Karnataka High Court

Shivarudraiah vs Smt Chandramma on 22 February, 2022

Bench: Ashok S.Kinagi

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 22ND DAY OF FEBRUARY 2022

                      BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

  WRIT PETITION NO.23760 OF 2021 (GM-CPC)

BETWEEN:

SHIVARUDRAIAH
AGED ABOUT 80 YEARS
S/O LATE BYRANNA
R/AT SY. No. 64/4
KADABAGERE VILLAGE, DASANAPURA HOBLI,
BENGALURU NORTH TALUK
BENGALURU - 562130.
                                    ...PETITIONER
(BY SRI. C M NAGABUSHANA, ADVOCATE)

AND:

1.     SMT. CHANDRAMMA
       W/O LATE NEELAKANATAIAH
       AGED ABOUT 62 YEARS

2.     DAYANANDA MURTHY
       S/O LATE NEELAKANATAIAH
       AGED ABOUT 45 YEARS

3.     SMT. PUSHPALATHA
       AGED ABOUT 38 YEARS
       D/O LATE NEELAKANTAIAH
                          2




     RESPONDENTS 1 TO 3 ARE RESIDING AT
     KADABAGERE VILLAGE, DASANAPURA HOBLI,
     BENGALURU NORTH TALUK,
     BENGALURU - 562 130.

4.   K. M. MASTHI KARI GOWDA
     AGED ABOUT 42 YEARS
     S/O SRI. MASTHI GOWDA
     R/AT No. 40, 4TH CROSS, 1ST MAIN
     NAGARAHOLE NAGARA, HEROHALLI DAKALE
     VISHWANEEDAM POST
     BENGALURU - 560091.
                                      ....RESPONDENTS

(BY SRI. HARSHA KUMAR GOWDA H.R., ADVOCATE
    FOR C/R-2)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO
SET ASIDE THE IMPUGNED ORDER DATED 18.11.2021
VIDE ANNX-F PASSED IN R.A.NO.101/2021, ON I.A. V BY
THE LEARNED VIII ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BANGALORE RURAL DISTRICT, BANGALORE AND
THEREBY ALLOW THE APPLICATION IN I.A.NO.V FILED BY
THE PETITIONER IN R.A.NO.101/2021, ON I.A.V ON THE
FILE OF LEARNED VIII ADDITIONAL DISTRICT AND
SESSIONS   JUDGE,   BANGALORE     RURAL   DISTRICT,
BANGALORE, THEREBY DISMISS THE APPEAL FILED BY
THE RESPONDENTS IN R.A.NO.101/2021, ON THE FILE OF
LEARNED VIII ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BANGALORE RURAL DISTRICT, BANGALORE.

     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 31.01.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
                                   3




                             ORDER

The petitioner aggrieved by the order dated

18.11.2021 passed on I.A.V in R.A.No.101/2021 by

the VIII Additional District and Sessions Judge,

Bengaluru Rural District, Bengaluru has filed this writ

petition.

2. Brief facts leading rise to filing of this petition

are as under:

Petitioner filed a suit in O.S.No.592/2014 for the

relief of declaration and injunction against the

husband of respondent No.1 and father of respondents

No.2 and 3, Sri Neelakantaiah. The Trial Court partly

decreed the suit and granted a decree for permanent

injunction and dismissed the suit in respect of the

relief of declaration of ownership vide judgment and

decree dated 2.4.2016.

2.1. The petitioner, being aggrieved by the

dismissal of the suit insofar as the relief of declaration

of ownership, filed appeal in R.A.No.140/2019 on the

file of VI Additional District and Sessions Judge,

Bengaluru Rural. The Appellate Court dismissed the

appeal and confirmed the judgment and decree

passed by the Trial Court insofar as the relief of

declaration. The respondents, being aggrieved by the

judgment granting a decree for permanent injunction

by the Trial Court in the aforesaid suit, filed appeal in

R.A.No.101/2021.

2.2. In the said appeal, the petitioner herein filed

I.A.V to dismiss the appeal on the ground that the

judgment passed by the Trial Court is merged into the

judgment and decree passed in R.A.No.140/2019. In

support of the application, the petitioner filed an

affidavit admitting about filing of the suit in

O.S.No.592/2014 and the same was partly decreed.

2.3. It is contended by the petitioner that the

petitioner preferred an appeal against the judgment

and decree passed by the Trial Court. The Appellate

Court dismissed the appeal filed by the petitioner.

