N Najundappa vs Nandigiri Anjinappa
2021 Latest Caselaw 3779 Kant

                                              RSA 445/2021
                                  1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10TH DAY OF NOVEMBER, 2021

                            BEFORE

       THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                R.S.A.No.445/2021 (DEC/INJ)

BETWEEN:

N.Nanjundappa
S/o Chicknanja @ Nanjappa,
Aged about 64 years,
Agriculturist Head Constable,
9th Batallion, No.128, K-Block,
"Tunga Sankeerna"
Koramangala,
Bangalore - 560 034.

Now R/at Nandi Village Nad Hobli,
Chikkaballapur Taluk &
District - 562103.                     ... APPELLANT

(By Sri Varadarajan.M.S., Adv.)

AND:

Nandigiri Anjinappa,
Since dead by LRs

1.     Manjunath
       S/o Late Nandagiri Anjinappa,
       Aged about 46 years,

2.     Ashoka
       S/o Late Nandagiri Anjinappa,
       Aged about 44 years,

       Respondents 1 & 2 are R/at,
       Nandi Village and Hobli,
       Chickballapur Taluk 562103.
                                           RSA 445/2021
                              2


N. Munishamappa
Since dead by LRs

3.   Muniraju
     S/o Late Munishamappa,
     Aged about 41 years,

4.   Smt. Parvathamma
     D/o Late Munishamappa,
     Aged about 31 years,

     Respondents 3 & 4 are R/at,
     Nandi Village & Hobli,
     Chickballapur Taluk - 562103.

Muniyappa
Since dead by LRs

5.   Narasamma
     W/o Late N.Muniyappa,
     Aged about 55 years,

6.   Muniraju
     S/o Late N. Muniyappa,
     Aged about 35 years,

7.   Nanjamma
     D/o Late N.Muniyappa,
     Aged about 26 years,

8.   Nanjundamma
     D/o Late N.Muniyappa,
     Aged about 24 years,

9.   Shobha
     D/o Late N.Muniyappa,
     Aged about 22 years,

     Respondents 5 to 9 are R/at,
     Nandi Village and Hobli,
     Chickballapur Taluk 562103.     ... RESPONDENTS
                                                   RSA 445/2021
                              3


      This Regular Second Appeal is filed under Section 100 of
CPC against the judgment and decree dated 25.10.2021 passed
in RA.No.225/2015 on the file of the II Additional Senior Civil
Judge and JMFC, Chickballapur, dismissing the appeal dated
03.09.2015 passed in O.S.No.747/2008 on the file of the
Principal Civil Judge and JMFC, Chikkaballpura.

      This appeal coming on for Admission, this day, the Court
delivered the following:

                        JUDGMENT

1. This Regular Second Appeal is filed by the

unsuccessful plaintiff challenging the judgment and decree

dated 03.09.2015 passed by the Prl. Civil Judge & JMFC,

Chickaballapur, in O.S.No.747/2008 which has been

confirmed by the II Addl. Senior Civil Judge & JMFC,

Chickaballapur, in R.A.No.225/2015 vide judgment and

decree dated 25.01.2021.

2. For the sake of convenience, the parties are referred

to by the rank assigned to them in the court at first

instance.

3. Brief facts of the case that would be relevant for the

purpose of disposal of this appeal are, plaintiff and

defendants 2 & 3 are the sons of Chikka Nanja @ RSA 445/2021

Nanjappa and Puttamma and they are the joint owners of

the suit schedule property. It is the case of the plaintiff

that in the year 1981, he had left his village after joining

the services in Police Department and he started residing

at Bengaluru, thereafter. After he came to know that

defendant no.1 herein had filed a suit for specific

performance against his mother, brothers and himself and

on the basis of the decree granted in the said suit bearing

O.S.No.31/1998 from the competent civil court, defendant

no.1 also had filed Execution Case No.72/2003 and got

executed the sale deed in his favour through the process of

the Court, plaintiff had filed the present suit in

O.S.No.747/2008 before the Trial Court seeking the

following reliefs:

(i) Declaring that the plaintiff and defendants 2 & 3 are the absolute owners in possession and enjoyment of the suit property;

