The High Court
Case Details
- 1 - NC: 2025:KHC:9839 RSA No. 645 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 645 OF 2016 (INJ) BETWEEN: 1. SMT. HANUMAMMA W/O LATE VENKATARAMANASHETTY, AGED ABOUT 80 YEARS. SINCE DEAD BY HIS LRS 1(A). SRI. RAMASHETTY D.V., S/O. LATE VENKATARAMANASHETTY, R/AT DEVAGONDANAHALLI VILLAGE, LAKYA HOBLI, CHIKKAMAGALURU TALUK. (BY SRI. A MADHUSUDHANA RAO, ADVOCATE) AND: SRI. BEEREGOWDA S/O PUTTEGOWDA, AGED ABOUT 63 YEARS, AGRICULTURIST, R/AT DEVAGONDANAHALLI VILLAGE, LAKYA HOBLI, CHIKKAMAGALURU TALUK. Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA …APPELLANT (BY SRI. S.N. SAMEER, ADVOCATE) …RESPONDENT - 2 - NC: 2025:KHC:9839 RSA No. 645 of 2016 THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 20.01.2016 PASSED IN RA NO.50/2015 ON THE FILE OF THE 2ND ADDL. SENIOR CIVIL JUDGE, CHIKKAMAGALURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 12.03.2015 PASSED IN OS NO.135/2010 ON THE FILE OF THE 3RD ADDL. CIVIL JUDGE AND JMFC., CHIKMAGALUR. THIS APPEAL, COMING ON FOR FINAL HEARING, 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 20.01.2016, passed in R.A.No.50/2015 by the learned II Additional Senior Civil Judge, Chikmagalur.
Legal Reasoning
2. Brief facts, leading rise to the filing of this appeal are as follows: - 3 - NC: 2025:KHC:9839 RSA No. 645 of 2016 For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was the plaintiff, and the respondent was the defendant. 3. The plaintiff filed a suit against the defendant for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment over the suit schedule property. It is the case of the plaintiff that, the plaintiff is the absolute owner, and possession of the suit schedule property, and the plaintiff's husband had purchased the suit schedule property under a registered sale deed dated 07.02.1986 and based on the registered sale deed the name of the plaintiff's husband was entered in the revenue records. After the death of the plaintiff's husband, all the revenue records stand in the plaintiff's name. The plaintiff is paying land revenue of the suit schedule property. It is contended that the defendant tried to tresspass and to interfere with the peaceful possession and enjoyment over the suit schedule property. Hence, a cause of action arises for the plaintiff to file a suit - 4 - NC: 2025:KHC:9839 RSA No. 645 of 2016 for perpetual injunction. Accordingly, prays to decree the suit. 4. The defendant filed a written statement, admitting the ownership of the plaintiff over the suit schedule property, and it is contended that the plaintiff's husband agreed to sell the suit schedule property on 07.02.1986, and in part performance of the contract, the plaintiff's husband delivered the possession of half portion of the suit schedule property in favour of the defendant. The defendant is in possession of half portion of the suit schedule property in part performance of the contract. It is stated that, the plaintiff is not in possession of the entire suit schedule property. The suit filed by the plaintiff is not maintainable. Hence, prays to dismiss the suit. 5. The trial Court, based on the pleadings of the parties, framed the following issues. 1.Whether plaintiff proves that she is the absolute owner in possession and enjoyment of the suit schedule property? 2. Whether the plaintiff proves that the alleged interference from the defendant? - 5 - NC: 2025:KHC:9839 RSA No. 645 of 2016 3.Whether the plaintiff is entitled for the relief as claimed in the plaint? 4.What order or decree? 6. The plaintiff, to substantiate her case, examined her Power of attorney holder i.e, her son as PW1, and marked 13 documents as Ex.P1 to Ex.P13. On the other hand, the defendant was examined as DW1, examined 5 witnesses as DW2 to DW6, and marked 8 documents as Ex.D1 to Ex.D8. The trial Court, after recording the evidence, hearing on both sides, and on the assessment of oral and documentary evidence, answered issue Nos.1 to 3 in the affirmative and issue No.4 as per the final order. The suit of the plaintiff was decreed vide judgment dated 12.03.2015. It is directed, the defendant, his agents and servants are permanently restrained from interfering with the peaceful possession and cultivation of the suit schedule property. 