The respondents preferred appeal in R.A.No.101/2021

against granting permanent injunction and it is

contended that the appeal filed by the respondents is

not maintainable in view of the merger of the decree

passed by the Trial Court in R.A.No.140/2019. Hence,

prayed to allow the application.

2.4. The said application is opposed by the

respondents by filing statement of objections. It is

contended that the Trial Court has not decreed the

suit in its entirety. The Trial Court dismissed the suit

insofar as the relief of declaration is concerned and

insofar as permanent injunction is concerned, suit is

decreed. The petitioner challenged only the portion of

the judgment and decree insofar as dismissal of the

suit for the relief of declaration and the same is

confirmed by the Appellate Court in R.A.No.140/2019.

It is further contended that insofar as permanent

injunction granted by the Trial Court is concerned, the

respondents have filed appeal in R.A.No.101/2020 and

it is further contended that the question of merger

does not arise for consideration. Hence, prayed to

reject I.A.V filed by the petitioner. The Trial Court

after hearing the parties, rejected the application.

Hence, the writ petition.

3. Heard learned counsel for petitioner and

learned counsel for respondents.

4. Learned counsel for the petitioner submits

that the judgment and decree passed by the Trial

Court merges into the judgment and decree passed by

the Appellate Court in R.A.No.140/2019. He further

submits that the appeal filed by the respondents is not

maintainable as they have no right to challenge the

same in another appeal. He further submits that the

Trial Court committed an error in rejecting the

application filed by the petitioner. In order to buttress

his argument, he has placed reliance on the following

citations :

1. M/S Kothari Industrial Corporation Ltd., V. The Agricultural Income Tax Officer (ILR 1998 KAR 1510);

2. Kunhaymmeh and Others V.

State of Kerala and another (AIR 2000 Supreme Court 2587);

3. Surinder Pal Soni V. Sohan Lal (Dead) Through Legal Representatives (2020) 15 Supreme Court 771

Hence on these grounds he prays to allow the

writ petition.

5. Per contra, learned counsel for the

respondents submits that the petitioner filed the suit

for declaration and permanent injunction. The Trial

Court granted a decree for permanent injunction and

refused to grant the relief of declaration. He further

submits that the petitioner aggrieved by the portion of

the judgment refusing to grant the relief of declaration

filed appeal in R.A.No.140/2019. The said appeal

came to be dismissed vide judgment and decree dated

9.3.2020. He further submits that the appeal filed by

the respondents i.e. R.A.No.101/2021 is maintainable.

He further submits that the subject matter of

R.A.No.140/2019 is only in respect of declaration and

not in respect of the relief of permanent injunction.

He further submits that the judgment and decree

passed in the suit does not merge into the judgment

and decree passed in R.A.No.140/2019. He further

submits that the Trial Court is justified is rejecting the

application-I.A.V filed by the petitioner. Hence, on

these grounds he prays to dismiss the writ petition.

6. Perused the records and considered the

submissions made by learned counsel for the parties.

7. The petitioner filed a suit for declaration and

injunction. The Trial Court decreed the suit of the

petitioner in part and granted the decree for

permanent injunction and dismissed the suit insofar as

the relief of declaration is concerned. The petitioner

filed appeal in respect of dismissing the suit for the

relief of declaration in R.A.No.140/2019. The Appellate

Court dismissed the appeal filed by the petitioner. It

is submitted that the petitioner being aggrieved by the

judgment and decree passed in R.A.No.140/2019,

preferred second appeal before this Court which is

pending for consideration. The Appellate Court while

disposing of the appeal in R.A.No.140/2009 has made

a stray observation that "on the basis of material

available on record, the possession of the suit

schedule property by the plaintiff can be considered as

evidence by the appellant remains unchallenged. The

Trial Court has given proper reasons which does not

require interference."

     8.     The   judgment           and     decree   passed      in

R.A.No.140/2019 has not attained finality. The                 legal

representatives     of        the    original   defendant      have

preferred    appeal      in    R.A.No.101/2021        challenging

decree for permanent injunction and filed application

seeking leave of the Court to prefer and prosecute the

appeal. Respondent No.4 has also filed an application

I.A.3 seeking leave of the Court to prefer and

prosecute the appeal along with respondent Nos.1

to 3.

9. From the perusal of the judgment passed in

R.A.140/2019, the Trial Court has considered insofar

as the relief of declaration is concerned, but portion

of the decree for permanent injunction was left intact

and untouched in R.A.No.140/2019.

10. There is no merger of the part of the decree