IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI Regular Second Appeal No.2839 of 2010 BETWEEN:
SRI SHIVANNEGOWDA AGED 48 YEARS S/O LATE BHARATH BHUSHAN R/AT MANDIGANAHALLY VILLAGE, HOSAGRARA HOBLI, K R NAGAR TQ, MYSURU DISTRICT- 571 602.
(BY SRI. B S NAGARAJ, ADVOCATE) AND:
1. SMT LAXMAMMA, DEAD BY HER LRS 1(a) SMT DEVEERAMMA DEAD BY HER LRS, 1(a)(i) SRI MAHADEVA S/O LATE JAVEREGOWDA AGED ABOUT 45 YEARS 1(a)(ii) SMT VANAJAKSHI W/O LATEANJEGOWDA AGED ABOUT 35 YEARS 1(a)(iii) MS. KANCHANA ….APPELLANT D/O LATE MAJEGOWDA AGED ABOUT 12 YEARS REPRESENTED BY MOTHER SMT VANAJAKSHI 1(a)(iv) MS ARCHANA D/O LATE MAJEGOWDA AGED ABOUT 12 YEARS REPRESENTED BY MOTHER SMT VANAJAKSHI ALL RESIDING AT SHRAVANAHALLY VILLAGE AKKIHEBBAL HOBLI-571 607 K R PETE TQ, MANDYA DISTRICT.
1(b). SMT SUNANDAMMA AGED ABOUT 32 YEARS W/O SANNEGOWDA R/AT JAINAHALLY VILLAGE, AKKIHEBBAL HOBLI-571 607 K R PETE TQ, MANDYA DISTRICT.
….RESPONDENTS (R1(a-i) & R1(b) – SERVED R1(a-ii) NOTICE HELD SUFFICIENT V/O DT. 23.10.2017 R1(a-iii) & R1(a-iv) NOTICE HELD SUFFICIENT V/O DT. 5.10.2018) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 1.9.2010 PASSED IN R.A.NO. 134 OF 2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., K R NAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.6.2003 PASSED IN O.S. No. 155 OF 1998 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC, K.R. NAGAR.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This is the defendant’s appeal. The defendant aggrieved by the judgment and decree dated 27.6.2003 passed in O.S.No.155/1998 and confirmed in R.A.No.134/2007, this second appeal is filed.
2. The parties are referred to as per the rank of the parties before the trial Court.
3. Brief facts of the case are as follows :
The plaintiff filed a suit O.S.No.155/1998 for the relief of permanent injunction against the defendant or his agents, men not to interfere with the plaintiff’s peaceful possession and enjoyment of the plaint schedule property whatsoever in any manner.
The plaintiff is aged woman and widow with no male issues. The defendant is plaintiff’s husband’s younger brother’s son and both are neighbours living in the same village.
The plaintiff is the absolute owner with peaceful possession and enjoyment in respect of Sy.No.41/1-B measuring 2 acres 1 gunta of dry land situated at Mandiganhally Village, Hosadurga Hobli, K.R.Nagar Taluk. The plaintiff inherited the said property from her husband late Nanjegowda. The suit property was purchased by the plaintiff’s husband-Nanjegowda through registered sale deed dt.18.3.1946 for valuable consideration. The husband of the plaintiff enjoyed the same with peaceful possession as the absolute owner. After the death of plaintiff’s husband, the plaintiff came in possession of the suit property and has been enjoying the same as a owner. The katha is standing in the name of the plaintiff. The defendant has no right, title or interest over the suit property. The defendant is unnecessarily interfering in the possession of the suit land from two months i.e. first week of May,1998. The defendant prevented the plaintiff from ploughing the land. Therefore, the plaintiff claiming that he is the owner of the suit land having right over the land, was forced to lodge a complaint to the police of K.R.Nagar. The police authorities have advised the plaintiff to approach the Civil Court for her grievance. The defendant again interfered with the possession of the suit land in the first week of June. Plaintiff got issued a legal notice dated 9.6.1998 to maintain cordial relationship with the plaintiff. The said notice was served on the defendant on 25.6.1998. The defendant has not replied to the said notice. The defendant is silent over the suit land for 15 days after notice and tress-passed the possession on 18.7.1998, tried to plough the land. When the act of the defendant was questioned by the plaintiff, defendant abused her in unparliamentary words and tried to kill her and due to prevention of the neighbours prevented the ugly act of the defendant and advised the plaintiff to approach the court for injunction. Hence, the plaintiff filed a suit for injunction.
