SRI KARIYAPPA CHIKKAIADANNA v. SRI JAGADISH

2. SRI. MUNIYAPPA S/O LATE RANGAPPA AGED ABOUT 66 YEARS R/O BYRAVESHWARA NITAYA BIDAD READ HAROHALLI VILLAGE AND HOBLI, KANAKAPURA TLAUK RAMANAGARA DISTRICT - 562 117.

3. SMT. VIJAYALAKSHMI W/O T.M. VENKATESH AGED ABOUT 51 YEARS R/O MOODALAPALYA VILLAGE SOLOUR HOBLI MAGADI TALUK RAMANAGARA DISTRICT. …RESPONDENTS (BY SRI. NATARAJ BABA K.,ADVOCATE FOR C/R2 AND R3) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 20.01.2024 PASSED IN RA NO.5150/2019 ON THE FILE OF THE II ADDITIONAL DISTRICT, AND SESSIONS JUDGE, RAMANAGARA, TO SIT AT KANAKAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.04.2017 PASSED IN OS NO.286/2008 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, KANAKAPURA. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2024:KHC:36086 RSA No. 682 of 2024 CORAM: HON'BLE MR JUSTICE E.S.INDIRESH ORAL JUDGMENT This Regular Second Appeal is filed by the plaintiff challenging the Judgment and decree dated 20.01.2024 in R.A. No.5150/2019 on the file of the II Additional District and Sessions Judge, Ramanagara [sitting at Kanakapura] dismissing the appeal and confirming the Judgment and decree dated 01.04.2017 in O.S. No.286/2008 on the file of the II Additional Civil Judge and JMFC at Kanakapura dismissing the suit of the plaintiff.

2. For the sake of convenience, the parties are referred to as they are referred to before the trial Court.

3. It is the case of the plaintiff that the plaintiff is the owner in possession of the suit schedule properties having purchased the same as per the registered sale deed dated 20.12.2007 and the plaintiff is in possession of the suit schedule properties and as such it is averred in - 4 - NC: 2024:KHC:36086 RSA No. 682 of 2024 the plaint that, the defendants without any right over the suit schedule properties, are interfering with the suit schedule properties and as such the plaintiff has filed the suit in O.S. No.286/2008 seeking the relief of permanent injunction restraining the defendants from interfering with the suit schedule properties.

4. On service of notice, the Defendant No.1 remained absent and was placed ex parte. The Defendant No.2 and Defendant No.3 entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of the Defendant Nos.2 and 3 that the plaintiff is not the owner of the suit schedule properties and it is further stated in the written statement that the wife of the Defendant No.2-Mangamma is in possession of the suit schedule properties and accordingly sought for dismissal of the suit. - 5 - NC: 2024:KHC:36086 RSA No. 682 of 2024

5. On the basis of the pleadings on record, the trial Court has framed the issues for its consideration.

6. In order to establish the case the plaintiff has examined two witnesses as PW.1 and PW.2 and produced 28 documents and the same are marked as Exs.P.1 to P.28. On the other hand, defendant Nos.2 and 3 have examined three witnesses as DW.1 to DW.3 and got marked 69 documents as Exs.D.1 to D.69.

7. The trial Court after considering the material on record by its judgment and decree dated 01.04.2017 dismissed the suit. Being aggrieved by the same, the plaintiff has preferred the appeal in RA No.5150/2019 before the First Appellate Court and the said appeal was resisted by the defendants. The First Appellate Court, after considering the material on record, by the judgment and decree dated 20.01.2024 dismissed the appeal. Being aggrieved by the same, the plaintiff has preferred this Regular Second Appeal. - 6 - NC: 2024:KHC:36086 RSA No. 682 of 2024

8. I have heard Sri Chandan B K, the learned counsel for the appellant and Sri Nataraj Baba K, the learned counsel for respondent Nos.2 and 3.

9. Learned counsel appearing for the appellant submitted that both the Courts below have not considered the documents produced by the plaintiff, particularly, referring to the sale deed dated 20.12.2007 [Ex.P1] and contended that the issue in the suit is relating to the boundary dispute between the parties and the said aspect has not been properly appreciated by both the Courts below and as such sought for interference of this Court.

10. Per contra, the learned counsel appearing for the respondent Nos.2 and 3 invited the attention of this Court to the averments made in the written statement filed by the defendant Nos.2 and 3 and submitted that the wife of Defendant No.2 is in possession of the suit schedule properties and as such the defendants have - 7 - NC: 2024:KHC:36086 RSA No. 682 of 2024 denied ownership of the plaintiff in the suit schedule properties and in that view of the matter, both the Courts below after considering the material on record, rightly dismissed the suit and the Appellate Court after considering the finding of facts, rightly confirmed appeal.

11. I have heard the learned counsels for the parties and perused the records.

12. It is the case of the plaintiff that he has purchased the suit schedule properties as per the registered sale deed dated 20.12.2007 [Ex.P1]. On the other hand, the defendants have taken a plea in the written statement denying the title of the plaintiff and further stated that the wife of Defendant No.2 is in possession and enjoyment of the suit schedule properties bearing Municipal Khata No.7076/6504 measuring 60 feet x 40 feet and the Defendant No.3 is in possession and enjoyment of the property bearing Municipal Khata - 8 - NC: 2024:KHC:36086 RSA No. 682 of 2024 enjoyment of the property bearing Municipal Khata No.7076[A]/6564A/5654B measuring 60 feet x 40 feet and the same was purchased by them as per separate registered sale deed dated 03.12.1990 from father of the Defendant No.1-Chaluvaiah. In that view of the matter, as the suit schedule properties are vacant sites and it is not in dispute that the original owner of the suit schedule properties was father of the Defendant No.1 and as the Defendant Nos.2 and 3 claim title through father of the Defendant No.1-Chaluvaiah, I am of the view that the trial Court, after appreciating the material on record, rightly dismissed the suit.

13. It is also well established principle in law in the case of 'Anathula Sudhakar v. P. Buchi Reddy [Dead] by LRs and Others' reported in AIR 2008 SC 2033 wherein it is held that when the title to the property is in question in bare injunction suit, it is the duty of the plaintiff to convert the relief sought for in the suit for - 9 - NC: 2024:KHC:36086 RSA No. 682 of 2024 seeking relief of declaration. In that view of the matter, both the Courts below, after appreciating the material on record, rightly dismissed the suit which does not call for interference in this appeal as there is no perversity in the Judgment and decree passed by the Courts below.

14. Accordingly, the appeal is dismissed at the stage of admission as the appellant has not made out case for formation of substantial question of law as required under Section 100 of CPC. SD/- (E.S.INDIRESH) JUDGE AN/-