The High Court
Case Details
- 1 - NC: 2025:KHC:14812 RSA No. 1939 of 2010 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 1939 OF 2010 (INJ) BETWEEN: SRI M.S. NATARAJ, AGED ABOUT 54 YEARS, S/O M.P SREEKANTAIAH, R/A NO. 3710, 2ND CROSS, RASTRAPATHI ROAD, NANJANGUDU TOWN. [BY SRI AG SRIDHAR AND SRI T. MUNIRAJU, ADVOCATES] …APPELLANT AND: 1. SMT. S.NAGALAKSHMI, AGED ABOUT 59 YEARS, W/O M.V SUBBAKRISHNA, R/A NO.5225, VENKATADRI BHARATHA VIKASA SCHOOL ROAD, K.H.B COLONY, NANJANAGUDU 2. SRI K.S. MADAPPA. AGED ABOUT 65 YEARS, S/O GURUKAR SREEKANTAPPA, R/OF CHIKKAKANYA VILLAGE, JAYAPURA HOBLI, MYSORE TALUK. 3. SRI D.B. SIDDAVEERAIAH, AGED ABOUT 75 YEARS, S/O BASAPPA,R/A NO.7968, MIG KARNATAKA HOUSING BOARD COLONY, OOTY ROAD, NANJANAGUDU TOWN. [BY SRI NATARAJU B. HALEMANE, ADVOCATE FOR R2 (ABSENT); SRI MANJAPPA KAVALDHAR, ADVOCATE FOR R1 (ABSENT); NOTICE TO R3 - SERVED AND UNREPRESENTED] …RESPONDENTS Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka - 2 - NC: 2025:KHC:14812 RSA No. 1939 of 2010 THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 7.7.2010 PASSED IN R.A.44/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE, NANJANGUD, ALLOWING THE APPEAL AND DISMISSING THE JUDGMENT AND DECREE DATED 20.6.2008 PASSED IN O.S.150/2005 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) & ADDL. JMFC., NANJANGUD. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 11.03.2025, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
Legal Reasoning
16. He also relied on decisions of this Court in S Satish Kumar v. Registrar, City Civil Court, Bangalore (WP no.40684/2017 disposed of on 17.10.2017) and AA Kilachand v. State of Karnataka, reported in ILR 1992 Kar. 2170, wherein it has held: "6. When Section 74 and Section 76 of Evidence Act read with Rule 2 of Criminal Rules of Practice clearly say such documents which are public in nature, when asked for, their true copies or certified copies be given, then it has to be said that approach of the learned Magistrate in the refusing documents as not marked is incorrect. Hence, that portion of the order of the learned Magistrate relating to refusal to issue copies of the documents requested is quashed." issue required copies of to 17. On above grounds, learned counsel sought for answering substantial question of law in favour of appellant and to allow appeal. - 10 - NC: 2025:KHC:14812 RSA No. 1939 of 2010 18. None appears for respondents. 19. Heard learned counsel for appellant, perused impugned judgment and decree and records. 20. This appeal is by plaintiff challenging divergent judgment and decree by first appellate Court in suit for permanent injunction. 21. Appeal was admitted on 26.11.2013 to consider following substantial question of law: "When the Trial Court decreed the suit of appellant for injunction by assigning consistent and cogent reasons, whether the First Appellate Court was justified in reversing the judgment and decree and in doing so, did not assign justifiable reasons to overcome the findings of Trial Court and thereby committed an error and illegality judgment and decree?" impugned the in 22. It is contended plaintiff established title over suit property by producing Ex.P1 – sale deed and possession based on Exs.P2 to P8 – revenue records and photographs apart from admission of DW.1. 