1 RSA 329/12

IN THE HIGH COURT OF AT BANGALORE

DATED THIS THE 27 TH DAY OF AUGUST, 2014

BEFORE

THE HON’BLE MR. JUSTICE A.S. PACHHAPURE

REGULAR SECOND APPEAL No.329 OF 2012

BETWEEN :

Jayalakshmamma, Aged about 67 years, W/o. late Chikka Borappa, R/at Palahalli Village, Belagola Hobli, Srirangapatna, Srirangapatna Taluk, Mandya District. ... APPELLANT/S

[By Sri. N.G. Sreedhar, Adv.]

AND :

Shivanna,

Since deceased rep . by his L.Rs . a) Padmamma, Aged about 55 years, R/at Agasanahundi Village & Post, Saragur Hobli, Taluk, District. b) Savithri, Aged about 43 years, D/o. late Shivanna,

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W/o. Y.B. Chandrashekara Gowda, R/at No.212, Gaddige Main Road, Near Check Post, Bhogadi, Mysore – 570 026. c) Sathyanarayana, Aged about 40 years, S/o. late Shivanna, d) Shankara, Aged about 38 years, W/o. late Shivanna,

Respondents (c) & (d) are r/at Agasanahundi Village & Post, Saragur Hobli, Heggadadevanakote Taluk, . e) Jayanthi, Aged about 36 years, D/o. late Shivanna, W/o. Suresh, C/o. Cheluve Gowda, No.16, 2 nd Cross, Housing Board, Road, H.D. Kote, Mysore District. ... RESPONDENT/S

[Amended vide Court Oder dated 18.09.2013]

[By Sri R.S. Ravi, Adv.]

***

This RSA is filed u/Section 100 of CPC., against the Judgment and Decree dated 18.11.2011 passed in R.A. No.5/2009 on the file of the Prl. Civil Judge (Sr.Dn.) & JMFC., Srirangapatna,

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allowing the appeal and setting aside the Judgment and Decree dated 20.11.2008 passed in O.S. No.184/2006 on the file of the Prl. Civil Judge (Jr.Dn.) and JMFC., Srirangapatna.

This RSA coming on for Admission this day, the Court delivered the following:

JUDGMENT

The appellant has challenged the Judgment and

Decree of the first appellate Court, allowing the appeal filed by deceased respondent and setting aside the Judgment and Decree of the trial Court granting injunction in her favour, restraining the respondent for causing obstruction to her peaceful possession and enjoyment of the suit property.

2. The facts relevant for the purpose of this appeal are as under:

The parties will be referred to by their rank before the trial Court for the sake of convenience.

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The appellant, who is the plaintiff before the trial Court instituted the suit for injunction to restrain the respondent from causing obstruction to her peaceful possession and enjoyment of the suit agricultural land bearing

Sy. No.11/P measuring 2.32 acres with the boundaries described in the schedule to the plaint. She contended that the aforesaid land is the suit property, which is in her possession and her father had executed a Will dated 06.12.1976, which is said to have been cancelled subsequently and that in an arrangement, she was put in possession of the suit property and her name appears in the owners as well as cultivators column of the record of right. Contending that defendant-Shivanna [deceased respondent herein] is her brother and was causing obstruction to her peaceful possession and enjoyment of the suit property, instituted the suit.

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The defendant appeared before the trial Court and filed his written statement denying the averments made and contended that the Will dated

06.12.1976 was cancelled by his father and that the plaintiff is not in possession of the suit property. It is his specific contention that he is in possession of the suit property all along and therefore, sought for dismissal of the suit.

It was further contended that a suit for injunction against a co-owner cannot be maintained.

On the basis of the pleadings, the trial

Court framed the issues and permitted the parties to produce their evidence.

The plaintiff was examined herself as P.W.1, a witness P.W.2 and in their evidence Exs.P1 to 12 were marked. The defendant was examined himself as D.W.1 and in his evidence Exs.D1 to 5 were marked.

