Smt Shantha G H vs Sri Hrudaya Raj
2022 Latest Caselaw 7923 Kant

                              1



     IN THE HIGH COURT OF KARNATAKA, BENGALURU

         DATED THIS THE 1ST DAY OF JUNE, 2022

                         BEFORE

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

               R.F.A.NO.1591 OF 2019 (INJ)
BETWEEN

SMT SHANTHA G.H.
W/O DEVARAJU B.M.
AGED ABOUT 35 YEARS,
R/AT NO.15, 2ND MAIN, 4TH CROSS,
DWARAKANAGAR, CHICKABANAVARA,
HESARAGHATTA ROAD,
BENGLAURU-560 090
                                             ...APPELLANT
(BY SRI.M.J.ALVA, ADVOCATE)

AND

1.     SRI HRUDAYA RAJ
       S/O ARALAPPA,
       AGED ABOUT 56 YEARS,
       R/O VISWANATHA NAGENAHALLI,
       R.T.NAGAR POST,
       BENGALURU-560 032.

2.     SRI.JOKIM
       S/O ARALAPPA
       AGED ABOUT 53 YEARS,
       R/O VISWANATHA NAGENAHALLI,
       R.T.NAGAR POST,
       BENGALURU-560 032.

3.     SRI.ANTHONI
       S/O ARALAPPA,
       AGED ABOUT 52 YEARS,
       R/O VISWANATHA NAGENAHALLI,
                                  2



      R.T.NAGAR POST,
      BENGLAURU-560 032.

4.    SR.BALAVENDRA
      S/O ARALAPPA,
      AGED ABOUT 51 YEARS,
      R/O VISWANATHA NAGENAHALLI,
      R.T.NAGAR POST,
      BENGLAURU-560 032.

5.    SRI.SANDYAGAPA
      S/O ARALAPPA,
      AGED ABOUT 50 YEARS,
      R/O VISWANATHA NAGENAHALLI,
      R.T.NAGAR POST,
      BENGLAURU-560 032
                                         ...RESPONDENTS
(BY SRI R.B.SANGAMESH, ADVOCATE FOR R2 TO R5
    R1 SERVED, UNREPRESENTED)

      THIS APPEAL IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 11.08.2016 PASSED
IN O.S.NO.8993/2013 ON THE FILE OF THE XLIV ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT
FOR PERMANENT INJUNCTION AND ETC.

      THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                              JUDGMENT

This appeal by the unsuccessful plaintiff in

O.S.No.8993/2013 is directed against the impugned judgment

and decree dated 11.08.2016 passed by the XLIV Additional

City Civil and Sessions Judge, Bengaluru (for short "the trial

Court"), whereby the s aid suit for permanent injunction and

other reliefs in respect of the suit schedule property filed by

the appellant-plaintiff against the respondents-defendants was

dismissed by the trial Court.

2. Heard learned counsel for the appellant, learned

counsel for the respondents and perused the material on

record including the impugned judgment and decree.

3. On instructions, learned counsel for the appellant

submits that the parties have amicably settled the dispute in

relation to the immovable property among themselves and the

appellant is aggrieved by that portion of the impugned

judgment and decree only in so far as it relates to the trial

Court directing the impounding of the documents at Exs.P-1 to

3 viz., Sale Deed dated 30.04.2009, General Power of

Attorney dated 22.08.1988 and an affidavit dated 22.08.1988

produced by the appellant-plaintiff.

4. Per contra, learned counsel for the respondents-

defendants also submits that the parties have settled the

dispute between themselves amicably in relation to the suit

schedule property.

5. I.A.No.1/2022 filed by the appellant seeking

return of the aforesaid documents marked as Exs.P-1 to 3 in

the suit before the trial Court. In this context, it is relevant to

state that Exs.P-1 is a registered Sale Deed and sufficient

stamp duty has already been paid on the said document as is

evident from the document itself, which has neither been

referred to the District Registrar nor been impounded on the

ground that it has been under valued and insufficiently

stamped. Under these circumstances, I am of the view that

the trial Court fell in error in coming to the conclusion that

Ex.P-1 having been insufficiently stamped was liable to be

impounded and accordingly, the said finding being recorded

by the trial Court in the impugned judgment and decree with

regard to impounding of the sale deed dated 30.04.2009 at

Ex.P-1 deserves to be set aside.

6. In so far as the General Power of Attorney at

Ex.P-2 and an affidavit at Ex.P-3 both dated 22.08.1988 are

concerned, as rightly contended by learned counsel for the

appellant-plaintiff, the said documents were neither

compulsorily registrable as per the provisions of the

Registration Act, 1908, as it stood prior to amendment to the

said Act; so also, the stamp duty paid on the aforesaid

General Power of Attorney, Ex.P-2 and affidavit at Ex.P-3 is

clearly sufficient in view of the stamp duty payable on the said

document as it stood in 1988 prior to the amendment of the

Karnataka Stamp Act, in the year 1994. Under these

circumstances, I am of the considered opinion that even the

impugned judgment and decree in so far as it relates to

directing impounding of the documents at Exs.P-2 and 3 also

deserves to be set aside. Consequently, I.A.No.1/2022 also

deserves to be allowed by permitting the appellant to take

return of all the three documents at Exs.P-1 to 3.

7. In the result, I pass the following:

ORDER I. The Appeal is partly allowed.

II. The impugned judgment and decree dated

11.08.2016 passed in O.S.No.8993/2013 by the

XLIV Additional City Civil and Sessions Judge,

Bengaluru, is hereby set aside in so far as it relates

to that portion of the judgment and decree which

directs impounding of Exs.P-1 to 3; it is made clear

that the remaining portion of the judgment and

decree is not interfered with in the present appeal.

III. I.A.No.1/2022 is also hereby allowed.

IV. Registry is directed to forthwith transmit the Trial

Court Records as well as this judgment to the trial

Court immediately, so as to enable the appellant-

plaintiff to take return of documents marked as

Exs.P-1 to 3 in O.S.No.8993/2013 from the

Registry of the Trial Court.

SD/-

JUDGE BMC CT:AN