23. Though plaintiff’s title is denied, Ex.D2 – sale deed on which defendant was relying on is from same vendor and later than Ex.P1, plaintiff’s sale deed. Therefore, if dispute were - 11 - NC: 2025:KHC:14812 RSA No. 1939 of 2010 to be with regard to same site, then plaintiff’s sale deed would hold good. Admittedly, suit property is vacant site. As held by Hon'ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy, reported in 2008 (4) SCC 594, title would imply possession, trial Court decreed suit, while first appellate Court reversed decree and dismissed suit drawing adverse inference for failure to examine any independent witness to establish possession and relying on Ex.D1 - unapproved layout plan. 24. Since substantial question of law framed is about legality of interference by first appellate Court with findings of trial Court, it would be useful to refer to ratio laid down by Hon'ble Supreme Court in Santosh Hazari v. Purushottam Tiwari, reported in (2001) 3 SCC 179, which reads as under: “15. … … … First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would - 12 - NC: 2025:KHC:14812 RSA No. 1939 of 2010 suffice ordinarily (See Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on is not facts, the appellate court competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with fact. (See Madhusudan Das v. Narayanibai [(1983) 1 SCC 35: AIR 1983 SC 114]) The rule is — and it is nothing more than a rule of practice — that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. Ramdeo (See Sarju Sahu v. Jwaleshwari Pratap Narain Singh [1950 SCC 714: AIR 1951 SC 120]) Secondly, while reversing a finding of fact the appellate court the must come reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need into close quarters with Pershad finding the of - 13 - NC: 2025:KHC:14812 RSA No. 1939 of 2010 only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one.” 25. Thus, unless findings of trial Court suffer from perversity or material irregularity, there would be no justification for interference. 26. While passing impugned judgment, first appellate Court, took note of few undisputed facts:- that both plaintiff and defendant no.1 admit defendant no.2 as original owner of properties purchased by them and defendant no.3 was his GPA holder; that plaintiff purchased site no.99 on 26.04.1990 under Ex.P1 and defendant no.1 purchased site no.100 under Ex.D2 on 25.05.1990 and their sites being vacant. It noted that plaintiff admitted Ex.D1 as layout sketch, therefore, his contention that it was not proper, was untenable. It reinforced - 14 - NC: 2025:KHC:14812 RSA No. 1939 of 2010 said conclusion by drawing adverse inference for failure to produce correct layout sketch, which plaintiff admitted was given to him at time of Ex.P1 - sale deed and failure to elicit error in layout sketch in cross-examination of DW.2. 27. It observes, in schedule of Ex.P1, measurement of site no.99 as East to West 45ft. and North to South 30ft. which would be less than 1400 sq.ft.. Likewise, measurement of site no.100 was East to West 50+22/2 ft. and North to South 40ft. which would confirm to Ex.D1. Thereafter, on comparison of boundaries of suit property in Ex.P1 with Ex.D1 - layout sketch, it noted mention of site no.100 on northern side would not tally with plaintiff's claim. Insofar as site no.100, boundary description properly tallying with Ex.D1. In view of above, it holds plaintiff cannot claim to be in lawful possession of an extent more than measurements of conveyed land based on Ex.P1. 28. It observed, while passing impugned judgment and decree, trial Court was not justified in relying on admission about plaintiff being in possession of site by fencing it, even by encroachment. It concludes, since suit was only for relief of permanent injunction and plaintiff failed to establish lawful - 15 - NC: 2025:KHC:14812 RSA No. 1939 of 2010 possession, it held plaintiff disentitled for relief and dismissed suit. 29. On comparison with records, observations of first appellate Court about total area of site mentioned in Ex.P1- sale deed of plaintiff being more, when calculated by referring to measurement of its sides, which appears justified. Likewise, defendant's site in Ex.D.2, total area mentioned appears less than calculation with reference to measurements of its sides. Thus, documentary evidence would not fully support plaintiff's