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RFA No. 1982 of 2006
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
REGULAR FIRST APPEAL NO. 1982 OF 2006 (INJ)
BETWEEN
SRI. MUNIRAJA
S/O LATE SEENAPPA
AGED ABOUT 42 YEARS
NO.2, 11TH CROSS, KILARI ROAD
BENGALURU.
...APPELLANT
(BY SRI. N.R. NAIK., ADVOCATE)
AND
1. SRI. RAMAKRISHNA
AGED ABOUT 42 YEARS
2. SRI.S.RANGASWAMY
AGED ABOUT 44 YEARS
BOTH SONS OF LATE SEENAPPA
RESIDING AT HULIMAVU VILLAGE
BEGUR HOBLI, BENGALURU SOUTH TALUK
Digitally
signed by 3. NAZEER AHMED
PANKAJA S S/O LATE.S MEHABOOB MIYAH
Location: MAJOR.
HIGH COURT
OF 4. SRI. AYAZ AHMED
KARNATAKA
S/O K. ABDUL GAFOOR
BOTH RESIDENT OF NO. 10/1, CART
STAND ROAD, JOLLY MOHALLA
BENGALURU - 560 053.
...RESPONDENTS
(BY SRI. M.M. ASHOKA., ADVOCATE FOR C/R-3 & R-4
R-1 & R-2- NOTICE DISPENSED WITH)
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RFA No. 1982 of 2006
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DT: 13.09.2006 PASSED
IN O.S.NO. 7262/1995 ON THE FILE OF THE V ADDL.CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY, DISMISSING THE SUIT FOR
PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
S. Muniraja, the appellant herein instituted a suit in O.S.No.7262/1995 against his brothers Ramakrishna and S. Rangaswamy (defendant Nos.1 and 2) and also against Nazeer Ahamed and Ayaz Ahamed (defendant Nos.3 and 4), who had purchased the site from defendant Nos.1 and 2.
2. It was the case of S. Muniraja that the suit property was a joint family property and the defendants had no right to interfere with his possession.
3. The suit was contested by Nazeer Ahamed and Ayaz Ahamed contending that they had purchased the site from defendant No.1 out of suit 'B' schedule property under the registered Sale Deed dated 27.04.1994 and were in lawful possession.
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RFA No. 1982 of 2006
4. The Trial Court has accepted this plea and has recorded a finding that S. Muniraja did not prove that he was in lawful possession and it was defendant Nos.3 and 4, who were in lawful possession and has proceeded to dismiss the suit as against which the present appeal is preferred.
5. In the light of the fact that the sale in favour of defendant Nos.3 and 4 is not seriously in dispute and since there is clear evidence that they are in possession pursuant to the Sale Deed, the decree of injunction granted in their favour by the trial Court cannot be found fault with.
6. It is not in dispute that prior to filing of this suit against which this appeal arises, S. Muniraja had instituted O.S.No.1698/1996 for partition against his brothers, Ramakrishna and S. Rangaswamy (defendant Nos.1 and 2). It is also not in dispute that the suit was decreed on 08.11.2004 and S. Muniraja is held to be entitled for 1/3rd share in the suit schedule properties.
7. It is submitted by the learned counsel for the appellant that final decree proceedings are yet to be initiated by the plaintiff. In my view, it would be unnecessary to decide this appeal in view -4- RFA No. 1982 of 2006 of the decree that the plaintiff has obtained in O.S.No.1698/1996. It would only be necessary for the purpose of this appeal to clarify that in the event the appellant were to initiate the final decree proceedings, he would have to necessarily implead defendant Nos.3 and 4 in the said final proceedings and in those proceedings, it would be open for defendant Nos.3 and 4 to seek for allotment of properties, which they purchased from out of the share of defendant No.1.
8. In view of the above, this appeal is disposed of permitting the plaintiff to initiate final decree proceedings, in which event, defendant Nos.3 and 4 would be entitled to seek for allotment of the site that they had purchased from out of the share of defendant No.1.
Subject to the above, the appeal is dismissed.
SD/-
JUDGE BMC List No.: 1 Sl No.: 46