Karnataka High Court
Nanjegowda, Since Dead vs Jayamma on 16 February, 2022
Bench: M.G.S. Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S. KAMAL
RSA No. 675 OF 2012(DEC/INJ)
BETWEEN:
NANJEGOWDA, SINCE DEAD
REPRESENTED BY HIS LR'S
1a) SMT CHANDRAMMA
W/O LATE NANJEGOWDA
AGED ABOUT 57 YEARS
R/O HULLIKERE VILLAGE
HALEBEEDU HOBLI
BELUR TALUK
HASSAN DIST - 573 115.
1b) SHANTH KUMAR H.N.
S/O LATE NANJEGOWDA
AGED ABOUT 35 YEARS
R/O HULLIKERE VILLAGE
HALEBEEDU HOBLI
BELUR TALUK
HASSAN DIST - 573 115.
1c) H.N. SHAKUNTHALA
D/O LATE NANJEGOWDA
AGED ABOUT 33 YEARS
R/O HULLIKERE VILLAGE
HALEBEEDU HOBLI
BELUR TALUK
HASSAN DISTRICT -573 115.
(SINCE DEAD, REPRESENTED BY LR'S V/O DATED:01.06.2017
... APPELLANTS
(BY SRI. VINAYAKA B., FOR
SRI. SUBRAMANYA R., ADVOCATE)
2
AND:
JAYAMMA
W/O SHIVAMALLEGOWDA
AGED ABOUT 55 YEARS
HULIKERE VILLAGE
HALEBEEDU HOBLI
BELUR TALUK - 573 115.
...RESPONDENT
(BY SRI. K. KRISHNASWAMY, ADVOCATE)
THE REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED
24.08.2011 PASSED IN R.A.NO.2/2011 ON THE FILE OF THE
SENIOR CIVIL JUDGE, BELUR, PARTIALLY ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED:28.10.2009 PASSED IN O.S.NO.84/2003 ON THE FILE OF
THE CIVIL JUDGE (JR.DN) BELUR.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by the
appellants/defendants aggrieved by the judgment and
order dated 24.08.2011 passed in R.A.No.2/2011 on the
file of the Senior Civil Judge, Belur (hereinafter referred
to as the 'first appellate court'), in and by which, the First
Appellate Court partly allowing the appeal of the
respondent/plaintiff set aside the judgment and decree
dated 28.10.2009 of dismissal passed in O.S.No.84/2003
on the file of the Civil Judge (Jr.Dn.) Belur, (hereinafter
referred to as the 'trial Court') and granted decree of
permanent injunction, restraining the
appellants/defendants permanently from interfering with
the possession and enjoyment of the suit schedule
property by the plaintiff till her dispossession as per law.
2. Smt.Jayamma the plaintiff filed the above suit
for declaration that she is the absolute owner in
possession of the suit schedule property being dry land
measuring 19 guntas in Sy.No.58/AP on the premise
that her father -Hampegowda had acquired the same as
his share in a partition that had taken place in the year
1960. That the said Hampegowda died on 11.05.1993
leaving behind him, his widow -kamalamma and three
daughter, namely, Jayamma- plaintiff herein,
Ganagamma and Gurupadhamma. That there was a
partition on 10.02.1985 in which the suit schedule
property was allotted to the share the plaintiff. As such,
she has been in possession and enjoyment of the same
as owner thereof. That the plaintiff learnt about an
execution proceedings in Execution Petition No. 65/1998
on the file of the Trial Court filed by the defendant
seeking possession of the suit schedule property on the
basis of a decree dated 15.06.1998 passed in RSA
No.669/1991 to which neither the plaintiff nor her
mother and sisters were parties. Further, Hampegowda-
the father of the plaintiff, who was arraigned as a party
to the said RSA No.669/1991 had passed away on
11.05.1993. That the defendant being a relative of
Hampegowda had willfully managed to obtain the
aforesaid decree against the deceased -Hampegowda
without bringing the legal representatives on record. That
the decree passed against the dead person is nullity and
does not bind the plaintiff or the other legal
representatives of Hampegowda. This constrained the
plaintiff to file the above suit for declaration that she is
the absolute owner in possession of the suit schedule
property and also for declaration that a decree dated
15.06.1998 passed in RSA No.669/1991 as null and void
and not binding on her.
3. The defendant filed written statement
contending interalia that the counsel for Hampegowda
ought to have reported his death during the pendency of
the appeal. As such, no fault could be found in the decree
passed in RSA No.669/1991. That the suit schedule
property belonged to husband of one Gowramma and the
said Gowramma had fostered the defendant during her
lifetime and after death of her husband, she had
bequeathed the suit schedule property in his favour by
way of Will. That the suit in O.S.No.377/1974 was filed
by the defendant for declaration and possession in
respect of 1 acre of land in Sy.No.58/3 and 38 guntas of
land in Sy.No.58/4 against Kalegowda, Halegowda,
Hampegowda, Basavegowda and others which was
dismissed. The matter was carried in an appeal in
R.A.No.101/1984, which was also dismissed resulting in
the defendant filing the second appeal in RSA
No.669/1991. The High Court allowed the said RSA
No.669/1991 and decreed the suit of the plaintiff and
directed the aforesaid persons including the father of the
plaintiff to handover the possession of the property.