case. 30. On perusal of oral evidence, it is seen, during cross- examination of PW.1, suggestion that there was road on northern side of plaintiff’s site is denied, which would run contrary to Ex.D1. Though plaintiff states, he found out Ex.D1- layout sketch was incorrect and admits, he had not approached owner for rectification. There are also several admissions, that on two sides of site no.99, there were roads, but, before purchase of site, he did not get it measured and that at time of formation of layout, each site was marked with boundary stones. And though in cross-examination of DW.1, an admission is elicited that plaintiff has fenced his site by - 16 - NC: 2025:KHC:14812 RSA No. 1939 of 2010 including area of his site, but not encroached any portion of defendant's site. Insofar as boundary description and measurement, suggestions were made that to East of plaintiff’s site, there is road and on Western side there is a garden and that site no.100 is towards North of site no.99 are got denied. An admission elicited about measurement of site of defendant no.1 as North – South 51 ft. on one side and 22 ft. on other side and 40 ft. East to West, which would not run contrary to record. 31. From above, it is seen plaintiff is blowing hot and cold in same breath insofar as Ex.D1 - layout sketch. While, in plaint, he states plaintiff’s claim insofar as suit property was vindicated by measurement of sites mentioned in index of layout sketch got marked as Ex.D1 and seeks to denounce said sketch in deposition. Though he claims to have approached defendants no.2 and 3 about layout sketch being erroneous, same is not supported by any material. In view of above, observation of first appellate Court that plaintiff was blowing hot and cold would be justified. Even challenge based on contention that Ex.D1 was incorrect, drawing of adverse - 17 - NC: 2025:KHC:14812 RSA No. 1939 of 2010 inference for failure to furnish correct sketch or eliciting admission about error in Ex.D1 would also be justified. 32. In view of above, exercise of jurisdiction by first appellate Court as a final Court for appreciation of facts would be complaint with principles laid out in Santosh Hazari's case (supra), wherein it is also held, findings of first appellate Court in an appeal under Section 96 of CPC would not be open for interference by this Court under Section 100 of CPC, except on a substantial question of law. Hence, substantial question of law is answered in negative. 33. Consequently, appeal is dismissed. Sd/- (RAVI V HOSMANI) JUDGE PSG,AV,GRD List No.: 1 Sl No.: 60
Arguments
CORAM: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CAV JUDGMENT Challenging judgment and decree dated 07.07.2010 passed by Senior Civil Judge, Nanjangud, in R.A.no.44/2008, this appeal is filed. 2. Brief facts as stated are, appellant was plaintiff filed OS no.150/2005 for permanent injunction restraining defendant no.1, her agents etc. from interfering with plaintiff's peaceful possession and enjoyment of site no.99, measuring East to West 45ft. and North to South 30ft., situated at Devirammanahalli, Nanjangud Taluk, ('suit property' for short). 3. In plaint, it was stated, plaintiff purchased suit property from defendant no.2, under registered sale deed - 3 - NC: 2025:KHC:14812 RSA No. 1939 of 2010 dated 26.04.1990, executed by defendant no.3 - General Power of Attorney ('GPA' for short). Thereafter revenue records were standing in name of plaintiff, he was paying taxes regularly and was in possession. And when plaintiff visited suit property, a week prior to suit, defendant no.1 represented to plaintiff that she had purchased suit property from defendant no.2 under registered sale deed executed by defendant no.3, in 1990. On verification, he found defendant no.1 had purchased site no.100, measuring East to West 40 ft. and North to South 51 + 22/2 ft., from defendant no.2, but with boundary description similar to suit property. 