suit schedule properties from their father.
4. The plaintiffs case in brief is as follows: Nanjamma till her death lived with the plaintiffs.
Defendant separated from Nanjamma before her death. She had given him the share in the properties inherited by her. She executed the Will dated 24.05.1985 bequeathing the suit schedule properties in favour of the plaintiffs and portion of the house in favour of the defendant. Defendant is in possession of the house bequeathed to him under the Will. However, after death of Nanjamma, he started obstructing plaintiffs’ peaceful possession and enjoyment of their properties. Thus, they claim permanent injunction.
5. Defendant filed written statement denying execution of the Will set up by the plaintiffs and their possession. He claimed that he is in exclusive possession of the properties.
6. On the basis of such pleadings, the trial Court framed the following issues:
1. Whether the plaintiffs prove their lawful possession of suit properties as on the date of suit?
2. Whether the plaintiffs further prove the alleged interference and obstruction by defendant to such of their possession?
3. Whether the plaintiffs are entitled for the relief of perpetual injunction?
4. To what decree or order?
7. Parties adduced evidence. On behalf of plaintiffs, plaintiff No.1 was examined as PW.1 and two other witnesses were examined as PW.2 and PW.3 and Ex.P1 to Ex.P13 were marked. On behalf of the defendant, DW.1 and DW.2 were examined and no document was marked.
8. The trial Court after hearing the parties decreed the suit holding that the plaintiffs have proved their lawful possession and interference of the defendant.
9. Defendant challenged the said judgment and decree before the Additional Sessions Judge and Presiding Officer, Fast Track Court-III, Hassan in R.A.No.47/2004. The First Appellate Court by impugned judgment and decree dismissed the appeal and confirmed the judgment and decree of the trial Court holding that the plaintiffs by oral and documentary evidence have proved the Will Ex.P1 and their possession of the properties.
10. Being aggrieved by the said judgments and decrees, the appellant is before this Court. This Court admitted the appeal for consideration of the following substantial questions of law:
1. Whether the courts below are justified in granting relief of permanent injunction in favour of the respondent/plaintiffs by adjudicating the disputed question of title in a suit for permanent injunction where no issue regarding title had been framed?
2. Whether the judgments of the courts below holding that the respondents/plaintiffs are in possession of the property on the basis of the will – Ex.P.1 is contrary to the oral and documentary evidence on record?
11. Sri K.N.Nitish, learned Counsel appearing for appellants seeks to assail the impugned judgments and decrees of the Courts below on the following grounds:
(i) When the defendant challenged the Will, the plaintiffs ought to have brought the suit for declaration of title and for permanent injunction. Therefore, the suit as framed was not maintainable;
(ii) In the suit for bare injunction, the Courts below were not right in adjudication of the title of the plaintiffs to the suit schedule properties; & (iii) Evidence adduced regarding execution of the Will was inadequate;
12. In support of his contentions, he relies upon the following judgments:
1. Anathula Sudhakar v. P.Buchi Reddy1 2. Premji Ratansey Shah v. Union of India2 1 (2008) 4 SCC 594 2 (1994) 5 SCC 547 13. Per contra, Sri Prakasha H.C., learned Counsel for respondent Nos.1 to 3 and 5 seeks to support the impugned judgments and decrees of the Courts below on the following grounds:
(i) DW.1 in his evidence has unequivocally admitted possession of the plaintiffs and that the properties devolved on Nanjamma and plaintiff No.1 from their father. Therefore, they were co-owners and therefore, there was no need to seek declaration;
(ii) The evidence of DW.1 showed that he was in possession of the properties which were allotted to him by Nanjamma and which were given to him under the Will; & (iii) The Will was registered document and that was duly proved.
