The High Court
Case Details
- 1 - NC: 2025:KHC:11817 RSA No. 2518 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 2518 OF 2018 (INJ) BETWEEN: 1. SANNALAKAMMA W/O GOVINDAPPA AGED ABOUT 71 YEARS R/AT BRAMHADEVARAHALLI MEDIGESHI, MADHUGIRI TALUK-572 132. …APPELLANT (BY SRI. SAGAR .B.B, ADVOCATE) AND: 1. K. NAGARAJU S/O GIRIYAPPA AGED ABOUT 50 YEARS R/O BRAMHADEVARAHALLI MEDIGESHI, MADHUGIRI TALUK NOW R/O ARASAMUDRA MADAKASIRA MANDAL MADAKASIRA TALUK ANANTHAPURA DISTRICT-515 301. 2. VENKATARAVANAPPA S/O DODDATHIMAPPA AGED ABOUT 52 YEARS R/AT BRAMHADEVARAHALLI MEDIGESHI, MADHUGIRI TALUK-572 132. THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 26.09.2018 …RESPONDENTS
Legal Reasoning
Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:11817 RSA No. 2518 of 2018 PASSED IN RA.NO.21/2012 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MADHUGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.02.2012 PASSED IN O.S.NO.282/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE MADHUGIRI. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 26.09.2018, passed in R.A.No.21/2012 by the Additional Senior Civil Judge and JMFC, Madhugiri, and the judgment and decree dated 01.02.2012 passed in O.S.No.282/2008 by the learned Principal Civil Judge, Madhugiri. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was defendant No.2; respondent No.1 was the plaintiff, and respondent No.2 was defendant No.1. - 3 - NC: 2025:KHC:11817 RSA No. 2518 of 2018 3. The brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for perpetual injunction. It is the case of the plaintiff that the suit land was originally belonged to one Giriyappa, the plaintiff’s father. The said Giriyappa, during his lifetime, mortgaged the property to one Karethimmaiah, the grandfather of defendant No.1, under a registered mortgage deed dated 25.03.1964 for a sum of Rs.1,000/-. It is contended that the loan availed by the plaintiff’s father was never discharged, but no redemption deed was obtained at that time. It is contended that there was no disturbance to the plaintiff’s father’s possession and enjoyment of the suit schedule property from the defendants’ side. After the death of Karethimmanna, father of defendant No.1, Doddathimmappa has also not questioned about the possession of the plaintiff’s father. Defendant No.2 is the sister-in-law of defendant No.1. After the death of Karethimmanna and his son - 4 - NC: 2025:KHC:11817 RSA No. 2518 of 2018 Doddathimmappa, the defendants, without any manner of right, title, interest or possession over the suit schedule property, are unnecessarily interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property. Hence, prays to decree the suit. 3.1. Defendants appeared through the counsel. Defendant No.2 did not file a written statement despite granting sufficient opportunity. Defendant No.1 filed a written statement admitting that the suit schedule property is the ancestral property of the plaintiff and deceased plaintiff’s father Giriyappa, and he mortgaged the same in favour of the grandfather of defendant No.1, Karethimmanna for Rs.1,000/- on 25.03.1964. It is denied that the plaintiff’s father was in possession and enjoyment
Legal Reasoning
of the suit schedule property. It is contended that neither the plaintiff nor his ancestors were in possession and enjoyment of the suit schedule property. Further, it is specifically averred that Giriyappa was not capable for repaying mortgage amount, hence, he delivered the - 5 - NC: 2025:KHC:11817 RSA No. 2518 of 2018 possession of suit land in favour of defendant No.1’s grandfather and since that date Karethimmanna was in possession and enjoyment of the same, till his death. It is contended that there is no cause of action to file the suit and the suit for bare injunction is not maintainable. Hence, prays to dismiss the suit. 3.2. The Trial Court, based on the above-said pleadings, framed the relevant issues. 3.3. The plaintiff to substantiate his case, examined himself as PW-1, examined two witnesses as PWs.2 and 3, and marked 5 documents as Exs.P1 to 5. On the other hand, defendant No.1 was examined as DW.1, examined two witnesses as DWs.2 to 3, and marked 6 documents as Exs.D1 to 6. The trial Court, on the assessment of verbal and documentary evidence of the parties, decreed the suit of the plaintiff vide judgment dated 01.02.2012 and a decree for the permanent injunction was granted restraining the defendants, their agents, workers and others from interfering with the plaintiff’s peaceful - 6 - NC: 2025:KHC:11817 RSA No. 2518 of 2018 possession and enjoyment of the suit schedule property in any mode or manner without following due process of law. 3.4. Defendant No.2, aggrieved by the judgment and decree passed in O.S.No.282/2008, preferred an appeal in R.A.No.21/2012 on the file of Additional Senior Civil Judge and JMFC, Madhugiri. 3.5. The First Appellate Court, on reassessment of the verbal and the documentary evidence, dismissed the appeal vide judgment dated 26.09.2018. Defendant No.2, aggrieved by the impugned judgments, filed this regular second appeal. 4. Heard the arguments of the learned counsel for defendant No.2. 5. Learned counsel for defendant No.2 submits that defendant No.2 appeared through the counsel but did not file a written statement. He also submits that the evidence of PWs.2 and 3 are hear say evidence, and their evidence is inadmissible in evidence. He submits that both - 7 - NC: 2025:KHC:11817 RSA No. 2518 of 2018 Courts below have committed an error in passing the impugned judgments. Hence, on these grounds, prays to allow the appeal. 6. Perused the records and considered the submissions of the learned counsel for defendant No.2. 7. To substantiate his case, the plaintiff examined himself as PW.1 and reiterated the plaint averments in the examination-in-chief and, to prove his possession over the suit schedule property, marked the documents at Exs.P1 to 5. Further, the defense of the defendants is that the plaintiff is not in possession of the suit schedule property. On the other hand, the defendants examined three witnesses, and DW.3 admitted that the plaintiff was in possession of the suit schedule property. In a suit for perpetual injunction, the Court is required to consider whether the plaintiff is in possession of the suit schedule property as on the date of the institution of the suit and alleged interference. Admittedly, in the instant case, DW.3 admitted regarding the possession of the plaintiff - 8 - NC: 2025:KHC:11817 RSA No. 2518 of 2018 over the suit schedule property. Though defendant No.2 appeared through the counsel, did not choose to file a written statement and did not cross-examine the plaintiff’s witnesses, despite sufficient opportunity by the trial court, defendant No.2 did not avail the opportunity granted by the trial Court. 8. The trial Court, considering the admission of DW.3 and documents produced by the plaintiff, i.e., Exs.P1 to 5 has rightly held that the plaintiff is in possession and enjoyment of the suit schedule property. The defendants are interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property and rightly decreed the suit of the plaintiff. The First Appellate Court, on reassessment of verbal and documentary evidence, rightly dismissed the appeal and confirmed the judgment and decree passed by the trial Court. Hence, I do not find any error in the impugned judgments or any substantial question of law that arise for consideration in this appeal. - 9 - NC: 2025:KHC:11817 RSA No. 2518 of 2018 9. Accordingly, I proceed to pass the following:
Decision
ORDER i. The appeal is dismissed; ii. The judgments and decrees passed by the Courts below are hereby confirmed. No order as to the costs. SD/- (ASHOK S. KINAGI) JUDGE sks