Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1038 (KAR)

Basappa v. Saidabi

2020-06-10

N.S.SANJAY GOWDA

body2020
JUDGMENT N.S. Sanjay Gowda, J. - Smt. Saidabi, the plaintiff , filed a suit seeking for a decree of perpetualinjunction to restrain the defendants from obstructing her peaceful possession and enjoyment of the suit property, which was a vacant land measuring 50 feet X 50 feet. 2. It was the case of the plaintiff that the suit plot, which was a backyard, was formerly belonging to her mother Patavva and Veerappa Bager (the father of the second defendant and the husband of third defendant) had purchased the property from her mother, Patavva and she had thereafter re-purchased the property from Veerappa Baliger (the father of the second defendant and the husband of third defendant), under a registered sale deed dated 08.12.2004 by paying a consideration of Rs.38,000/- and eversince she was in possession. It was contended that her possession over the suit property was sought to be obstructed by the defendants and in this regard, she has lodged a complaint to the police on 26.12.2007, but the P.S.I. had endorsed that a suit in O.S.No.7/2005 had been filed for partition and hence, she was constrained to approach the Court seeking for a decree of injunction. 3. In response to the summons, only the first defendant entered appearance and contested the suit. The second and third defendants remained absent and were thus placed exparte. 4. The first defendant contended that the suit property had been purchased by Veerappa Baliger (the vendor of the plaintiff) with joint family funds and was hence a joint family property. It was his case that the suit property was in the joint possession and enjoyment of Veerappa Baliger and Veerappa Baliger, being addicted to certain vices, had developed an illicit relationship with the plaintiff , as a result of which, the suit in O.S.No.7/2005 had been filed for partition. The first defendant admitted that sale deed had been executed in the name of plaintiff, but the same was false and concocted and the plaintif f had not paid any sale consideration for it and that she was not in possession and enjoyment thereof. The first defendant contended that they were in possession of the suit property and hence, the suit ought to be dismissed. 5. The first defendant contended that they were in possession of the suit property and hence, the suit ought to be dismissed. 5. The Trial Court on consideration of the evidence recorded a finding of fact that the plaintiff was in possession of the suit property pursuant to the sale deed executed in her favour and that she was entitled for a decree ofinjunction. 6. The defendants being aggrieved, preferred an appeal. 7. The Appellate Court after re-appreciating the entire evidence, concurred with the finding of the Trial Court that the plaintif f had proved her possession and proceeded to dismiss the appeal. 8. It is against this concurrent finding, that the plaintiff was in possession and was entitled to be protected by a decree, this second appeal has been preferred by the defendants. 9. Learned counsel for the appellants contended that the suit property was indeed the joint family property of the defendants and the vendor of the plaintif f had no right, title or interest to sell the suit property. He contended that the sale deed was a concocted document and had no value in the eye of law and had to be ignored. He submitted that the plaintiff had in fact admitted in her cross-examination that the suit property was a joint family property and was in the joint possession of the defendants and she had also admitted that she had approached the police and sought for possession and this request to the police, by itself , disentitled her for a decree of injunction. Learned counsel for the appellants also contended that in a suit for injunction, when the defendants denied the title of the plaintiff and raised objections regarding the validity of the title acquired by the plaintif f, the suit for injunction ought to have to been dismissed and the plaintif f ought to have been relegated to the remedy of filing a comprehensive suit seeking for declaratory relief. 10. Learned counsel for the respondent, on the other hand, supported the judgment of the Trial Court as well as the Appellate Court and contended that having regard to the fact that both the Courts had recorded a clear finding that the plaintiff had proved her possession, there was absolutely no question of law, much less a substantial question of law arising for consideration before this Court. 11. 11. I have considered the submissions of the learned counsel for the appellants and perused the material on record. 12. Admittedly, the suit was for injunction and plaintiff's possession was based on a sale deed executed in her favour. Admittedly, the defendants were aware of the sale deed and yet chosen not to challenge the sale deed either by way of a counter claim or by filing a separate suit. In a suit for injunction, the basic question to be decided would, always, be as to whether the plaintiff was able to establish his or her possession as on the date of the suit. Any finding recorded regarding title of plaintiff would always be incidental and solely meant for the purpose of deciding the possession of the plaintiff . It is settled law that any finding recorded in an injunction suit regarding title would not, by itself , be conclusive as regards the title of the property. 13. Learned counsel for the appellants placed reliance on the decision of the Apex Court in the case of Anathula Sudhakr Vs. P. Buchi Reddy (Dead) by LRs. And Ors, (2008) AIR SC 2033 o contend that when a cloud was raised over the plaintif f's title, necessarily the plaintiff would have held to file a suit for declaration and a suit for bare injunction cannot be entertained. 14. I am afraid that this is not the enunciation of law by the Apex Court in the said decision. The Apex Court has clearly stated that when there is a cloud raised over the plaintiff's title and he does not have possession, then the suit for a declaration and possession would be the remedy. The Apex Court has not stated in the said decision that a bare suit for injunction would not be maintainable. The Apex Court has not declared as a matter of legal principle that in a suit for injunction, if the defendant denies the title of the plaintif f, the plaintif f would have to be necessarily relegated to remedy of filing a comprehensive suit. I am therefore of the view that the decision relied upon by the learned counsel for the appellants has no relevance to the issue on hand. 15. In the instant case, both the Courts, on appreciation of evidence have recorded a clear finding that the plaintiffis in possession of the suit property. I am therefore of the view that the decision relied upon by the learned counsel for the appellants has no relevance to the issue on hand. 15. In the instant case, both the Courts, on appreciation of evidence have recorded a clear finding that the plaintiffis in possession of the suit property. The learned counsel for the appellants, however, sought to contend that there was a clear admission by the plaintiff herself that she had sought for possession, when she lodged a police complaint and that admission by itself was suf ficient to dismiss the suit. Admittedly, the complaint in which the plaintiffis said to have sought for possession through the hands of the police, has not been produced before the Court nor has the said complaint been summoned at the instance of the defendants. In my view, an answer to the suggestion that the plaintiff had sought for police help to secure possession is not an admission of the plaintiff that she was not in possession. One has to keep in mind that in a rural area, approaching the polce and seeking for assistance can be construed in many ways. A statement recorded by the Court during cross-examination of the plaintiff that the plaintiff sought for possession through the hands of the police, cannot be construed as an admission that plaintif f was out of possession. I am therefore of the view that the argument of the learned counsel for the appellants does not any merit any acceptance. 16. As stated above, since both the Courts have held that the plaintif f has proved her possession, there is no question of law much less a substantial question of law arises for consideration in this appeal. The second appeal is accordingly dismissed.