(ii) Declaring that the decree in O.S.No.31/1998 on the file of the Principal Civil Judge (Jr.Dn.), Chickaballapur and the modified decree in R.A.No.49/1999 on the file of Civil Judge RSA 445/2021

(Sr.Dn.), Chickaballapur and further the sale deed dated 08.06.2005, in execution of the said decree in Ex.No.72/2003 are null and void;

(iii) Permanent injunction restraining the 1st defendant, his agents, LRs, assignees, contractors, servants or anyone else claiming under him or on his behalf from interfering with the plaintiffs peaceful possession and enjoyment of the suit property in any manner;

(iv) For costs and such other reliefs.

4. It has been averred by the plaintiff in the present suit

that defendant no.1 herein had played fraud on the court

and had managed to see that the suit summons in the suit

for specific performance was not served on the plaintiff

herein and had clandestinely obtained a decree in the suit

and subsequently got executed the sale deed in his favour

through the process of the Court.

5. Defendant no.1 after service of notice in the present

suit had entered appearance and filed his written

statement and resisted the suit claim. Defendants 2 & 3 RSA 445/2021

who are the brothers of the plaintiff, though served in the

present suit had remained unrepresented.

6. The Trial Court on the basis of the rival pleadings

had framed the following issues in the suit and had

answered all the issues in the negative while dismissing

the suit.

(1) Whether the plaintiff proves that the plaintiff and defendant nos.2 & 3 are the absolute owners of the suit schedule property?

(2) Whether the plaintiff proves that the decree passed in O.S.No.31/1998 on the file of this Court and modified decree in R.A.No.49/1999 on the file of Civil Judge (Sr.Dn.), Chickballapur and sale deed executed pursuant to Ex.72/2003 are null and void and liable to be set aside?

(3) Whether the plaintiff proves that he is in possession of the suit schedule property?

(4) Whether the plaintiff proves that defendant no.1 interfered with his possession?

RSA 445/2021

(5) Whether the plaintiff is entitled for declaration as sought for?

(6) Whether the plaintiff is entitled for injunction as sought?

(7) What order or decree?

7. Being aggrieved by the judgment and decree passed

by the Trial Court, the plaintiff had filed R.A.No.225/2015

before the First Appellate Court and the said appeal has

been dismissed by the judgment and decree dated

25.01.2021. It is under these circumstances, the plaintiff

is before this Court in this regular second appeal.

8. Learned Counsel for the plaintiff submits that

defendant no.1 herein had played fraud on the court and

managed to obtain the decree in the suit for specific

performance filed by him, and thereafter, he has got the

sale deed executed in his favour through the process of the

court. He submits that the plaintiff was not served in the

earlier proceedings initiated by defendant no.1 for specific

performance. He submits that his mother and brothers RSA 445/2021

have colluded with defendant no.1 and thereby a collusive

decree was obtained by defendant no.1. He submits that

ever since 1981 onwards, plaintiff was not residing in the

village and inspite of defendant no.1 having knowledge

about the same, deliberately he did not give the present

address of the plaintiff and managed to obtain a

fraudulent decree in respect of the suit schedule property

in collusion with his mother and brothers. He submits that

the Trial Court as well as the First Appellate Court have

failed to appreciate this aspect of the matter and have

erred in dismissing the suit.

9. I have carefully considered the arguments addressed

on behalf of the appellant and also perused the material

available on record.

10. It is not in dispute that the plaintiff herein is a party

to the sale agreement dated 25.04.1992 which was

executed jointly by the plaintiff, his mother and brothers in

favour of defendant no.1 herein. The suit O.S.No.31/1998

was filed by defendant no.1 before the competent civil RSA 445/2021

court seeking a decree of specific performance of the said

agreement dated 25.04.1992 and in the said suit, the

plaintiff's mother as well as his brothers though served

had not participated in the proceedings. Since the suit

summons issued to the plaintiff herein was returned in the

said suit, steps were taken for substituted mode of service

on the plaintiff herein, and thereafter, the court had

proceeded to dispose of the suit O.S.No.31/1998 in

accordance with law. Since the suit O.S.No.31/1998 was

partly decreed in favour of defendant no.1 herein, he had

filed R.A.No.49/1999 challenging the judgment and decree

passed in O.S.No.31/1998 only to the extent the reliefs

that were not granted in the suit. In the Regular Appeal

proceedings also, the mother and the brothers of the

plaintiff herein were served. Even in the said proceedings,

since the appeal notices were not served on the plaintiff

herein, steps were taken for substituted mode of service

and after obtaining necessary report with regard to

substituted service, the appeal was disposed of on merits.