7. The defendant, aggrieved by the judgment and decree passed in O.S.No.135/2010 filed an appeal in R.A.No.50/2015 on the file of learned II Additional Senior - 6 - NC: 2025:KHC:9839 RSA No. 645 of 2016 Civil Judge, Chikmagalur. The appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration. 1. Whether the appellant has made out sufficient grounds to come to the conclusion that he had sufficient cause for not preferring appeal within prescribed period of limitation? 2. Whether the impugned judgment and decree passed by the trial court dated 12.03.2015 in O.S.No.135/2010 is against to law, facts, evidence on record and probabilities of the case and whether it calls for interference by this court? 3. What order or decree? 8. The appellate Court, on re-assessment of oral and documentary evidence, answered point Nos.1 and 2 in the affirmative, and point No.3 as per the final order. The appellate Court allowed the appeal, and set aside the judgment and decree dated 12.03.2015 passed by the trial Court. The plaintiff, aggrieved by the judgment and decree passed in R.A.No.50/2015, filed this Regular Second Appeal. - 7 - NC: 2025:KHC:9839 RSA No. 645 of 2016
Legal Reasoning
9. Heard the arguments of the learned counsel for the plaintiff, and defendant. 10. Learned counsel for the plaintiff submits that admittedly, the plaintiff is the owner of the suit schedule property, the plaintiff's husband had purchased the suit schedule property under a registered sale deed. Based on the registered sale deed, the name of the plaintiff's husband appears in the revenue records. He submits that the plaintiff's husband never agreed to sell the suit schedule property in favour of the defendant at any point of time, and he never delivered the possession of the suit schedule property. He further submits that, revenue records stand in the name of the plaintiff. There is a presumption regarding the entries under Section 133 of the Karnataka Land Revenue Act. The trial Court, drawing the presumption under Section 133 of the Karnataka Land Revenue Act, has recorded its finding that, the plaintiff is in possession and enjoyment of the suit schedule property. He submits that, the First Appellate Court relying on the report submitted by the police sub-inspector, has recorded - 8 - NC: 2025:KHC:9839 RSA No. 645 of 2016 its finding that the defendant is in possession of the suit schedule property. He further submits that the author of the report was not examined by the defendant. He further submits that the mere marking of documents does not dispense a truth. He also submits that, the said report is unmarked, and the appellate Court placed the reliance on the unmarked documents. He submits that the defendant has filed the suit for specific performance of a contract in O.S.No.88/2012, which is pending consideration. Hence, he submits that the First Appellate Court has committed an error in relying on the report of the police sub inspector, and passed the impugned judgment. Hence, on these grounds, he prays to allow the appeal. 11. Per contra, learned counsel for the defendant submits that the plaintiff's husband agreed to sell the suit schedule property for a valuable consideration, and the defendant has paid the entire consideration amount. In part performance of the contract, the husband of the plaintiff delivered the possession of the half portion of the suit schedule property. The defendant is in possession of a - 9 - NC: 2025:KHC:9839 RSA No. 645 of 2016 portion of the suit schedule property in part performance of a contract. He submits that the defendant has filed the suit in O.S.No.88/2012, which is pending consideration. He submits that the defendant to establish, his possession over the suit schedule property, examined adjacent owners as DW3 and DW4. The appellate Court, considering the evidence of DW3 and DW4, has rightly passed the impugned judgment. The impugned judgment passed by the first appellate Court is just, and proper, and does not call for any interference. Hence, on these grounds, he prays to dismiss the appeal. 