1. Suit for permanent injunction by wife claiming possession of land purchased by husband who was missing. (Para 2 , 4 )
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HIGH COURT OF KARNATAKA
N.K. Sudhindrarao, J
Rudranna – Appellant
Versus
Gowramma – Respondent
REGULAR SECOND APPEAL No.3113/2006
Advocates:
For the Appellants/Petitioners: N.S. Prasad
For the Respondents: T. Govinda Raja
For the Appellants/Petitioners: N.S. Prasad
For the Respondents: T. Govinda Raja
Important Points
The court held that kharab land attached to a property is part of the main land and a wife can legally file a suit for permanent injunction to protect her husband's property from third-party interference even if the husband's presence is disputed.
Subject
Civil - Property Dispute
Act Referred
Headnote
(A) Civil Procedure Code, 1908 - Section 100, Order 41 Rule 27 - Indian Evidence Act, 1872 - Section 108 - Suit for permanent injunction - Possession based on sale deed and RTC extracts - Dispute over area specifically kharab land - Legal standing of a wife to file a suit for injunction for her husband's property. (Paras 9, 12, 21, 23)
(B) Kharab land - The rule is that kharab attached to a particular land always goes along with the main land. (Para 21)
(C) Standing to sue - A wife is not disqualified from filing a suit for permanent injunction against third parties regarding her husband's property, even if the husband's whereabouts are disputed, provided there is no collusion or conflict with the husband's interest. (Para 23)
Facts of the case:
The plaintiff sought a permanent injunction regarding land purchased by her husband via a sale deed in 1992. She claimed her husband went missing and she remained in possession. The defendants challenged her right to the property and the extent of the land, arguing that the husband was actually alive and that the boundary included an excess of 5 guntas of kharab land.
Findings of Court:
The court found that RTC extracts supported the total extent of 3 acres 9 guntas, including 5 guntas of kharab land, which follows the main land. It further held that the wife had the legal right to protect the property via an injunction suit.
Issues: Whether the plaintiff was in possession of the land measuring 3 acres 9 guntas despite the vendor's title being for 3 acres 4 guntas, and whether the husband's disputed status barred the wife from filing the suit.
Ratio Decidendi: Kharab land attached to a property is considered part of that property. Furthermore, a wife can legally maintain a suit for injunction to protect her husband's property from third-party interference, as it does not act against the husband's interests.
Result: Appeal dismissed.
(B) Kharab land - The rule is that kharab attached to a particular land always goes along with the main land. (Para 21)
(C) Standing to sue - A wife is not disqualified from filing a suit for permanent injunction against third parties regarding her husband's property, even if the husband's whereabouts are disputed, provided there is no collusion or conflict with the husband's interest. (Para 23)
Facts of the case:
The plaintiff sought a permanent injunction regarding land purchased by her husband via a sale deed in 1992. She claimed her husband went missing and she remained in possession. The defendants challenged her right to the property and the extent of the land, arguing that the husband was actually alive and that the boundary included an excess of 5 guntas of kharab land.
Findings of Court:
The court found that RTC extracts supported the total extent of 3 acres 9 guntas, including 5 guntas of kharab land, which follows the main land. It further held that the wife had the legal right to protect the property via an injunction suit.
Issues: Whether the plaintiff was in possession of the land measuring 3 acres 9 guntas despite the vendor's title being for 3 acres 4 guntas, and whether the husband's disputed status barred the wife from filing the suit.
Ratio Decidendi: Kharab land attached to a property is considered part of that property. Furthermore, a wife can legally maintain a suit for injunction to protect her husband's property from third-party interference, as it does not act against the husband's interests.
Result: Appeal dismissed.