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The trial Court after hearing the counsel for the parties and on appreciation of the evidence on record, granted a decree to the plaintiff

[appellant herein] as prayed for. Aggrieved by the Judgment and Decree of the trial Court, the defendant [deceased respondent herein] preferred an appeal in R.A. No.5/2009 and under the impugned

Judgment and Decree, the said appeal has been allowed by dismissing the suit. Aggrieved by the

Judgment and Decree of the first appellate Court, the present appeal has been filed.

3. he respondent has filed a memo dated

27.08.2014.

4. I have heard learned counsel for the parties.

5. It is the submission of learned counsel for the appellant that the record of rights discloses the name of the appellant both in the owners and cultivators column of the suit property

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in the records maintained by the revenue authorities and there is presumption that Section

133 of the Karnataka Land Revenue Act is in favour of the appellant and she is in possession of the suit property. He submits that the trial Court considered this aspect and granted a decree of injunction, which has been wrongly reversed by the first appellate Court. He submits that there was a family arrangement amongst the members of the family at the instance of her father and sons and from the date of the arrangement, the appellant is in possession of the suit property and therefore injunction is needed to protect her possession.

He submits there is substantial question of law for the aforesaid contention and requested to admit the appeal.

On the other hand, learned counsel for the respondents has supported the Judgment and Decree of the first appellate Court.

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6. It is not in dispute that the appellant and the deceased respondent are sister and brother respectively and are the children of G.Puttappa and he had executed a Will on 06.02.1976 and the copy of the Will has been produced at Ex.P12. So far as this will is concerned, it is the contention that it was cancelled by G.Puttappa and the Deed of cancellation has been produced at

Ex.D4. It is the submission of learned counsel for the appellant that in pursuance of the contents of this Will, the suit property was entrusted to the possession of the appellant by way of a family arrangement and as the Will was subsequently cancelled, the parties continued in possession as per the instructions of their father and therefore, he contends that this aspect of the matter has not been looked into by the first appellate Court.

7. It is not in dispute that the suit property was granted to the father of the parties

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under the orders of the Land Tribunal and on his death, they succeed to the suit property as Class-

I legal heirs. When this aspect of the matter is taken into consideration, both the parties have the right to be in possession of this property as it is succeeded by them as Class-I heir.

So, when both of them have right to have possession of this property, the question of granting injunction to restrain another member of the family does not arise at all. Both the parties have co-ownership right over the suit property and an injunction to restrain a co-owner cannot be granted.

8. So far as the possession is concerned, though it is contended by the appellant that there was a family arrangement, to endorse the said fact there is no document. Even the evidence that has been led by the parties is insufficient to hold that there was such an arrangement made by their

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father or by the members of the family. Though there may be some reference in the Will that was executed by G.Puttappa i.e., deceased father of the plaintiff and the defendant, as the said Will was cancelled by the testator under Ex.D4, the question of looking into the contents of this

Will, which would come into effect only on the death of the testator does not arise. In such circumstances, the entries in the record of rights itself is insufficient to hold that the plaintiff is in exclusive possession of the suit property.

9. As the defendant is the co-owner, the question of granting an injunction against him hence does not arise. Anyhow, as could be seen from the evidence of D.W.1, there appears to be an admission that the plaintiff is in possession of portion of the suit property to the extent of 1 acre and there is no admission that the plaintiff is in possession of the suit property to an extent

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of the area mentioned in the record of rights. In the absence of any evidence regarding the family arrangement and exclusive possession of the suit property by the plaintiff [appellant herein]. The first appellate Court was justified in reversing the findings of the trial Court and dismissing the suit filed by her. The appellant at the most may approach the Court for claiming her share in the suit property. It is for this reason that the first appellate Court has reversed the Judgment and Decree of the trial Court. Anyhow, learned counsel for the respondents has filed a memo today referring to the admission made by the respondents relating to possession of the appellant over an area to the extent of 1 acre in the suit survey number. With these observations, referring to the memo filed and on consideration of the material placed on record and the submission made by learned counsel for the appellant, I do not find any substantial question of law for consideration.

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Consequently, the appeal fails and it is accordingly dismissed. In view of dismissal of the appeal, I.A. No.2/12 filed for stay does not survive for consideration and it is accordingly rejected.

Sd/- JUDGE.

Ksm*