Karnataka High Court
Shree Rajashekhar vs Rajkumar And Ors on 2 February, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF FEBRUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
R.F.A. NO.200054/2019
BETWEEN:
Shree Rajashekhar S/o Virupakshayya
Age: 51 years, Peethadhipati of Hiremath
R/o Bemalkheda Village, Tq. Humnabad
Dist. Bidar-585227
... Appellant
(By Sri Sachin M. Mahajan, Advocate)
AND:
1. Rajkumar S/o Veerappa Malgi
Age: 37 years, Occ: Agriculture
R/o Bemalkheda Village, Tq. Humnabad
Dist. Bidar-585227
2. Laxmi Kanth S/o Vidya Sagar Beernalli
Age: 42 years, Occ: Agriculture
R/o Bemalkheda Village, Tq. Humnabad
Dist. Bidar-585227
3. Shiv Shanker S/o Bakappa Police Patil
Age: 47 years, Occ: Agriculture
2
R/o Bemalkheda Village, Tq. Humnabad
Dist. Bidar-585227
4. Sharnappa S/o Laxuman Sajjan Shetty
Age: 72 years, Occ: Agriculture
R/o Bemalkheda Village, Tq. Humnabad
Dist. Bidar-585227
5. Vishwanath S/o Nagshetty Rotty
Age: 47 years, Occ: Agriculture
R/o Bemalkheda Village, Tq. Humnabad
Dist. Bidar-585227
6. Shir Chandrashekhar Shivacharyya Swamigalu
Gurupad Shivacharya Swamigalu
Age: 47 years
R/o Veerbhadreshwara Temple
Bemalkheda Village, Tq. Humnabad
Dist. Bidar-585227
... Respondents
(By Smt. Hema L.K., Advocate for R2 to R6;
R1 served)
This Regular First Appeal is filed under Order 41 Rule 1 read
with Section 96 of the Code of Civil Procedure, praying to set aside
the judgment and decree dated 29.10.2018 passed by the learned
Senior Civil Judge and JMFC at Humnabad in O.S.No.46/2011 and
remand the matter to the trial court for fresh disposal by making the
appellant herein as party to the suit, by allowing the appeal with
costs throughout.
This appeal coming on for admission this day,
S.R.Krishna Kumar J., delivered the following:
3
JUDGMENT
This appeal is directed against the impugned judgment
and decree dated 29.10.2018 passed in O.S.No.46/2011 by
the Senior Civil Judge and JMFC, Humnabad, whereby the
said suit filed by respondent Nos.1 to 5 - plaintiffs was
decreed against respondent Nos.6 - defendant No.2 while the
suit as against the deceased defendant No.1 - Sri Kashinath
Swamigalu alias Gurupad Shivaccharayya was dismissed as
abated before the trial court.
2. Heard learned counsel for the appellant and
learned counsel for respondent Nos.2 to 6 and perused the
material on record. Respondent No.1 having been served
with notice of this appeal, has chosen to remain un-
represented and has not contested this appeal.
3. The material on record indicates that respondent
Nos.1 to 5 instituted the aforesaid suit against respondent
No.6 - defendant No.2 and Sri Kashinath Swamigalu alias
Gurupad Shivaccharayya who was arrayed as defendant No.1
in the suit. In the said suit, respondent Nos.1 to 5 - plaintiffs
sought for declaration of ownership and correction of entries in
the revenue records along with consequential relief of
perpetual injunction and other reliefs. It is relevant to state
that during the pendency of the suit, the original defendant
No.1 i.e., the aforesaid Sri Kashinath Swamigalu alias
Gurupad Shivaccharayya expired and since no steps were
taken to bring his legal representatives on record, the suit
against the aforesaid defendant No.1 Sri Kashinath
Swamigalu alias Gurupad Shivaccharayya was dismissed as
abated. Defendant No.2 filed his written statement and
contested the suit. The material on record also indicates that
the suit was filed under Order 1 Rule 8 read with Section 92
CPC.
4. After hearing the parties, the trial court decreed
the suit in part thereby declaring that one "Hiremath" was the
exclusive owner and possessor of the suit schedule properties
and consequently restrained defendant No.2 by way of
perpetual injunction from marketing or creating charge in
favour of any Banks, private persons and financial agencies
and also from alienating, transfer or selling the suit property to
anybody else.
5. The respondent No.6 - defendant No.2 in the suit
has not challenged the impugned judgment and decree.
6. The appellant herein claiming to be a legatee
under a registered will dated 30.12.2016 said to have been
executed by the deceased defendant No.1 in favour of the
appellant, has preferred the present appeal and vide order
dated 12.01.2022, this Court allowed I.A.No.1/2019 and
permitted and granted leave in favour of the appellant herein
to prosecute the appeal though he was not a party to the
judgment and decree passed by the trial court. The appellant
has also filed two applications I.A.Nos.2 of 2019 and 4 of 2019
for permission to produce additional documents in support of
his claim.
7. Though several contentions have been urged by
both sides in support of their respective claims including the
claim of the appellant with regard to the will dated 30.12.2016
said to have been executed by deceased defendant No.1 Sri
Kashinath Swamigalu alias Gurupad Shivaccharayya in favour
of the appellant, it is necessary to state that the suit as against
the aforesaid defendant No.1 was dismissed as having abated
on the ground that he died during the pendency of the suit and
no steps to bring his legal representatives on record were
taken by the plaintiffs. It is also relevant to state that there is
no judgment, decree or order passed in the suit against the
deceased defendant No.1 and consequently, the question of
the impugned judgment and decree or any order passed in the
suit being binding upon the appellant herein or affecting his
alleged right, title, interest or possession over the suit
schedule properties or in the estate of the deceased
defendant No.1 would not arise for consideration in the
present appeal. Under these circumstances, we are of the
considered opinion that since the impugned judgment and
decree passed by the trial court or any order passed in the suit
would not affect the appellant herein nor be binding upon his
alleged right, title, interest or possession in the suit schedule
properties or in the estate of the deceased defendant No.1,
the question of interference with the impugned judgment and
decree passed by the trial court at the instance of the
appellant herein would not arise in the present appeal.
8. In the result, we pass the following:
ORDER
i) The appeal is hereby disposed of without interfering
with the impugned judgment and decree passed by
the trial court.
ii) It is made clear that the impugned judgment and
decree passed by the trial court and/or any order
passed in the suit in O.S.No.46/2011 by the trial
court would not be binding upon the appellant herein
and the same would not affect the alleged right, title,
interest or possession of the appellant over the suit
schedule properties or the estate of the deceased
defendant No.1 Sri Kashinath Swamigalu alias
Gurupad Shivaccharayya.
iii) The impugned judgment and decree passed by the
trial court and/or any order passed in the aforesaid
suit would also not bind or affect the alleged will
dated 30.12.2016 said to have been executed by the
deceased defendant No.1 in favour of the appellant.
iv) Liberty is also reserved in favour of the appellant to
take recourse to such remedies as available in law to
ventilate his grievances, if any, over the suit
schedule properties or in the estate of the deceased
defendant No.1 against the respondents herein or
anyone else.
v) In the event the appellant institutes any proceedings
before any court or forum subsequent to the disposal
of the present appeal by this order, liberty is also
reserved in favour of the respondents or anyone else
to oppose and contest the said proceedings in
accordance with law.
vi) All rival contentions between the appellant and the
respondents on merits are kept open and no opinion
is expressed on the same.
Sd/-
JUDGE
Sd/-
JUDGE
swk