Legal Category Hierarchy
- property law
- practice and procedure
-
family law
-
rights of wife
- suit for husband's property (Para 23)
-
rights of wife
Table of Contents
2. Plaintiff claimed possession; defendants contended plaintiff claimed excess land and husband was alive. (Para 4 , 5 , 12 , 13 , 14 )
3. Wife can sue for husband's property when he is missing and she is in possession; kharab land passes with main land. (Para 22 , 23 )
4. Wife not debarred from seeking injunction for husband's property against third parties when husband is missing. (Para 23 )
5. Appeal dismissed; concurrent findings of possession and entitlement affirmed. (Para 23 )
6. Can a wife file a suit for injunction in respect of her husband's property when the husband is missing?
Yes. There is no wrong in the wife filing a suit for the schedule property belonging to her husband when she is in possession, particularly when the suit is not against the husband or his interest. (Para 23 )
7. Does kharab land attached to a survey number pass with the main land?
Yes. Kharab land is non-agricultural land that always goes along with the main land to which it is attached. (Para 21 , 22 )
8. What is the evidentiary value of RTC extracts when there is conflict between sale deeds?
When there is a conflict between sale deeds produced by the parties, the RTC extract is the appropriate yardstick to ascertain the extent of land. (Para 16 , 17 , 18 , 20 )
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 01.09.2006 PASSED IN R.A.NO.145/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN) MADHUGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 17.10.2005 PASSED IN OS.NO.96/2004 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC., KORATAGERE.
THIS REGULAR SECOND APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Counsel for appellants present. Counsel for respondent absent and there is no representation. The matter is of the year 2006, in terms of the regular appeal it is of the year 2005 and in terms of the original suit it is of the year 2004.
2. The present Regular Second Appeal filed by defendants relates to Original Suit No.96/2004 filed by one Smt.Gowramma W/o M.S.Basavaraju against defendants - Rudrappa and Siddappa, for the relief of permanent injunction. The said suit came to be decreed in favour of the plaintiff on 17.10.2005. The defendants preferred appeal in R.A No.145/2005. The said appeal came to be dismissed on 01.09.2006. Being aggrieved of the said judgment and decree the defendants have come in this Regular Second Appeal.
3. In order to avoid confusion and overlapping the parties are addressed in accordance with their ranks as stood in the trial Court.
4. The case as presented by the plaintiff before the trial Court is that the schedule property was purchased by M.S.Basavaraju husband of plaintiff from one Gangamma by registered sale deed dated 25.05.1992. The katha and pahani of the document was transferred in the name of plaintiff’s husband. Unfortunately, from 24.04.2000 plaintiff’s husband disappeared and was unfound till the date of filing of the suit. He has left behind the plaintiff and two sons by name Chikkanagowda and Siddagangaiah. From the date of purchase, plaintiff is in exclusive possession and enjoyment of the property paying khandayam to the Government. Defendants who are utter strangers have started interference to the schedule property and peaceful possession of the plaintiff.
5. Defendants contended that husband is not absconding. It is only with a malafide intention such kind of averments is made. It is also stated that plaintiff is entitled for only 3 acres 5 guntas in both Sy.no.141/3 and 141/5. But in Sy.no.141/3 she has stated she is entitled for 3 acres 9 guntas and the land is attempted to be encroached by the defendants, hence she has filed the suit.
6. The learned trial Judge has framed the following issues:
1. Whether the plaintiff proves her lawful possession over the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves the alleged interference by the defendants?
3. Whether the plaintiff is entitled for permanent injunction as prayed for?
4. What order or decree?
7. The learned trial Judge was accommodated with oral evidence of PW1-Gowramma and documentary evidence at Ex.P1-Original sale deed, Ex.P2-Sale deed, Ex.P3-Certificate, Exs.P4-6- Kandayam paid receipts, Ex.P7-9-Certified copy of RTC extracts, Ex.P10-Certified copy of M.R, Ex.P11-Sketch and oral evidence of DW1-Rudranna and DW2-Chandregowda and documentary evidence at Exs.D1-D2 – Certified copy of the RTC extracts and Ex.D3-D4 – Sale deeds.
8. On conclusion, the learned trial Judge came to the conclusion that plaintiff was in possession and was entitled to file a suit and has decreed the same as prayed for in respect of the schedule property mentioned therein, which is as under:
Land bearing Sy.no.141/3 including the kharab of 3.09 guntas consists of 51 coconut tress, 16 tamarind trees, one Hippe tree, 3 Nerale trees, assessed at Rs.3-41 of Manuvanakurke, C.N.Durga Hobli, Karatagere Taluk bounded as follows:
East by : Defendant land
West by : Channabasavaiah
North by : Tank Bund
South by : Adavappa and others
8. The appeal was preferred by the defendants in RA No.145/2005 before the learned Civil Judge, Senior Division, Madhugiri. The said appeal came to
