RAMESH Sb APPARAO KULKARNI v. HARIKISHAN Sb GOPI KISHAN MALU

Judgment

1. HARIKISHAN Sb GOPI KISHAN MALU, RIO GULBARGA, SINCE DECEASED BY HIS LRS (A) BOJKAVAR W/O BHALKISHN INDANI, AGE: 64 YEARS, 0CC: HOUSEHOLD, R/O RAICHUR. (B) PREMLATA W/O KEDARNATH AGE: 52 YEARS. 0CC: HOUSEHOLD, R/O NASIK. (C) SUSHILA W/O SHAiMSUNDAR BTYANI. AGE: 50 YEARS, 0CC: HOUSEHOLD, R/O LATUR. (D) JAJSHREE W/0 SURESH SARDA. AGE: 48 YEARS. 0CC: HOUSEHOLD. R/O NASIK. (E) KIRAN W/O GOVINDNARAYAN ASAWA, AGE: 46 YEARS, 0CC: HOUSEHOLD, R/O BELLARY. (F) JYOTHI W/O SATHYANARAYANA JAJU, AGE: 44 YEARS, 0CC: HOUSEHOLD, R/0 AURANGABAD. (G) VEENA W/O ANIL KUMAR ZAMWAR, AGE: 42 YEARS. 0CC: HOUSEHOLD, R/O AURANGABAD. (H) SUBADHARA BAI W/O HARIKISHAN MALU, AGE: 84 YEARS, 0CC: HOUSEHOLD, R/O GULBARGA. PREMCHAND S/O HARIKISHAN MALU, (I) AGE: 60 YEARS, 0CC: BUSINESS. R/0. H.N0.1-1-1295, A1WAN-E-SHAHI. GULBARGA.

4. BRIJMOHAN S/0 HARIKRISHNA (HARIKISHAN) MALU, AGE: 58 YEARS, 0CC: BUSINESS. R/0 H.N0.1-1295. AIWAN-E-SHAHI, GULBARGA. KRISHNA KUMAR S / 0 NARAYANLAL © NARAYANDAS LAHOTI, 0CC: BUSINESS, R/O PARASMAL ROAD, LATHUR (MAHARASTRA). LAXMIRAMAN S/0 VENKATLA LAHOTI. 0CC: BUSINESS. R/O PARASMAL ROAD, LATHUR (MAHARASTRA). RESPONDENTS

(BY SRI. ASHOK S. KINAGI. ADV. FOR R1(A-H)) THIS RSA IS FILED U/S 100 OF’ CPC AGAINST THE JUDGMENT AND DECREE DATED 20.11.2010 PASSED IN C. 1 -3- R.A.NO.03/2006 ON THE FILE OF THE I ADDL. CIVIL JUDGE (SRDN,) AT GULBARGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED

22.1L2005 PASSED IN O.S.NO.608/1998 ON THE FILE THE V ADDL. CIVIL JUDGE (JR.DN.) AT GULBARGA. THIS APPEAL IS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT This matter when came up before this Court on

27.02.2012 and 28.02.2012, it was heard both regarding admission as well as applications filed for condonation of delay in filing appeal, also bringing legal representatives of deceased 1st respondent on record. Since, this Court that applications should be disposed of first they were disposed of by order dated

28.02.2012. Thereafter, it was posted to this day to consider the appeal for admission. This Court after hearing the counsel for appellant and on going through the judgment and decree passed in O,S,NO,608/1998 and also R.A,NO.03/2006 feel that the appellant in RSA -4- No.7092/2011 has not made out any grounds to admit this appeal for following reasons:

2. As could be seen from the original suit, it is filed for the reilef of perpetual injunction restraining defendants from interfering with the portion of property bearing No.H.No.1-1295 of Lahoti Estate and also mandatory injunction directing defendant Nos. 1 and 2 to restore the electricity supply to plaintiffs house. Further, as could be seen from plaint averments, plaintiff was in possession of said property as manager, he claim that there was an alleged agreement of sale by defendant Nos.3 and 4 to sell suit property in his favour for valuable consideration of Z2,20,000/-. The consideration amount was agreed to be paid from plaintiffs salary at Z1,500/- per month till entire sale consideration is recovered. In the trial Court, it is also his case that when the alleged agreement of sale by defendant Nos.3 and 4 in favour of plaintiff was in force, 3” defendant sold the suit property in favour of -5- defendant Nos. 1 and 2 though registered sale deed dated 30.05.1998. Hence, he filed the suit for the relief indicated therein.

3. In the said suit defendant Nos.1 and 2 filed written statement. Defendant Nos.3 and 4 did not filed written statement, based on the available pleadings following Issues were framed;

1. Whether the plaintiff proves that he is In possession of the suit property as on the date of suit?

2. Whether the plaintiff proves the alleged Interference by the defendants?

3. Whether the plaintiff proves that the defendants with an intention to evict the plaintiff from the suit property have removed electricity disconnected electricity supply?

4. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? I -6-

5. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for?

6. What order of decree?

4. The Court below after recording evidence heard plaintiff and contested defendant Nos. 1 and 2 and answered issues No.1 to 5 in the negative and held that averments made by plaintiff were not proved and accordingly. the suit of plaintiff came to be dismissed with cost.

5. Against which R.A.No.03/2006 was filed on the file 1st Additional Civil Judge (Sr.Dn.) Gulbarga. wherein the first Appellate Court framed the following points for consideration:

1. Whether the lower court has justified in negating the issues No.1 and 2 framed by it holding that, the plaintiff has failed to establish that, he was possession of the suit property as on the date of the suit and also the alleged interference by the defendants? H -7- the plaintiff has

2. Whether the lower court has further Justified in negating the issue No.3 to 5 failed to holding that, establish that, the defendants have removed and disconnected the electricity supply with an intention to evict the plaintiff from the suit property and also regarding the relief of mandatory perpetuaL Injunction injunction?

3. Whether the Judgment and decree of the lower court is arbitrary. baseless, capricious, erroneous, frivolous and perverse with devoid of merits and warrants the Interference by the instant court?

6. To what order or decree? In the Regular Appeal point Nos. 1 and 2 are answered in affirmative and point No.3 in negative and confirmed the judgment passed In original suit with reference to the finding given by trial Court on all issues. As against concurrent finding of the both Courts below, the present appeal is ified. LI -8-

7. On going through grounds of appeal and also finding of both the Court below, It Is clearly seen that suit filed by plaintiff and regular appeal Is nothing but a chance litigation with an Intention to knock of the property of defendant Nos.3 and 4 which defendant Nos. 1 and 2 appears to have acquired under registered sale deed. Plaintiff has failed to establish his right to seek relief as contended in the original O.S.No.608/1998 and also failed to demonstrate before the first Appellate Court that the finding of the trial Court on Issues Nos. 1 to 61s arbitrary, capricious and without application of mind.

8. This Court on re-appreciation of finding of both the Court below giving concurrent finding against the aforesaid pleadings of plaint Is of the opinion that the Courts below have rightly come to the conclusion the entire litigation is frivolous and false as Initiated by plaintiff. The finding of both the Courts below being the finding on the facts of the case, there Is C, -9- no scope for framing substantial question of law. Plaintiff has not made out any ground to seek admission of this appeal. In the instant case, plaintiff having failed substantiate existence substantial question of law for consideration in this appeal, this Court find there is no justification to admit the same.

9. Accordingly, second appeal filed by plaintiff in O.S.No.608/ 1998 is dismissed. Consequently, judgment and decree passed in O.S.No.608/ 1998 and confirmed in R.A.No.03/2006 is made absolute. Sd/ JUDGE Srt