Sri Annappa vs Smt S Rukmini
2022 Latest Caselaw 8957 Kant

                              1



     IN THE HIGH COURT OF KARNATAKA, BENGALURU

         DATED THIS THE 16TH DAY OF JUNE, 2022

                          BEFORE

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

                R.F.A.No.1020 OF 2016 (INJ)
BETWEEN
1.     SRI.ANNAPPA
       S/O.SRI.NARASIMHAIAH
       AGED ABOUT 46 YEARS
2.     SMT.GANGAMMA
       W/O.SRI.ANAPPA
       AGED ABOUT 40 YEARS

3.     SRI.SUBBAIAH
       S/O.SRI.VENKATAPPA
       AGED ABOUT 50 YEARS
       SINCE DECEASED BY HIS LRS
       (A)   SMT.ANNAMMA
             D/O.LATE SRI.SUBBAIAH
             AGED ABOUT 35 YEARS
       (B)   SMT.NAGAMMA
             D/O.LATE SRI.SUBBAIAH
             AGED ABOUT 25 YEARS
       (C)   SMT.VENKATALAKSHMI
             D/O.LATE SRI.SUBBAIAH
             AGED ABOUT 20 YEARS
       ALL ARE RESIDINGH AT
       NEAR SAPTHAGIRI SCHOOL
       12TH MAIN, 7TH CROSS
       RAGHAVENDRA BLOCK, SRINAGARA
       BENGALURU-560 050

4.     SMT.SUBBAMMA
       W/O.SRI.SUBBAIAH
       AGED ABOUT 45 YEARS
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5.   SRI.CHOWDAIAH
     S/O.SRI.SUBBARAYAPPA
     AGED ABOUT 40 YEARS
     SINCE DECEASED BY HIS LRS
     A)    SRI.SURESH
           S/O.LATE SRI.CHOWDAIAH
           AGED ABOUT 20 YEARS
     B)    KUM.ANITHA
           D/O.LATE SRI.CHOWDAIAH
           AGED ABOUT 17 YEARS
     C)    KUM.KAVITHA
           D/O.LATE SRI.CHOWDAIAH
           AGED ABOUT 14 YEARS
     SINCE THE APPLICANTS 2 AND 3 ARE
     MINORS REPRESENTED BY THEIR
     MOTHER AND NATURAL GUARDIAN
     SMT.VENKATALAKSHMI
     W/O.LATE SRI.CHOWDAIAH,
     AGED ABOUT 37 YEARS
     WHO IS ALREADY ON
     RECORD AS APPELLANT NO.5

     ALL ARE RESIDING AT
     NEAR SAPTHAGIRI SCHOOL
     12TH MAIN, 7TH CROSS
     RAGHAVENDRA BLOCK, SRINAGARA
     BENGALURU-560 050

6.   SMT.VENKATALAKSHMI
     W/O.SRI.CHOWDAIAH
     AGED ABOUT 36 YEARS

     ALL ARE RESIDING AT
     NEAR SAPTHAGIRI SCHOOL
     12TH MAIN, 7TH CROSS
     RAGHAVENDRA BLOCK, SRINAGAR
     BANGALORE-560 050
                                        ...APPELLANTS
(BY SRI.S.MOHAN, ADVOCATE)
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AND

SMT.S.RUKMINI
W/O.SRI.KEMPEGOWDA
AGED ABOUT 51 YEARS
RESIDING AT NO.462
4TH MAIN, DHOBI GHAT
BRINDAVAN NAGAR
BANGALORE-560 019
                                                  ...RESPONDENT
(BY SRI.K.N.NITISH, ADVOCATE)


       THIS APPEAL IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 14.01.2016 PASSED
IN O.S.NO.8567/2012 ON THE FILE OF THE X ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-26), DECREEING THE SUIT
FOR PERMANENT INJUNCTION AND ETC.

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


                          JUDGMENT

This appeal by the defendants in O.S.No.8567/2012 is

directed against the impugned judgment and decree dated

14.01.2016 passed by X Addl.City Civil and Sessions Judge,

Bangalore, whereby the said suit for permanent injunction and

other reliefs filed by the respondent - plaintiff in respect of the

suit schedule immovable property was decreed in her favour

by the trial court.

2. The material on record discloses that the

respondent filed the aforesaid suit for permanent injunction

and other reliefs restraining the appellants - defendants from

interfering with her possession and enjoyment of the suit

schedule property inter-alia contending that she has

purchased the same vide registered sale deed dated

28.04.2002 executed by her vendor - Hanumantharayappa

represented by his GPA Holder Smt.Lalithabai and that the

said Hanumantharayappa had acquired the suit schedule

property vide registered sale deed dated 20.03.1983. It was

contended that pursuant to acquiring the suit schedule

property, the respondent had got the khata registered into her

name and was paying taxes and since the appellants along

with their supporters etc., attempted to interfere with the

respondent's possession and enjoyment of the property, the

said suit was filed before the trial court.