The First Appellate Court had allowed the appeal in RSA 445/2021

R.A.No.49/1999 and defendant no.1's suit was decreed in

to. Thereafter, defendant no.1 filed Ex.No.72/2003 and

even in the said proceedings, the mother and brothers of

the plaintiff are admittedly served and unrepresented and

defendant no.1 got executed the sale deed in his favour

through the process of the court, thereby the decree

passed for specific performance in O.S.No.31/1998 has

attained finality.

11. The plaintiff has now filed the present suit to declare

himself and defendants 2 & 3 as the absolute owners in

possession and enjoyment of the suit schedule property

and also to declare that the judgment and decree passed in

O.S.No.31/1998 which has been confirmed in

R.A.No.49/1999 as null and void and also consequentially

declare the sale deed dated 08.06.2005 executed in favour

of defendant no.1 in Ex.No.72/2003 as null and void.

Though defendants 2 & 3 who are none other than the

brothers of the plaintiff have been served in the present

suit, they have remained absent and they have not

supported the case of the plaintiff.

RSA 445/2021

12. It is not in dispute that the plaintiff was also a party

to the sale agreement dated 25.04.1992 in respect of which

the earlier suit for specific performance was filed by

defendant no.1 herein. It is also not in dispute that

plaintiff is the permanent resident of Nandi village of

Chickaballapur and only for the purpose of employment,

he had left the said village in the year 1981 and was

residing in Bengaluru. Therefore, the fact remains that the

last known address of the plaintiff was as per the cause

title in O.S.No.31/1998 filed by defendant no.1 for specific

performance. Since the plaintiff was not served in the said

proceedings, steps were taken for substituted mode of

service and only after compliance of the requirement of

law, the Trial Court as well as the First Appellate Court

have decreed the suit for specific performance filed by

defendant no.1 herein.

13. Though the plaintiff herein has submitted that the

mother and his brothers have colluded with defendant

no.1 and thereby a collusive decree for specific

performance was obtained, he has not made any averment RSA 445/2021

that he and his family members have got any ill-will and

they are ill-disposed towards him. From the material on

record, it is seen that the mother and brothers of the

plaintiff herein who were also joint signatories to the sale

agreement dated 25.04.1992 which was the subject matter

of the suit for specific performance in O.S.No.31/1998,

have not contested the said suit and though they were

residing in the very same address, wherein the affixture for

substituted service was taken on the plaintiff, they have

not brought the same to the notice of the plaintiff herein. It

is not the case of the plaintiff that he was not in contact

with his mother and brothers ever since the year 1981 and

it is also not his case that ever since 1981, he has not

visited his village at any point of time before the present

suit was filed. By filing the present suit, an attempt is

made by the plaintiff herein to annul the decree passed by

the competent civil court for specific performance in

O.S.No.31/1998, wherein the present plaintiff along with

his mother and brothers were parties. The judgment and RSA 445/2021

decree passed in the said suit which has been admittedly

executed cannot be re-opened in the present case.

14. The Trial Court and the First Appellate Court having

appreciated all the aforesaid aspects of the matter have

rightly dismissed the suit of the plaintiff. Therefore, I do

not find any ground to entertain this appeal. No

substantial question of law arises for consideration in this

appeal. Accordingly, this second appeal is dismissed at the

stage of admission. No order as to costs.

15. Since the main appeal itself is dismissed on merits,

IA-1/2021 filed seeking temporary injunction does not

survive for consideration and the same is also dismissed.

Sd/-

JUDGE

KK