The defendant appeared and filed written statement denying the ownership and possession of the plaintiff over the suit land and contend that the suit schedule property is a joint family property of the plaintiffs husband and defendants father. Very long back the husband of the plaintiff and father of the defendant got divided the plaint schedule property at a oral partition. In the said partition, one acre of the land had fallen to the share of the plaintiff and remaining one acre of land had fallen to the share of the defendant. Immediately after the partition, the plaintiff’s husband and defendant’s father started to enjoy their respective share separately as absolute owners. Thereafter, on 2.7.1977 plaintiff entered into a written agreement with the father of the defendant in order to sell his half portion of property in favour of the defendant’s father for a sum of Rs.600/- and the plaintiff has received the entire sale consideration from the defendant’s father and put the defendant’s father into peaceful possession and enjoyment of the same. Since 2.7.1977 till today the plaintiff has been in actual possession and enjoyment of the same as absolute owner. The defendant and his father is in settled possession and enjoyment of the suit property since 2.7.1977 till today. As such, the defendant is in settlement possession and enjoyment of the schedule property. The defendant has perfected the title even by law and adverse possession from 1981-82 till the filing of the suit. The RTC and other revenue documents were all in the name of defendants father. The plaintiff very recently behind the back of this defendant got it changed in her favour and filed the suit.
On the basis of the pleadings, the trial Court framed two issues :
“1) Whether the Plaintiff proves that she is in lawful possession of the suit property as on the date of suit and prior to the filing of suit?.
2) Whether the Plaintiff further proves that the Defendant tried to interfere with her possession in respect of suit property as alleged in para 7 of the plaint?.”
The plaintiff in support of her case got examined herself as PW1 and 3 witnesses as PWs 2 to 4 and got marked 7 documents i.e. exhibits P1 to P7 and closed her side. The defendant rebutting the evidence of the plaintiff got examined himself as DW1 and 4 witnesses as DWs 2 to 5 and got marked documents exhibits D1 to D8. The trial Court after considering the material on record held issue Nos.1 and 2 in the affirmative and held that the plaintiff is in possession of the suit property as on the date of suit and also prior to the filing of the suit and also further held that the defendant tried to interfere with her possession in respect of the suit property as alleged in paragraph 7 of the plaint and decreed the suit. The defendant aggrieved by the judgment and decree passed in the said suit filed the appeal-R.A.No.134/2007. The Appellate Court has framed the following points for consideration :
“1. Whether the Trial Court was right in holding that the plaintiff has established her possession over the suit schedule property?
2. Whether the judgment and decree passed by the Trial Court calls for interference?
3. What order?”.
The Appellate Court, on re-appreciation of the oral and documentary evidence, affirmed the judgment of the trial court. Hence, the defendant filed the second appeal being aggrieved by the judgment passed by both the courts below.
4. Heard the arguments of the learned counsel for the appellant.
5. The learned counsel for the appellant firstly contends that the suit for bare injunction without seeking further relief of declaration or partition is not maintainable.
Further, he contends that suit for bare injunction is not maintainable against the co-owner and he further contends that the plaintiff cannot file a suit for injunction as the defendant is in possession of the suit property by virtue of oral partition that took place in between the husband of the plaintiff and father of defendant in regard to portion of one acre and as far as remaining one acre is concerned, defendant is in possession of the suit property in part performance of the contract alleged to have been executed by the plaintiff.