12. This Court has admitted the appeal, to consider the following substantial questions of law. (1) Whether the First Appellate Court is right in law in allowing the appeal filed by the respondent ignoring the statutory presumption available under Section 133 of the Karnataka Land Revenue Act? (ii) Whether the First Appellate Court is right in law in reversing the judgment and decree of the trial Court only basing on the oral and interested testimony of the respondent and - 10 - NC: 2025:KHC:9839 RSA No. 645 of 2016 his witnesses, contradictions respondent? in ignoring the the material the evidence of (iii) Whether the First Appellate Court is right in law in relying on the subsequent and belated suits for injunction and specific performance, which are initiated only as an after thought? filed by the respondent Substantial Question of Law Nos.1 to 3 13. Substantial questions of law Nos.1 to 3 are interlinked together, and they are taken for common discussion to avoid the repetition of facts. 14. The plaintiff to substantiate her case, the plaintiff examined through her power of attorney as PW1. He reiterated the plaint averments in his examination-in- chief. He deposed that the plaintiff is the absolute owner of the suit schedule property. The plaintiff's husband had purchased the suit schedule property under a registered sale deed. Based on the registered sale deed, the name of the plaintiff's husband was entered in the revenue records and after the death of the plaintiff's husband, the plaintiff's - 11 - NC: 2025:KHC:9839 RSA No. 645 of 2016 name was mutated to the said property and the plaintiff is paying land revenue. The plaintiff is in possession and enjoyment of suit schedule property. The defendant has no right, title or interest over the suit schedule property, and started interfering with the peaceful possession, and enjoyment of the suit schedule property. The plaintiff requested the defendant not to interfere, but the defendant did not oblige the request made by the plaintiff. Hence, a cause of action arises for the plaintiff to file the suit for permanent injunction. 15. The plaintiff, to prove that she is the absolute owner and in possession of the suit schedule property, has produced the documents. Ex.P1 is the GPA, wherein the plaintiff has executed General Power of Attorney authorizing the PW1 to depose on behalf of the plaintiff. Ex.P2 is the RTC extract of suit land, which stands in the name of the plaintiff. Ex.P3 is the mutation extract which discloses that, the husband of the plaintiff had purchased the suit schedule property under a registered sale deed, and after - 12 - NC: 2025:KHC:9839 RSA No. 645 of 2016 his demise, the property was transferred in the name of the plaintiff as per Ex.P3. Ex.P4 is the assessment extract of the suit schedule property. Ex.P5 is the mutation shara, which discloses that the said property was mutated in plaintiff's name. Ex.P6 is the RTC extract of suit schedule property, which stands in the name of the plaintiff. Ex.P7 is the records of right, which discloses that the plaintiff's husband's vendor name is shown as the owner of the suit schedule property. Ex.P8 is the index of land which stands in the name of the vendor of the plaintiff's husband. Ex.P9 is the original registered sale deed executed by the vendor in favour of the plaintiff's husband regarding the suit schedule property. Ex.P10 is the acknowledgment. Ex.P11 is the communication issued by the Canara Bank to the plaintiff on 20.04.2010, which discloses that - 13 - NC: 2025:KHC:9839 RSA No. 645 of 2016 the plaintiff had obtained a loan from Canara Bank and hypothecated in the suit land and other lands. Ex.P12 is the tax-paid receipts. Ex.P13 is the grant certificate issued by the village accountant. 16. In the course of cross-examination, it was suggested to PW1 that the plaintiff's husband agreed to sell the suit schedule property for a valuable consideration and in part performance of the contract, the portion of the land was delivered to the defendant and in part performance of a contract the defendant is in possession of portion of the suit land. PW1 denied the said suggestion. 