Karnataka High Court
Smt. Vinoda M M vs Smt. Gayathri on 4 November, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:44324
RFA No. 416 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 416 OF 2023 (DEC/INJ-)
BETWEEN:
SMT. VINODA M M
S/O MOUNESH M E,
AGED ABOUT 39 YEARS,
R/AT NO.272, 7TH CROSS,
6TH BLOCK, 2ND STAGE,
NAGARBHAVI,
BENGALURU - 560 072.
...APPELLANT
(BY SRI. BAPAT SAMPATH VINAYAKA RAO, ADVOCATE)
AND:
SMT. GAYATHRI
W/O B. V. MOHAN,
AGED ABOUT 52 YEARS,
R/AT NO.256, 3RD MAIN ROAD,
Digitally signed by BHYRAVESHWARANAGAR,
VEDAVATHI A K SUNKADAKATTE,
Location: High
Court of Karnataka MAGADI MAIN ROAD,
BENGALURU - 91.
...RESPONDENT
(BY SRI. JNANESH KUMAR K., ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED
25.11.2022 PASSED IN OS No.4444/2017 ON THE FILE OF THE
X ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGALORE, DECREEING THE SUIT FOR DECLARATION AND
INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC:44324
RFA No. 416 of 2023
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
ORAL JUDGMENT
Though this matter has come up for admission, with the consent of learned counsels for the parties, the same is taken up for final hearing and disposed of by this judgment.
2. This appeal is filed by the appellant-defendant under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 (for short 'CPC') for setting aside the judgment and decree passed by the X Additional City Civil and Sessions Judge, Bengaluru, in O.S. No.4444/2017 dated 25.11.2022, whereby the trial Court has decreed the suit in favour of the respondent-plaintiff.
3. Heard the arguments of learned counsel appearing for the appellant and the learned counsel appearing for the respondent.
4. The rank of the parties before the Trial Court is retained for the sake of convenience.
5. The case of the plaintiff before the trial Court is that she filed the aforesaid suit for declaration and injunction -3- NC: 2024:KHC:44324 RFA No. 416 of 2023 against the defendant to declare that she is the owner of the suit schedule property bearing old Sl. No.844/775, property No.714, 714/1, 714/2 and 714/3 and site No.345 and present BBMP new No.115 measuring East to West 30 feet and North- South 40 feet situated at Srigandada Kavalu Vasathi Rahitara Sanga, Yeshwanthapura Hobli, Bangalore North Taluk and the same was purchased by the plaintiff under the sale dated 18.04.1996 and she is in possession of the said property. It is the further case of the plaintiff that the defendant interfered with the said property. Therefore, the plaintiff filed the suit for injunction against the defendant and later, she filed a suit for declaration that she is the owner of the suit schedule property and accordingly, prayed for decreeing the suit.
6. In pursuance of the service of notice, the defendant entered appearance through her Counsel and filed written statement denying the entire claim of the plaintiff. It is the contention of the defendant that she purchased the property from her vendor on 23.01.2013 and the vendor of the defendant purchased the property from the said Society in the year 1993. It is further alleged that the plaintiff filed a suit in -4- NC: 2024:KHC:44324 RFA No. 416 of 2023 O.S. No.791/2017 and the same was dismissed for non persecution and without obtaining any liberty or prior permission from the court the present suit was filed, which is hit by Order II Rule 2 of CPC. Therefore, the suit requires to be dismissed. It is also contended by the defendant that she has taken a loan of Rs.13,94,000/- for construction of the building and the same was stopped. Hence, prayed for dismissing the suit.
7. Based upon the pleadings, the trial Court framed issues:
a.) Whether the plaintiff proves that she is the absolute owner of the suit schedule property?
b.) Whether suit is hit by principles of res-judicata?
c.) Whether Court fee paid is insufficient? d.) Whether plaintiff is entitled for possession of the suit schedule property? e.) What order or decree?
