UAGE58YEARS
INTTflEHK§{COURTCNTKARNADMfl&KTBANGALQRE
DATED THIS THE 20% DAY OF AUGUST 201G
BEFORE
THE HON'BLE MR JUSTICE K.
REGULAR SECOND APPEAL 451 1" GOP '
BEUNEEN:
S /O LATE GUNDAPPA A ~
AGE 65 YEARS'
OCC:F'LOURVENDOR,.....__'-- S-
R/O SHANIMAHATHMA ' "
NEHRU ROAD, I)IURt3I"GU_DI,
SHIMOGA A 1 APPELLANT
[BY SRI
AND: V ' V' M
C.T.S_II_RENDR_A A _ .
S /O E£?A'I'EL THATVIIVIAIAY GOWDA,
O;CC_V:A{.}_I'{ICLIL'i__'RU1ST,
'AR/O CHII{,I{1»\f:-U.R,
POSTiKAI»iMARADI.
THE.ERTHAI~1ALLY TALUK.
SHIMOGA DISTRICT --- 577201. RESPONDENT
I ..7I’HIS RSA IS FILED UNDER SECTION 100 OF CPC
AGATSNT THE JUDGMENT AND DECREE DATED
-08.12.2008 PASSED IN R.A.NO.75/2006 ON THE FILE
OF THE 11 ADDL. CIVXL JUDGE (SR.DN.] SHIMOGA,
ALLOWING THE APPEAL AND’ SETTING ASIDE
JUDGMENT’ AND DEGREE DATED 17.04.2006 P.A~SS.ED
IN OS No.32/1998 ON THE FILE OF THE CIW.I,.il’UI:}CiE”‘
[JR.DN.) & JMFC, THIRTHAHALLK.
THIS APPEAL COMING ON FORApmsls-iON”THi1s’e«_ G’ ”
DAY, THE COURT DELIVERED THE $QigLO\K7_I’N.G:, ;
JUDGMENT _
The case is posted for adfniosion. it is
take up for final disposal; _
2. .O€’S_lVV.32:;/lQ§}€3″‘on the file of the
Civil Ju§1_8″€l, is the appellant in
this appeal ‘ »] __G-.’_) CFC.
.. Parties” be referred according to their status
V ‘ V . 2 in; the suit p convenience.
the case of the plaintiff that plaintiff has
“..jjp{Vn’ChAased plaint schedule property in the year 1974
the registered sale deed. The plaintiff is in
possession of the property from the date of purchase.
Defendant has left the village and settled at Shirnoga.
‘ Defendant is trying to interfere with the possession of
the property. So, plaintiff seeks for an
permanent injunction and also for consequential’reliefs’, D
5. Defendant in the Written statei’nent_i’~.fiied-.1
contend that the case of the
purchased the property in the year4’19f7’4 andxraas if
possession of the property corr’ec._t’.”‘o is
called is contended further
that the-.defendajitfi_s~«.in~…possession of the property,
taking _VadvDantVage.’:-of’=.th’eDV illiteracy, ignorance of the
azsalewdeedv is taken in the year 1974. It is
is in possession of the property
though defendant is residing at Shimoga. So pray
disriiisisal of the suit.
“3…/’ I
6. Learned trial Judge has framed issues.
Permitted parties to lead evidence. PWS 1
examined. Exs.P.l to P.6 are marked. On .
defendants. DWs 1 and 2 were examined it it
D.l9 were marked. Learned
the following issues with the:””‘fo11o\if1ng’ while ” it
dismissing the suit.
(1) Whether the plaintiff firoves-.th.a’t.he is in
lawful ,p0ssessio1f1=. of the “suit ‘schedule
property? ‘ ” – ‘
(2) VU7’hether”‘the”-1;:lVaintiffV’7.proVes that the
__ %_a.1lege’d *.:interfere’1ic–e by the defendant in
re’spe.ct of t’l1e’suit schedule property?
(3x)7. Whether entitle for the relief of
perinanenteginjtjriction as prayed for’?
.. « ‘ ~ What ‘order or decree?
gclndge answered the issues as under:
A (1_).~ No.1: In the Negative
AA _ tlssue No.2: In the negative
..n5(3) Issue No.3: In the negative
(4) Issue No.4: As per the final order for the H
foilowing, I ‘”
7. Plaintiff preferred RA 7 5/ 06 on the ~
Add}. Civil Judge, [Sr.Dn.), Shimoga. taelee K ”
Judge has raised the foilowing
and has answered them asttfoilews While the
Suit.
(1) Whether the 4’app’e11ai’};t:’ hasth. fproved that
he is, in lawful. ‘possession of the
schedu1e:- .property5 as o1i_j1;h’e “date of the
(2) H M_V\Ii–_ei~.he_zr_ it interfere with
ti1e.._V§fudg’if;ient~.ai1d decree passed by the
t1’ia1VCo’tirt?_ – ~
(3) d What e~ee.»j:» it j it
.. i] ‘ In the “a.fiirIna_tive
p ” V(2}.”~.In”i–the affifhiative
2 _, __ v{.3)_ ‘As.p’e.r__ the final order
A 8.v_.Thve..’dVefendant in the suit is the appellant.
AA _ ‘The scope of Section 100 CPC is settled by the
e..«JV1_idgr¥1ent of the Apex Court in Kashmir Singh VS.
Singh And Anr. [{Appeal) civil 1036 of 2002
the substantial question of law arises not
because the law is still debatable, but
because the decision rendered on a material’–_
question, violates the settled position of law._V
17. The general rule is that High Co_I.it*t
not interfere with concurrent findi_ngs”cgf’th’e4
Courts below. But it is notiianabsolutei
Some of the well recognL»2:edf_efxceptio’ns_ are it
where (1′) the courts below’:._have’~.i9’I1r9r¢d
material evidence or a_cted”o_n’ no evidence: .
(ii) the courts have drawn wrong’ inferences ”
from proved facts bypapplyiflg . the iaw
erroneously; or iii} eo_:urt’s.. have ‘wro: igly
cast the burden of” proof, we refer to
‘decision based on no.e1.)idence.’., ” it not only
refers to._cases,u,=here’ there as total dearth
of evidence, but. aiso..Vrefers’ to any case,
where, thefevidence, taken ‘asawhole, is not
rea’soI_ia.biy”–»._ V. of supporting the
‘.”..
10;’ the the case, the defendant’s
positive contention isthat sale deed of 1974 on which
claiming title to the property is created on
laeconnt’ of the defendant. This could have
V . been accepted but for Ex.P.2 –~ a certified copy of the
deed produced by the plaintiff. Ex.P.2 is in
— of father of plaintiff. So, prior transaction during
” “the life time of the father of the plaintiff is refiected in
the facts of the case. The fact finding Court having held
that the sale deed relied by the plaintiff is proved;
material placed before the Court do not give ~
substantial question of law for c<0mideratio'n"s by
Court. S0, appeal is rejected.