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2021 Supreme(Kar) 698
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
N.K. SUDHINDRARAO, J.
Siddalingamma Major, W/o. Late T.H. Siddalingappa & Ors. - Appellants
Versus
Abdul Sudan Sab @ Pyare Sab, S/o. Mohamed Sab & Ors. - Respondents
R.S.A. No. 618 of 2000 (INJ) c/w R.S.A. No. 619 of 2000 (DEC)
Decided On : 17-02-2021
For the Appellant : Sri Sunil Kumar Patel, for Sri S.K. Venkata Reddy.
For the Respondent: Sri S. Narayana, Sri B. Purandara.
Headnote:
Civil Procedural Code, 1908 - Order 7 Rule 8 - Order 26 Rule 9 - Second appeals - Suit for a permanent injunction - Whether lower courts ignored to appreciate the documents in proper perspective on behalf of the plaintiff in O.S. and also further committed an error with respect to the identity of the suit property – Held, learned trial judge and the appellate judge have upheld the claim - Nobody is disputed the sale deed executed in favour - But what was the measurement of the property claimed by plaintiff is not forthcoming - It is totally a strange situation wherein a person claims property and does not give the measurement - Another aspect that has to be noticed here is, assuming that the property presently owned by plaintiff belonged during 30 or 40 years back, but it is not established - The sketch filed by the plaintiff separates the property by a path. The sketch is not authenticated, as the details are not forthcoming. In the whole circumstances, Court find both the trial court and the first appellate court erred in dismissing the suit of the plaintiff in O.S. and decreeing the suit of the plaintiff - Insofar as permanent injunction is concerned, there was no concrete evidence for possession or apprehension of interference or lawful possession - Equally in O.S., the title of the plaintiff is, the deed produced as sale deed and mandal records and Ex.P2 and Ex.P3 define both the measurement and the property number – Appeals allowed.
JUDGMENT :
These two regular second appeals are directed against the judgment and decree dated 12-01-2000 passed in two separate regular appeals in R.A.No.75/1989 and R.A.No.23/1989 by the learned Principal Civil Judge (Sr.Dn) and CJM, Tumkur.
2. R.S.A.No.618/2000 is filed by the appellants/ defendants-Siddalingamma and others against the judgment and decree passed in R.A.No.75/1989 connected to O.S.No.31/1982. R.S.A.No.619/2000 is filed by the appellant/plaintiff-Chidananda against the judgment and decree passed in R.A.No.23/1989 connected to O.S.No.22/1982. Since both the matters are inter connected in the form of parties and the schedule properties, they are disposed of in common.
3. In order to avoid conflict and overlapping, the parties are addressed in accordance with their rankings and status as held by them before the Trial Court so also with their names.
4. O.S.No.22/1982 filed by plaintiff-Chidananda came to be dismissed on 9-1-1989 and the appeal preferred by the plaintiff-Chidananda in Regular Appeal No.23/1989 also came to be dismissed and against which RSA No.619/2000 is preferred by him. Similarly, O.S.No.31/1982 filed by Abdul Subhan Sab son of Mohamed Sab came to be decreed on 09-01-1989 and R.A.No.75/1989 that was preferred by the defendants-Siddalingamma and others came to be dismissed and against which RSA No.618/2000 is preferred by the defendants-Siddalingamma and others. In other words to say, plaintiff in OS No.22/1982 suffered dismissal of his plea and similarly OS No.31/1982 is decreed in favour of plaintiff. Thus, both the regular second appeals are preferred by Chidananda and Siddalingamma and others. Regard being had to the fact that plaintiff in OS No.31/1982 Abdul Subhan Sab had filed the said suit for a permanent injunction and the said suit came to be decreed in his favour and plaintiff Chidananda has filed O.S.No.22/1982 for declaration and injunction which came to be dismissed.
5. The schedule property claimed by the plaintiff-Chidananda in O.S.No.22/1982 is as under;
Site measuring 40 feet East-West and 33 feet North-South bearing Municipal Khata No.625/624 situated at Panduranganagar, Tumkur Town, bounded on:
East by : Galli Road;
West by : Site of T.M. Puttasiddappa previously;
North by: House of G.H. Siddagangappa
South by: Galli Road.
Similarly, the schedule property mentioned by the plaintiff-Abdul Subhan Sab in O.S.No.31/1982 is as under:
Site with compound situated in Kota Jayachamarajendra road, Tumkur Town bounded on:
East by : Municipal road, wall of Tulasamma’s house and site sold by T.M.P. Siddappa to Tulasamma;
West by: House of Gubbanna in possession of his children and wife;
North by: Path in between this property and house of Huchanna and Budabasab’s house now fell to the share of Huchanna and compound of Tulasamma’s house;
South by: Road now formed by Government.
6. According to plaintiff-Chidananda, he purchased the schedule property from its owners Kempanna and Narasimhaiah under the registered sale deed dated 8.9.1980 which is stated to be a site measuring 40 ft x 33 ft bearing Municipal Katha Nos. 625/624 situated at Panduranganagar, Tumkur.
7. Defendant –Abdul Subhan Sab filed written statement denying the plaint averments and contending that he purchased the suit property and some more properties adjoining it from T.M.P.Siddappa whose title and possession was declared in O.S.No.550/1955 under a registered sale deed dated 17-12-1981 and has been in possession and has paid taxes and plaintiff-Chidananda has filed the suit without title or possession.
8. Similarly Abdul Subhan Sab, who is plaintiff in O.S.No.31/1982 seeks for the relief of injunction against the Chidananda and others in respect of the suit schedule property claiming that, originally, suit schedule property belonged to T.M. Puttasiddappa and he was in possession and enjoyment of the same. Husband of 1st defendant and father of defendants No.2 to 4 disputed the title of T.M.Puttasiddappa and therefore, he filed a suit for dec
