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2023 DIGILAW 1147 (KAR)

S. Subramani v. Gangalakshamamma

2023-09-27

H.P.SANDESH

body2023
JUDGMENT H.P. Sandesh, J. This matter is listed for admission and I have heard the learned counsel for the appellant. 2. The factual matrix of the case of the plaintiff before the Trial Court is that plaintiff is the owner of the site No.12 situated in Sy.No.111 of Shivanapura Village by virtue of an agreement of sale dated 29.01.1994. The defendant by an agreement of sale, agreed to sell the suit schedule property for a sum of Rs.7,500/- and the plaintiff has paid the entire sale consideration amount to the defendant No.1 and she put him in possession of the suit schedule property. The defendant No.1 has agreed to sell the same contending that by virtue of a partition entered into among the members of her family dated 08.06.1969, the defendant No.1 was allotted 1 acre, 1 gunta of land in Sy.No.111. As per the partition, the property mutated in M.R.No.2/92-93 and number of sites, out of which the site No.12 was agreed to be sold in favour of the plaintiff. The defendant No.1 was in need of money for their family necessity and daughter marriage and in view of the ban imposed by the Government of Karnataka, the document is not registered. The plaintiff constantly requesting to execute the sale deed in his favour, but the defendant is postponing the same for one or the other reasons. The defendant No.1 has formed a layout showing the location of the sites agreed to be sold in favour of the plaintiff. After ascertaining the boundaries of the layout plan and the agreement of sale, the plaintiff took possession and continued to be in possession of the sites. Without any right, title or interest over the suit schedule property, the defendant No.2 came to plaintiff's site in 2nd week of January, 2007 tried to disturb his possession. The defendants are the powerful persons in the area and disturbed the possession of the plaintiff. Hence, sought for the relief of permanent injunction. 3. In pursuance of the suit summons, the defendant No.2 appeared through counsel and not chosen to file any written statement. The defendant No.1 appeared through counsel and denied the plaint averments and contend that plaintiff is totally stranger and he has no manner of right, title, interest or possession over the suit schedule property. 3. In pursuance of the suit summons, the defendant No.2 appeared through counsel and not chosen to file any written statement. The defendant No.1 appeared through counsel and denied the plaint averments and contend that plaintiff is totally stranger and he has no manner of right, title, interest or possession over the suit schedule property. The agreement of sale is got up, concocted, created and fraudulent documents and the same has no value in the eye of law. The defendant No.1 along with the family members sold the entire land bearing Sy.No.111, measuring 3.11 guntas to the defendant No.2 through registered sale deed dated 27.12.2006 for valuable consideration. The defendant No.2 is in peaceful possession and enjoyment of the suit property including the suit schedule property. 4. The plaintiff, in order to prove his case, examined himself as P.W.1 and got marked the documents as Exs.P1 and P2. On the other hand, the defendant No.1 has examined as D.W.1 but, not tendered for crossexamination. 5. The Trial Court, having considered both oral and documentary evidence placed on record, dismissed the suit. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.38/2016. The First Appellate Court also, considering the grounds urged in the appeal memo, formulated the points whether the Trial Court has erred in holding that the plaintiff is not in possession of the suit schedule property and whether the judgment and decree passed by the Trial Court is liable to be set aside. The First Appellate Court also, on re-appreciation of both oral and documentary evidence placed on record, dismissed the appeal and confirmed the judgment of the Trial Court. Hence, the present second appeal is filed before this Court. 6. Learned counsel appearing for the appellant would vehemently contend that both the Courts have committed an error in not considering the documents of Exs.P1 and P2 i.e., General Power of Attorney and even the defendant No.2 has not filed any written statement and only the defendant No.1, who sold the property by executing the documents of Exs.P1 and P2 has filed the written statement denying the averments of the plaint. Hence, this Court has to frame the substantial question of law whether the Courts below have committed an error in dismissing the suit and confirming the judgment and decree of the First Appellate Court. 7. Hence, this Court has to frame the substantial question of law whether the Courts below have committed an error in dismissing the suit and confirming the judgment and decree of the First Appellate Court. 7. Having heard the learned counsel appearing for the appellant and on perusal of the material available on record, it is the case of the plaintiff that defendant No.1 sold Site No.12 formulated in Sy.No.111 and the sale agreement is not registered. The General Power of Attorney was marked as Ex.P1 and the affidavit was marked as Ex.P2 before the Trial Court. No doubt, even the first defendant, who filed the written statement and examined herself has not tendered for cross-examination. But the fact is that they are relying upon the sale agreement as well as the General Power of Attorney and in order to establish that the possession has been delivered in favour of the plaintiff no document had been placed before the Trial Court. While considering the suit for injunction, the plaintiff has to prove that as on the date of filing of the suit, she has been in possession of the property. The first defendant, who allegedly executed the power of attorney as well as the affidavit, also filed the written statement denying the very execution of Exs.P1 and P2. When D.W.1 disputes the documents of Exs.P1 and P2, no document is placed before the Court that as on the date of filing of the suit, the plaintiff has been in possession of the suit schedule property. The Trial Court considering the pleadings of the parties and also the evidence came to the conclusion that the plaintiff has failed to prove her contention by placing any cogent material piece of evidence before the Court and the interference of the defendant is also not proved by the plaintiff. When the plaintiff herself has failed to prove her lawful possession and ownership over the suit schedule property as well as its existence then definitely there is no question of causing interference with the possession of the plaintiff over the suit schedule property. 8. The First Appellate Court in detail discussed the material available on record by formulating the points and taken note of the pleadings of the parties. 8. The First Appellate Court in detail discussed the material available on record by formulating the points and taken note of the pleadings of the parties. In paragraph No.16, has observed that the plaintiff has not examined any other witnesses to prove the fact that she has been in possession and enjoyment of the suit schedule property. The Court also taken note that in the cross-examination, she has admitted that there is no any Kararu in between the plaintiff and defendant No.1 and also admits that the suit schedule property possession was not given and this is evident that the second defendant has encroached the suit schedule property in the year 2007 itself. Hence, he has been made as a party to the proceedings. 9. Having taken note of this admission, the First Appellate Court came to the conclusion that P.W.1 herself has admitted that defendant No.1 has not delivered the possession of the suit schedule property and also she has admitted that during the year 2007, defendant No.2 has encroached the suit schedule property, which clearly goes to show that the plaintiff has not been in possession and enjoyment of the suit schedule property. Hence, the First Appellate Court also on re-appreciation of oral and documentary evidence came to the conclusion that the lawful possession has not been established by the plaintiff. 10. Having considered the reasoning given by the Trial Court as well as the First Appellate Court and both the Courts have given the anxious consideration to the material available on record except the documents-Exs.P1 and P2, no other material has been placed before the Court and the plaintiff also not examined any other witness to prove her possession. Apart from that, in the cross-examination, she categorically admitted that the possession was not delivered and also defendant No.2 has encroached the suit schedule property. When such admission is given and when the plaintiff failed to establish the possession, the question of granting the relief of permanent injunction does not arise. Both the Trial Court as well as the First Appellate Court considered the material available on record and dismissed the suit, the same has been confirmed by the First Appellate Court. Hence, I do not find any ground to admit and frame any substantial question of law. 11. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed. Hence, I do not find any ground to admit and frame any substantial question of law. 11. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed. In view of dismissal of the appeal, I.As., if any do not survive for consideration, the same stands disposed of.