Accordingly, an execution petition in Execution Petition
No.65/1998 was filed. As such, he sought for dismissal of
the suit.
4. The Trial Court based on the pleadings framed
issues and recorded evidence. On appreciation of
pleadings and evidence, dismissed the above suit in
O.S.No.84/2003 by its judgment and decree dated
10.7.2003. Aggrieved by the same, the plaintiff filed a
regular appeal in RA No.2/2011 on the file of first
appellate court.
5. The First Appellate Court by its judgment and
order dated 24.08.2011 while accepting the contentions
of the plaintiff with regard to the judgment in RSA
No.669/1991 being a nullity for having passed against
the dead person, has however declined to grant relief of
declaration in favour of plaintiff. The First Appellate Court
taking into consideration of the fact that the very decree
in RSA No.669/1991 was one for possession and the said
decree having been held to be not binding on the
plaintiff, the plaintiff is deemed to be continuing in
settled possession of the suit land. Thereby partly
allowed the appeal granting permanent injunction,
resulting in appellant/defendant filing the present second
appeal.
6. Learned counsel for the appellant/defendant
reiterating grounds urged in the appeal memorandum
submitted that;
(a) the first appellate court while declined to grant
the main relief of declaration of title of the plaintiff ought
not to have granted consequential relief of permanent
injunction merely relying upon the entries in the revenue
records.
(b) that the first appellate court erred in not
noticing that the plaintiff was essentially trying to deny
the execution of Will by Gowramma in favour of the
defendant on the premise of questioning the validity or
otherwise of the decree passed in RSA No.669/1991.
Such a collateral challenge cannot be permitted and as
such, the first appellate court grossly erred in
entertaining the suit. Thus , he submits appeal involves
a substantial question of law requiring consideration.
7. On the contrary Sri. K. Krishnaswamy learned
counsel for the respondent/plaintiff submits that the
very suit of the defendant in O.S.No.377/1974 being one
for declaration and possession and the decree passed in
RSA No.669/1991 having held to be a nullity as against
the legal representatives of Hampegowda, the
appellant/defendant cannot derive the benefit of the said
decree. He further submits that the first appellate court
in the instant case has only granted a decree of
permanent injunction restraining the appellant/defendant
from interfering with the possession and enjoyment of
the suit schedule property by the plaintiff till her
dispossession in accordance with law. That no substantial
question of law would arise for consideration.
8. Heard learned counsel for the parties. Perused
the records.
9. There is no dispute that the decree dated
15.06.1998 passed by this Court in RSA No.669/1991
was against the father of the plaintiff and others. The
said father of the plaintiff had passed away on
11.05.1993, much prior to passing of the aforesaid
decree. It is settled law that the decree passed against a
dead person is a nullity. The first appellate court
therefore, justified in declaring that the decree passed in
RSA No. 669/1991 dated 15.06.1998 is not binding on
the plaintiff. As such, no fault can be found with the
said reasoning.
10. As regards the decree passed by the First
Appellate Court granting permanent injunction
restraining the appellant/defendant from interfering with
the peaceful possession and enjoyment of the suit
schedule property by the plaintiff until her dispossession
in accordance with law, as rightly observed by the first
appellate court, the very suit in O.S. No.377/1974 filed
by the appellant/defendant was one for declaration and
possession which was granted in favour of the
appellant/defendant in the aforesaid RSA No.669/1991,
which is now held to be not binding on the
respondent/plaintiff, there is no infirmity or illegality in
possession of the plaintiff being protected until her
dispossession in accordance with law.
11. It is brought to the notice of this Court that
Execution Petition No.65/1998 filed by the
appellant/defendant seeking execution of decree passed
in RSA No.669/1991 is also dismissed.
12. The First Appellate Court has merely granted
an order of permanent injunction restraining defendant
from interfering with the possession and enjoyment of
the plaint schedule property by the plaintiff till her
dispossession in accordance with law. It is settled law
that even a trespasser is entitled for relief of injunction
protecting his possession till dispossession in accordance
with law.
13. In the instant case, the appellant/defendant
who is claiming better title over the respondent/plaintiff
in respect of the suit schedule property may have to seek
appropriate remedy in accordance with law, seeking
dispossession of the plaintiff from the suit schedule
property. Till such time, the settled possession of the
respondent/plaintiff which is established and even as
admitted by the appellant/defendant has to be protected
under the law.
14. For the aforesaid analysis, the reasons
assigned by the First Appellate Court at paragraph 14 of
its judgment do not suffer from any infirmity or illegality.
In view of the above, no substantial question of law
arises for consideration in the matter. Hence, appeal is
dismissed.
Sd/-
JUDGE
RU
