IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14"' DAY or' SEPTEMBER 2099
BEFORE V C'
THE HOl\€'BLE MR. JUSTICE K.N.t{EsHAVAist;§I{pASnt.i\tri.
REGULAR SECOND APPEAL..N_0.989"O'Fi:20l1§ it E
BETWEEN:
Smt.Rathnam.ma, it
W/o Mariswamy, Aged aobut 50 yeaifs;
Resident of Nalkudre, Gornala Vil1a.ge;.__
Channagiri Taluk, A '
Davanagere District--5.772l"3;lA'g--A ;..APPELLAN'l"
(By Sri.H.N.VenllIl<
T-hi.s"Rs.S.A. is filed under Section 100 of CPC against the
judgezhegnlt and decree dated 21.4.09 passed in R.A.No.53/08 on the
file-,_of the I Addl. Civil Judge (Sr.Dn.) and III Addl. MACT,
" _Da_v_a.uagere, dismissing the appeal and confirming the judgement
and decree dated 11.6.08 passed in O.S.N'o.160/04 on the file of the
Prl. Civil Judge (Jr.Dn.) & .lMFC., Channagiri.
This R.S.A. coming on for admission this day, the Court
delivered the fo1lowing:--
JUDGMENT
This second appeal is by the sole defendant in o.se.a.e;eiti6n;o4
on the file of Addl. Civil Judge (}r.Dn.), cnaair;nagi’ni–Lai’pjc~–frne’~
respondent is the sole plaintiff in the sai_d..su_i_t. H J ”
2. The respondent filed the aforesaid sulitj for athe-.pre_lief_of
permanent injunction in respect ofthe land ‘hearing.Syv.l\lot.37/Pfi/Ply ,
measuring 25 guntas situated irill’t’aal:\_la1l<_udrell'Golrnala Village of
Channagiri Taluk. The resnondent–plai.nt.iff.inter–alia contended
that property wasorilginally granted to his father
Hussain"'Salb.l_by under darkasth and till the death,
his father was -.in"possessionl and enjoyment of the same and upon the
a,_death'of..his._father; 'heist in possession and enjoyment of the suit
_ s'che'dule~.pro»p'erty'and his name has also been entered in the revenue
records asjpersonn in possession of the same and that the defendant
who has no manner of right, title or interest over the suit schedule
"–"_prope'rty is trying to interfere with his possession and enjoyment of
V' the same, as such, it has become necessary for him to file suit for
permanent injunction to restrain the defendant from interfering with
his peaceful possession and en'o ment of the suit schedule ro ert .
J Y P P Y
The appellanbdefendant resisted the said suit inter–alia contending
"M-
that the suit schedule property originally belonged to one Hussain
Sab and the said Hussain Sab bequeathed the suit schedule property
in her favour under a registered will dated 8.4.04 and upon”the..de–ath
of the said Hussain Sab on 7.7.04 she has become
suit schedule property and she has bee.n~–in..lawft’il the if
same. She further contended that the””plai»r_itiif has
with the said Hnssain Sab as suclt._h”e.. has no n_1anner*.of’..ri’g”r1wt or title” C
over the suit schedule property,.—–{n..”pthat’~-.view ofvvthednatter, the
appellantwdefendant sought for ‘dismissal
3.” On-.th£_ basif: “of “the”plead’ing’s’ of the parties the trial Court
framed the issues.. it§fter’ftheii’parti.es lead the evidence, the trial Court
on assessrnent. of oralV–.and_doc’umentary evidence held that the entries
if V’ ._ in thelreventie record’s”produced establishes that as on the date of the
suit”plaiiati.ffviwas”*in possession and enjoyment of the suit schedule
propierty_etit1’it_i1’at the defendant has not placed any rebuttal evidence
to rebut the presumption in respect of the entries in the revenue
and that the plaintiff has proved the interference with his
_pv_pbssession and enjoyment of the same by the defendant. In that
view of the matter, the trial Court decreed the suit. On appeal by the
appellant–defendant, the lower appellate Court concurred with the
judgment of the trial Court and consequently, dismissed the appeal.
«W
noticed that the defendant has not placed any evidence in proof of
the Will in accordance with Section 68 of the Indian Evidence Act.
Under these circumstances, in my opinion, the Courts
rightiy held that the plaintiff being in possession of
property is entitled for the decree of perman–e.nt injunction’, if
7. The learned Counsel’iifoi~~.,..theiiafilifmant’isioii.giit.,.t0–iplace»ti’
strong reliance on the order trial”‘Ci(.)A111fi},.ii§0n interim
application for irijunctionf” io”t}ic:igilea.rned Counsel, after
hearing the parties,__pthe:_’itriial grant temporary
injuncti’on”in- ‘tiieiefore, in the ‘light of the said
interi1rii”orde_r not right in decreeing the suit.
This argument is fa,ll’;1cio.usi.’The trial Court passed the interim order
byv-:i’eco,rdingpptentatiivefinding on the basis of the affidavit§filed by
1/
tlie_ – ‘The interim order was meant to be in force during the
pendencyoif’ suit and it has merged with the final order. Merely
because during the course of the interim order the trial Court had
2’3.c_orded a prima facie finding that the plaintiff is not in possession
ii , the property, it cannot be said that; subsequently on merits the
Court cannot hold that the plaintiff is in possession of the
property. It was also contended by the learned Counsel for the
appellant that the wife of Hussain Sab had filed an affidavit at the
time of consideration of the interim application for injunction
wherein, she had stated that the plaintiff is not her son. lt”is:.jon”‘the
basis of the said affidavit the trial Court recorded-fa prin1al”fai:.’i’c *
finding that the plaintiff is not i’i’1″”}’JO$S6flSlOfl’,’A”i.”Ht)\?l/:€§VéiT,
subsequently, the said person was not eiiamiried before the Court.
subjected to cross–exa.mination. ~.._U1ider thosecircvumstahces, the”
Courts below have rightly esciiiewed iuthe said’ “affidavit from
consideration. Under sustenance can be
drawn from the .interim trial Court on the
application for of the fact that both the
CourtsZbelgwllhttyeirecorded a finding of fact that the
plaintiffhas been enjoyment of the suit schedule
property, it isnot’ open to-._this”lCourt to interfere with the said finding
3 V’ _of in-,.,thisAsecondappeal. In this view of the matter, I hold that
__the,_’lapp:’eali »vdoes”fnot invoive any question of law much less
su’bstantial.’qu’es’tion of law.
if v 8. Accordingly, appeal is dismissed.
safe
IUDGE
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