4. It was stated, defendant no.2 got land in Sy.no.20 of Devirammanahalli, converted, prepared layout sketch and sold sites to various persons including plaintiff and defendant no.1, through defendant no.3. In sale deed, though measurements and site numbers were different, boundary description was same as suit property. It was alleged, defendant no.1 was trying to take undue advantage of said discrepancy by interfering with plaintiff’s possession. It was stated, only entries in sketch were exchanged due to oversight, but measurements mentioned in Index were clear. However, defendant no.1 - 4 - NC: 2025:KHC:14812 RSA No. 1939 of 2010 demanded plaintiff to vacate suit property and on 25.08.2005, defendant no.1 came with supporters and threatened to dispossess plaintiff. When defendants no.2 and 3 failed to rectify mistake in layout sketch, and police did not take action, suit was filed. 5. On appearance, defendant no.1 filed written statement and denied plaintiff’s claim in general. It was contended, she was not aware of any sale deed referred in para no.2 of plaint and alleged documents relied by plaintiff were concocted. She admitted, purchase of site no.100 under registered sale deed dated 25.05.1990, from defendant no.2 through GPA - defendant no.3 by paying consideration of Rs.4,000/- and claimed to be in possession. She disputed measurements and boundaries of suit property as mentioned in plaint. It was alleged, plaintiff attempted to interfere with her possession of site no.100 claiming it to be site no.99, therefore she had lodged complaint with police. Police had taken plaintiff to task and advised him not to interfere with site of defendant no.1. Therefore, suit filed was not bonafide and without cause of action. On said assertions, sought dismissal of suit. - 5 - NC: 2025:KHC:14812 RSA No. 1939 of 2010 6. Defendants no.2 and 3 filed separate written statements admitting sale of sites no.99 and 100 to plaintiff and defendant no.1 respectively and undertaking to rectify sale deeds, in case, any mistake had crept therein, but at cost of purchasers. Denying cause of action, sought dismissal of suit. 7. Based on pleadings, trial Court framed following issues: 1. ªÁ¢UÀ¼ÀÄ zÁªÁ ¸ÀéwÛ£À ¸Áé¢üãÀzÀ°èzÁÝgÉ JA§ÄzÀ£ÀÄß gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉÃ? 2. ¥ÀæwªÁ¢UÀ¼ÀÄ ªÁ¢AiÀÄ zÁªÁ ¸ÀéwÛ£À ¸Áé¢üãÀPÉÌ CqÀZÀuÉ ªÁ¢AiÀÄ ªÀiÁqÀÄwÛzÁÝgÉ JA§ÄzÀ£ÀÄß GAlÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ? 3. ªÁ¢UÀ¼ÀÄ zÁªÁ C£ÀĸÀÆa ¸ÀéwÛ£À §UÉÎ zÁªÉAiÀÄ°è PÉÆÃjgÀĪÀAvÉ ±Á±ÀévÀ ¥Àæw§AzsÀPÁeÉÕAiÀÄ£ÀÄß ¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ? 4. AiÀiÁªÀ DzÉñÀ? 8. In support of his case, plaintiff examined himself and another as PWs.1 and 2 and got marked Exhibits P.1 to P9. While husband of defendant no.1 and two others deposed as DWs.1 to 3 and got marked Exhibits D1 to D3. A Court Commissioner, deposed as CW.1 and marked Exs.C1 to C6. 9. On consideration, trial Court answered issues no.1 to 3 in affirmative and issue no.4 by decreeing suit with costs and - 6 - NC: 2025:KHC:14812 RSA No. 1939 of 2010 restraining defendants no.1, her agents etc., from interfering with possession and enjoyment of suit property. 10. Aggrieved defendant no.1 filed RA no.44/2008 on various grounds, based on which following points were framed: 1. «ZÁgÀuÁ £ÁåAiÀiÁ®AiÀĪÀÅ M.J¸ï.150/2005 C£ÀÄß rQæ ªÀiÁqÀ®Ä ¤ÃrgÀĪÀ PÁgÀtUÀ¼ÀÄ £ÁåAiÀÄ ¸ÀªÀÄävÀªÁVzÉAiÉÄÃ? 2. MAzÀÄ ªÉÃ¼É £ÁåAiÀÄ ¸ÀªÀÄävÀªÁUÀzÉà EzÀÝ°è ¸ÀzÀj wæð£À°è ºÀ¸ÀÛPÉëÃ¥À ªÀiÁqÀ¨ÉÃPÁVzÉAiÉÄÃ? 3. F ªÉÄîä£À«AiÀÄ PÉÆ£ÉAiÀÄ DzÉñÀ K£ÀÄ? 11. On consideration, first appellate Court answered point no.1 in negative, point no.2 in affirmative and point no.3 by allowing appeal and set-aside judgment and decree passed by trial Court. Aggrieved thereby, plaintiff preferred this appeal. 