IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12th DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO REGULAR SECOND APPEAL No.3177 OF 2006 BETWEEN:
1. RANGAMMA, AGED 59 YEARS, W/O NANJEGOWDA.
2. NAGARAJA, AGED 44 YEARS, S/O NANJEGOWDA.
3. PUTTEGOWDA, AGED 49 YEARS, S/O NANJEGOWDA.
4. SHEENEGOWDA, AGED 49 YEARS, S/O NANJEGOWDA.
5. RAMACHANDRA, AGED 34 YEARS, S/O NANJEGOWDA, ALL ARE RESIDENTS AT BASAVANAHALLI VILLAGE, HARANAHALLI HOBLI, PERIAPATNA TALUK, PIN:571107, MYSORE DISTRICT. ... APPELLANTS (BY SRI T N RAGHUPATHY, ADVOCATE) AND:
1. SRI GANESHA, AGED 56 YEARS, S/O JAVAREGOWDA.
2. SANNATHAYAMMA, W/O VENKATEGOWDA, AGED 59 YEARS.
RAJEGOWDA, S/O THIMMEGOWDA, SINCE DECEASED BY LEGAL REPRESENTATIVES 3. SRI VRUSHABHENDRA, AGED 35 YEARS.
4. SRI SATISH AGED 32 YEARS.
5. SRI B R SRINATH, AGED 21 YEARS.
6. SMT.NINGAJAMMA AGED 50 YEARS.
RESPONDENTS 3 TO 5 ARE CHILDREN AND RESPONDENT -6 IS THE WIFE OF THE LATE RAJEGOWDA.
ALL ARE RESIDENS OF BASAVANAHALLI VILLAGE, HARANAHALLI HOBLI, PERIAPATNA TALUK, PIN – 571 107, MYSORE DISTRICT. ... RESPONDENTS (BY SRI GURURAJ KULKARNI, ADVOCATE FOR R1, R2 TO R6 ARE SERVED BUT UNREPRESENTED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 CPC AGAINST THE JUDGMENT AND DECREE DATED: 9.11.2006 PASSED IN RA.No.34/1996 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), HUNSUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 4.4.1996 PASSED IN OS.No.23/1992 ON THE FILE OF THE MUNSIFF & JMFC, PERIYAPATNA.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT The appeal is directed against the judgment and decree dated 09.11.2006 passed by the learned Civil Judge (Sr. Dn.), Hunsur, in R.A. No.34/1996 wherein the appeal preferred against the judgment and decree in O.S. No.23/1992 by the learned Munsiff and JMFC, Periapatna, came to be confirmed.
2. For the sake of convenience the parties are referred to as per their ranking before the trial court.
3. The suit is filed by the plaintiff for the relief of Permanent Injunction in respect of the schedule property which is claimed to be ancestral property of the plaintiff. He is in possession and enjoyment of the same as absolute owner and further claims interference to the suit schedule property by the defendants. The suit schedule property is a vacant site. The defendants resisted the suit and the second defendant filed the written statement, that was adopted by the other defendants.
4. Defendants denied the averments. Further the facts provided by the defendants is that the boundaries and description given to the suit schedule property are not correct and in fact the plaintiff has no right, title or interest or possession over the schedule property at any point of time. Further it is contended that the sale deed filed by the plaintiff is concocted. It is also contended that the dimension of the schedule property is not properly mentioned and does not corroborate the claim of the plaintiff over the schedule property.
5. The trial Court was accommodated with oral and documentary evidence of both sides. The trial Judge, on the basis of the pleadings and oral and documentary evidence, decreed the suit of the plaintiff. Against which, defendants preferred RA No.34/1996 which came to be dismissed. The said Judgment and decree is challenged by the defendants in this second Appeal.
6. This Court has framed the following substantial questions of law on 05.06.2007.
“ Whether the courts below were justified in holding that the suit schedule property is in the possession of the plaintiff in the absence of document of title, when the defendant has produced the sale deed and the ----- to the said document runs counter to the case of the plaintiff.”
7. Learned counsel for appellant Sri T N Raghupathy would submit that the plaintiff wanted to grab the property of the defendants that measures to an extent of 175 x 65 feet. Learned counsel would further submit that the schedule property claimed by the plaintiff is part and parcel of the said property.
8. Learned counsel for the defendant/appellant would submit that the plaintiff has no right, title, interest or possession over the schedule property. There are no documents to show that the plaintiff is the owner of property as stated in the written statement by the defendants. He would further submit that plaintiff has filed the suit by giving the description only with a view to knock of the property of the defendants.
9. It is observed that the claim of the plaintiff is that he is the owner of a particular property bearing katha No.8 which measures 48 x 26 feet. To support the claim he has filed EX.P1 which is stated to be sale deed.
10. It is a well established principle that possession is the nine points of law. In order to claim protection, invariably the nature of possession must be lawful.
11. The bone of contention between the parties is that plaint schedule property measures 48 x 26 feet and the boundaries are as stated in the plaint.
12. The claim of the plaintiff is, it is bounded on the East by Government road, West by hay roofed house of 6th defendant, North by plaintiff ’s house and on the South by House of Kalamma and others.
The relief claimed is based on EX.P1 and EX.P2. The defendants have filed EX.D11, sale deed, wherein they claims to have purchased the property measuring 175 feet east to west and 65 feet north to south. This is under the registered sale deed dated 18.12.1991.
13. The burden on the plaintiff in a permanent injunction suit is more when compared with the defendants. The property must be identifiable with precisely and substantially by boundaries and serial number of the property must be specific.
14. It is necessary to make a mention that on the north of the plaint schedule property, there is a house of the plaintiff and on the western side, property of the defendant No.6 is mentioned. In the circumstances, in the records produced by the plaintiff no document is forthcoming to identify the schedule property with precision and to reckon the boundaries. Though boundaries are mentioned, the source or the authenticated documents are not produced before the Court.
15. Learned counsel for the plaintiff would submit that the suit schedule property is a different one, no way connected to the measurement and the boundaries claimed by the defendants under EX.D1. When such is the case, plaintiff does not explain that what compelled him to claim this particular schedule property when both the properties are different with all that is set at naught. Plaintiff has not produced documents to claim lawful possession of the suit schedule property. The appellate Court erred in dismissing the appeal and allowed the error committed by the trial Court by decreeing the suit to continue. Error of both the courts are liable to be set right. Accordingly, substantial question of law is answered.
16. In the result, appeal is allowed.
Judgment and Decree dated 09.11.2006 passed in RA No.34/1996 by the Civil Judge (Sr.Dn) Hunsur and Judgment and Decree dated 04.04.1996 passed by learned Munsiff and JMFC, Periapatna O.S.No.23/1992 are set aside. Consequently, Suit of the plaintiff in O.S. No.23/1992 is dismissed.
Sd/- JUDGE ykl