14. In support of his contentions, he relies upon the following judgment:
1. Puttegowda@ Ajjegowda vs Ramegowda3 3 ILR 1996 KAR 465 15. This being second appeal on the question of fact, the First Appellate Court is the last Court, more so when there are concurrent findings of the Courts below. The Hon’ble Supreme Court in Gurnam Singh v. Lehna Singh4 [Civil Appeal No.6567/2014 DD 13.03.2019] relying upon the earlier judgment of the Supreme Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar5 in para 26 of the judgment held as follows:
“26. .......As per law laid down by this Court in a catena of decisions, the jurisdiction of High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of ‘a substantial question of law’ is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in case of Kondiba Dagadu Kadam (Supra), 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 4 2019 SCC Online SC 374 5 (1999) 3 SCC 722 (ii) Contrary to the law as pronounced by the Apex Court; or (iii) Based on inadmissible evidence or no evidence.”
(emphasis supplied) 16. In the light of the above judgment, this Court has to see whether the impugned judgments and decrees of the Courts below are contrary to the mandatory provisions of applicable law, contrary to the law as pronounced by Apex Court or based on inadmissible evidence or no evidence.
17. The contention of the appellants’ Counsel is that the judgments of the Courts below run contrary to the ratio laid down in Anathula Sudhakar’s case referred to supra. He relied on paras 13.3 and 14 of the said judgment to contend that when the plaintiff’s title to the property is in dispute or under a cloud or where the defendant asserts title of the properties to himself, the plaintiffs have to bring the suit for declaration of title. In para 14 of the said judgment, it was held that seeking declaration is necessary only if the denial of title by the defendant or challenge to the plaintiff’s title raises a cloud on the title of the plaintiff to the property.
18. Whether this judgment is applicable to the facts of the case is the question. One distinguishing factor here is that the defendant also admits that all the suit schedule properties were the properties of father of Nanjamma and plaintiff No.1 and they devolved on them by succession. Admittedly, there was no partition between plaintiff No.1 and Nanjamma in those properties. Therefore, even in the absence of the Will, plaintiff No.1 had an interest in the properties as co-owner. Therefore, it cannot be said that mere questioning of the Will by the defendant raises cloud on the title of the plaintiffs more particularly, plaintiff No.1.
19. Since the defendant questioned the will, incidentally, the Courts below discussed on the proof of the Will. This Court in Puttegowda@ Ajjegowda’s case referred to supra has held that bare perusal of the scheme of the Specific Relief Act, particularly of the provisions contained in Chapter VI and Chapter VII per se reveal the cases where the relief for injunction or claim for injunction can be maintained and can be granted. It was held that merely because the defendant challenges the title, the plaintiffs need not bring the suit for declaration of title and they can maintain the suit for permanent injunction.
20. Further, DW.1 in his cross-examination unequivocally admitted that the suit properties were cultivated by the plaintiffs and they were eking out their livelihood from those properties. He further admitted that he was residing in one of the portion of the house and the plaintiffs were residing in other portion of the same house. He also admitted that his mother Nanjamma and plaintiffs were residing together during her life time. He further admitted that Nanjamma and plaintiff No.1 were on cordial terms and he has not taken any steps for cancellation of the Will. It is also to be noted that even in the event of Nanjamma dying intestate, plaintiff No.1 was entitled to half share in the properties.
21. Under the facts and circumstances, the judgments relied upon by the learned Counsel for the appellants regarding maintainability of the suit for bare injunction are not applicable. The possession of the plaintiffs was proved by admission of defendant himself and record of rights Ex.P3 to Ex.P9 right from the year 1985 to 1993. Therefore, it cannot be said that the judgments of the Courts below suffer any perversity. The case of the appellant-defendant is not covered under any of the three factors prescribed in Gurnam Singh’s case.
22. The Courts below were justified in granting the relief of permanent injunction in favour of the plaintiffs incidentally considering the reliability of Will Ex.P1 along with other evidence. Substantial questions of law formulated are answered accordingly. The appeal is dismissed.
Sd/- JUDGE KSR