8. In order to prove the case, the plaintiff herself was examined as P.W.1 and has produced 13 documents as per Exs.P.1 to P.13. However, subsequently, she did not turn up -5- NC: 2024:KHC:44324 RFA No. 416 of 2023 and hence, her husband as the SPA holder of the plaintiff has been examined as P.W.2. The defendant has not cross examined P.W.2 nor she has led her evidence and she has also not produced any documents before the court. After hearing the learned counsel for the parties, the trial Court given finding by answering the issues in favour of the plaintiff and passed the judgment by decreeing the suit of the plaintiff. Being aggrieved by the same, the defendant has filed this appeal.
9. Learned counsel for the appellant-defendant has contended that the appellant has good grounds on merit. There are various grounds urged by the appellant-defendant in the written statement Unfortunately, the appellant could not cross examine the respondent-plaintiff. It is further contended that, even though the appellant obtained loan for construction of the building, the same was stopped. In view of the absence of the appellant-defendant, the trial Court, decreed the suit, which has resulted in miscarriage of justice. Therefore, the learned counsel prays that the matter be remitted back for fresh consideration by setting aside the judgment and decree passed by the trial Court.
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NC: 2024:KHC:44324 RFA No. 416 of 2023
10. Learned counsel for the respondent-plaintiff has contended that the trial Court has provided sufficient opportunity to the appellant-defendant to contest the matter, but not cross examined P.W.1. Therefore, the judgment was passed and the suit was decreed on merits. Therefore, there is no need for remitting the matter back to the trial court and therefore, prays for dismissing the appeal.
11. Having heard the arguments of learned counsel for the parties, perused the records.
12. The points that arise for consideration in his appeal are :
(i) Whether the plaintiff has made out the case for allowing the appeal and for remitting the matter back?
(ii) What order ?
13. Perusal of the records reveals that the plaintiff and defendant claim right and title over the suit schedule property through two different sale deeds. Admittedly, the property -7- NC: 2024:KHC:44324 RFA No. 416 of 2023 belongs to Srigandada Kavalu Vasathi Rahitara Sanga and the sites were formed by the said Society. Initially, the suit schedule property was sold to the vendor of the defendant in the year 1993 and subsequently, the defendant said to be purchased the said site on 21.03.2013 under the sale deed.
The plaintiff also claims right over the property by purchasing the same for sale consideration. When both the parties claim right over the same property, it is necessary for the court to decide the issue on merits.
14. Of course, the respondent-plaintiff said to be filed a suit for bare injunction in O.S. No.791/2015, which came to be dismissed for non-prosecution. It is submitted by the defendant that there is no liberty or prior permission obtained from the Court for the purpose of filing the suit for declaration which is hit by Order II Rule 2 of CPC. Therefore, the trial Court is required to answer the contention in respect of decreeing the suit. That apart, the vendor of the defendant is not made as a party to the suit. Such being the case, without making the necessary party to the suit, decreeing the suit that the plaintiff is the owner of the property, is not correct. Therefore, I am of -8- NC: 2024:KHC:44324 RFA No. 416 of 2023 the view that the matter requires to be remitted back to the trial court for fresh consideration and lead evidence and to cross examine P.W.2.
15. In the result, the following order is passed:
(i) The appeal is allowed in part.
(ii) The judgment and degree passed by the X
Additional City Civil and Sessions Judge, Bengaluru, in O.S.No.4444/2017 dated 25.11.2022, is hereby set aside.
(iii) The matter is remitted back to the trial Court for fresh consideration by giving liberty to the parties to implead necessary parties for deciding the suit on merits.
(iv) The appellant-defendant shall pay cost of Rs.10,000/- to the respondent-plaintiff within two weeks.
(v) The parties shall appear before the trial Court on 28.11.2024, without any further notice. -9-
NC: 2024:KHC:44324 RFA No. 416 of 2023
(vi) The trial Court shall dispose of the matter as early as possible.
Sd/-
(K.NATARAJAN) JUDGE CS List No.: 1 Sl No.: 39 CT:SK