17. On the other hand, the defendant examined himself as DW1. He reiterated the written statement averments in the examination-in-chief. In support of his defence, he has produced the Ex.D1, which is an agreement of sale alleged to have been executed by the husband of the plaintiff in favour of the defendant. - 14 - NC: 2025:KHC:9839 RSA No. 645 of 2016 Ex.D2 is the certified copy of the FIR, which discloses that the plaintiff had lodged the complaint against the defendant. Ex.D3 is the certified copy of the charge sheet, which discloses that the police, after investigation, have filed the charge sheet against the defendant. Ex.D4 is the certified copy of the order sheet in O.S.No.138/2012, which discloses that the defendant has filed the suit against Medappa and others for the relief of permanent injunction and the said suit is pending consideration. Ex.D5 is the certified copy of the plaint in O.S.No.138/2012. Ex.D6 is the certified copy of the order sheet in O.S.No.88/2012. The defendant has filed the suit for specific performance of contract in O.S.No.88/2012. Ex.D7 is the certified copy of the plaint filed in O.S.No.88/12. Ex.D8 is the certified copy of the written statement filed in O.S.No.88/12. - 15 - NC: 2025:KHC:9839 RSA No. 645 of 2016 18. The defendant, to prove the execution of the sale agreement, also examined attesting witnesses as DW2, DW5 and DW6 and also examined adjacent land owners as DW Nos.3 and 4 who have deposed that, the defendant is in possession of the portion of the suit schedule property. 19. From the perusal of the entire evidence on record, it is admitted that the plaintiff's husband had purchased the suit schedule property under a registered sale deed as per Ex.P9. Based on Ex.P9, revenue records were transferred in the name of the plaintiff's husband. The plaintiff's husband died, leaving behind the plaintiff. 20. After his demise, property was transferred in the plaintiff's name as per Ex.P3 and Ex.P5. 21. The plaintiff has produced an RTC extract and record of right, which is marked at Ex.P6 and Ex.P7, which discloses that the plaintiff is in possession of the suit schedule property. It is case of the defendant that the plaintiff's husband agreed to sell the suit schedule property and executed the sale agreement as per Ex.D1 - 16 - NC: 2025:KHC:9839 RSA No. 645 of 2016 and the defendant paid entire consideration amount, and the plaintiff's husband delivered the portion of the suit schedule property in part performance of the contract. The defendant has filed a suit in O.S.No.88/2012, which is pending consideration. Whether the plaintiff's husband agreed to sell the suit schedule property is the subject matter in O.S.No.138/2012. 22. Admittedly, the suit is one for a permanent injunction. The Court must consider, whether the plaintiff is in possession of the suit schedule property as on the date of institution of the suit and alleged interference. Admittedly, Ex.P6 is the RTC extract, which discloses that the plaintiff is in possession of suit schedule property as per Section 133 of the Karnataka Land Revenue Act. There is a presumption regarding the entries in the record of rights. 23. The trial Court, drawing the presumption under Section 133 of the Karnataka Land Revenue Act 1964, has rightly held that the plaintiff is in possession of the suit schedule property. - 17 - NC: 2025:KHC:9839 RSA No. 645 of 2016 24. The First Appellate Court relied upon the report of the police sub-inspector, and recorded its finding that the defendant is in possession of the suit schedule property. Admittedly, the said report is not marked, and further, the defendant has also not examined the author of the report. The appellate Court, without considering Section 133 of the Karnataka Land Revenue Act, has passed the impugned judgment. 25. The appellate Court ignored the statutory presumption available under Section 133 of the Karnataka Land Revenue Act, and further, the appellate Court failed to consider that the defendant had already filed the suit for specific performance of a contract. The suit in O.S.No.88/2012, and O.S.No.138/2012 are filed subsequent to the filing of this suit. The appellate Court did not consider the said aspect and committed an error in passing the impugned judgment.
Decision
26. In view of the above discussions, I answer; Substantial question of law Nos.1 to 3 in the negative. - 18 - NC: 2025:KHC:9839 RSA No. 645 of 2016 27. Accordingly, I proceed to pass the following order ORDER The Appeal is allowed. The Judgment and decree passed in 1. 2. R.A.No.50/2015 dated 20.01.2016 passed by the II Additional Senior Civil Judge, Chikmagalur is set aside. 3. The Judgment and decree dated 12.03.2015 passed in O.S.No.135/2010 by the III Additional Civil Judge and JMFC, Chikmagalur is restored. 4. No order as to the costs. Sd/- (ASHOK S.KINAGI) JUDGE RCK List No.: 1 Sl No.: 4 CT:SNN