6. I have perused the records and also the arguments of the parties.
7. It is not in dispute that the suit property was purchased by the husband of the plaintiff on 18.3.1946, under registered sale deed as per Ex.P2 and also revenue records were standing in the name of the plaintiff’s husband i.e. Form Nos.5 and 6 until the death of plaintiff’s husband and later on, katha was changed in the name of the plaintiff.
8. The defendant in the written statement has clearly admitted in paragraph 12 of the written statement that “Since 2.7.1977 till today plaintiff has been in actual, physical possession and enjoyment of the same as the absolute owner”.
9. When the defendant himself admits that the plaintiff is the owner and is in actual possession of the suit property, the question of seeking relief of declaration of ownership does not arise. But as per Section 58 of the Evidence Act, fact admitted need not be proved.
10. In the present case, the defendant in the written statement has clearly admitted that the plaintiff is the owner of the suit property and even in the cross examination, defendant has clearly admitted that the plaintiff’s husband has purchased the suit property.
11. It is the contention of the defendant that the suit land is a joint family property but in support of his contention, defendant has not placed any material to show that it is the joint family property. So the trial court considering Ex.P2 i.e. the registered sale deed, property purchased by the husband of the plaintiff, held that the plaintiff is the absolute owner of the suit property. Hence, the contention of the plaintiff that the suit for mere injunction without seeking declaration of title or partition cannot be accepted for the reason stated above.
12. The learned counsel for the appellant contends that the suit property is a joint family property and oral partition took place between the plaintiff’s husband and father of the defendant. In the said partition, one acre was fallen to the share of plaintiff’s husband and another one acre had fallen to the share of father of the defendant. The defendant has not placed any material to show that oral partition took place in between husband of the plaintiff and father of defendant.
13. In the course of cross examination, the defendant has clearly admitted that the suit property is purchased by the husband of the plaintiff. He admits that he has not signed on any document pertaining to the oral partition. Further, DW2 in his examination-in- chief, does not depose that he was a witness to the alleged partition. The evidence of DW2 cannot be considered to prove the oral partition alleged to have been taken place in between the husband of the plaintiff and father of the defendant. Hence, as observed above, the suit property is the absolute property of plaintiff’s husband and after his death, plaintiff has succeeded to the suit property. The suit property is not a joint family property. Hence, the suit for injunction in respect of the suit property, which is owned and possessed by plaintiff, is maintainable. As already held above, the suit property is not a joint family property.
14. The arguments of the learned counsel for the appellant that suit for injunction against a co-owner is not maintainable cannot be accepted. As held above, suit property is not a joint family property. It is the property of the plaintiff. Hence, the suit is maintainable.
15. Learned counsel for the appellant submits that the defendant is in possession of the property by virtue of the oral partition and based on agreement of sale i.e. Ex.D1. As held above, the defendant has failed to prove the partition, as alleged in the written statement, and also the plaintiff has denied the execution of Ex.D1. The defendant, in support of his contention, has not examined any attesting witness to Ex.D1 and further he has not filed any suit for specific performance of contract based on Ex.D1.
16. The Court below have held that the defendant has failed to prove the execution of Ex.D1 and also oral partition. The defendant in the written statement has not pleaded when the alleged oral partition took place in between the husband of the plaintiff and father of defendant.
Further, the revenue records stands in the name of the plaintiff and the defendants have not challenged the entries in the name of the plaintiff.
There is a presumption in regard to joint family but there is no presumption in regard to joint family property.
17. Both the courts after considering the material on record, have rightly held that the defendant has failed to prove that it is the joint family property and that he is in possession of the property based on the oral partition as well as on the agreement of sale alleged to have been executed by the plaintiff in favour of the father of the defendant and rightly dismissed the suit. I do not find any substantial question of law involved in the present case.
18. Based on the aforesaid finding of facts, I neither find any ground nor substantial question of law involved in the appeal, as observed above, so as to interfere with the impugned order.
Hence, I proceed to pass the following :
ORDER The appeal is dismissed.
SD/- JUDGE rs