12. Sri AG Sridhar learned counsel appearing for Sri T Muniraju, advocate for plaintiff submitted, unsuccessful plaintiff in suit for permanent injunction was challenging divergent judgment and decree passed by first appellate Court. It was submitted, before trial Court, plaintiff relied on Ex.P1 - Sale deed dated 26.04.1990 executed by defendants no.2 and 3 to establish title over suit property. Whereas, defendant no.1 claimed to have purchased site no.100 from defendant no.2 - 7 - NC: 2025:KHC:14812 RSA No. 1939 of 2010 through her GPA - defendant no.3 on 25.05.1990. Thus flow of title over suit property to plaintiff was prior. Apart from Ex.P1, plaintiff relied on Exs.P2 and P3 - Tax paid receipt and Demand Register Extract, Exs.P4 to P8 - Photographs to establish possession, whereas, defendant no.1 merely produced sale deed - Ex.D2 and Assessment Register Extract - Ex.D3. It was submitted, as subsequent purchaser, defendant no.1 would not be justified in disputing measurements and boundaries of suit property. 13. It was submitted, plaintiff deposed as PW.1 as per plaint averments, nothing material was elicited in cross- examination. Likewise, deposition of PW.2 supported plaintiff and sustained cross-examination. PW.2 unequivocally stated about attempt by defendant no.1 interfering with plaintiff’s possession over suit property. On other hand, defendant no.1 failed to enter witness-box without any sufficient cause. It was submitted, in cross-examination of DW.1, an admission was elicited that site was purchased without visiting site and verifying measurements. There was further elicitation of admission that there was no encroachment by plaintiff over his property. - 8 - NC: 2025:KHC:14812 RSA No. 1939 of 2010 14. It was submitted, in view of nature of dispute, Court Commissioner was appointed and deposed about noting plaintiff had fenced his property. In cross-examination of CW.1 - Court Commissioner by plaintiff, it was elicited he had measured properties as per respective title deeds and found plaintiff had fenced his property. Thus, material on record established plaintiff was in possession of suit property. On due appreciation of same, trial Court decreed suit. But, in appeal, first appellate Court without proper re-appreciation reversed findings and dismissed suit. It was submitted, said judgment and decree was unsustainable as reasons assigned i.e., failure to examine independent witness and examined plaintiff’s friend as PW.2 and reliance placed on Ex.D1 - layout sketch, even when it was not approved layout map as well as ignorance of admission by DW.1 that plaintiff was in possession of suit property. 15. In support of submissions, learned counsel relied on decision of this Court in case of J.R.R. Naidu v. Registrar, City Civil Courts, reported in ILR 1992 Kar. 2700, wherein it has held: "3. The trial Court rejected the application on the basis that the documents have not been admitted in evidence and therefore is not entitled to get the documents. The trial Court - 9 - NC: 2025:KHC:14812 RSA No. 1939 of 2010 did not consider the question when the suit itself is based on a particular document whether it forms part of the suit or proceeding, but considered only a latter part of the Rule as to the entitlement of the party to get copy of the document which has been admitted in evidence. If a suit is based on any document and that document forms part of the suit documents and therefore of the record, party is entitled to such a document or not is the question. In that view of the matter, I think the petitioner is right in his submission and it is certainly open to him to get copy of such documents. The trial Court has failed to consider the request of the petitioner and is directed to furnish copies sought for."