3. The appellants - defendants contested the suit

repudiating the claim of title and possession of the respondent

over the suit schedule property as well as all other contentions

and documents put forth by the respondent. So also, the

appellants disputed and denied the location, identity,

measurements and boundaries of the suit schedule property

and sought for dismissal of the suit by contending that they

have been residing in the property for more than 35 years and

that the property was a slum which was under rehabilitation by

the State Government since the appellants were downtrodden

and poor persons. It is therefore contended that the suit was

liable to be dismissed.

4. After hearing the parties, the trial court framed the

following issues for consideration:-

1. Whether the plaintiff proves that she is in lawful possession of the plaint schedule property as on the date of suit?

2. Whether the plaintiff further proves the alleged interference of defendants?

3. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?

4. What decree or order?

5. During trial, the respondent examined herself as

PW-1 and documents at Exs.P1 to P13 were marked, whilst,

1st defendant examined himself as DW-1 and Exs.D1 and D2

were marked on their behalf. After hearing both sides, the trial

court proceeded to decree the suit in favour of the respondent

against the appellants who are before this Court by way of the

present appeal.

6. Heard learned counsel for the appellants and learned

counsel for the respondents and perused the material on

record.

7. In addition to reiterating the various contentions

urged in the appeal and referring to the material on record,

learned counsel for the appellants submit that the trial court

committed an error in coming to the conclusion that the

respondent was in possession and enjoyment of the suit

schedule property. In this context, it was submitted that the

trial court failed to notice that the respondent had not

produced the alleged power of attorney said to have been

executed by Hanumantharayappa in favour of Smt.Lalithabai

who had executed the alleged sale deed dated 28.04.2004 in

favour of the respondent and consequently, in the absence of

any material to establish that the said Smt.Lalithabai was

empowered and authorised to execute the said sale deed, the

same cannot be relied upon to come to the conclusion that the

respondent had acquired title or possession over the suit

schedule property. It was also submitted that there was a

serious dispute with regard to location and identity of the suit

schedule property and in that regard, the appellants had filed

an application dated 05.04.2013 under Order 26 Rule 9 CPC

for appointment of a court commissioner to conduct local

inspection and the said application having not been disposed

of by the trial court, which did not pass any orders on the

same, the trial court erred in proceeding to pass the impugned

judgment and decree which is vitiated on this ground alone. It

is therefore contended that in view of several other infirmities

and errors contained in the impugned judgment and decree,

the same deserves to be set aside by this Court in the present

appeal.

8. Per contra, learned counsel for the respondent would

support the impugned judgment and decree and submits that

the same does not warrant interference by this Court in the

present appeal. He however does not dispute that the

appellants had indeed filed an application dated 05.04.2013

under Order 26 Rule 9 CPC for appointment of a court

commissioner which had not been disposed of by the trial

court prior to passing the impugned judgment and decree. It

is also contended that in view of the specific contention urged

by the appellants that the registered GPA dated 02.09.1996

had not been produced by the respondent before the trial

court, out of abandoned caution, the respondent has produced

the same and other documents by way of additional evidence

along with I.A.1/2022 and has contended that despite exercise

of due diligence, it was not possible for the respondent to

produce the same before the trial court. Along with I.A.1/2022,

the respondent has also produced the certified copy of the

sale deed dated 20.12.1983 executed in favour of the

respondent's vendor Hanumantharayappa. It is therefore

contended that the material on record as well as the

documents produced by the respondent by way of additional

evidence were sufficient to establish the title, possession and

identity of the suit schedule property as being owned by the

respondent and consequently, there is no merit in the appeal

and the same is liable to be dismissed.

9. The following points arise for consideration in the

present appeal:-

(i) Whether the respondent has made out sufficient

grounds to allow I.A.1/2022 filed under Order 41 Rule 27 CPC

for permission to produce additional evidence?

(ii) Whether the impugned judgment and decree passed

by the trial court warrants interference in this appeal?

Re-Point Nos. 1 and 2:-

10. The material on record discloses that there was a

serious dispute with regard to location and identity of the suit

schedule property and in that regard, the appellants had filed

an application on 05.04.2013 under Order 26 Rule 9 CPC for

appointment of a court commissioner to conduct local

inspection of the suit schedule property and to submit his

report. The said application was not disposed of and

remained pending consideration at the time of disposal of the

suit by the trial court which neither adverted to the said

application nor passed any orders on the same. Under these

circumstances, I am of the considered opinion that this

procedural irregularity and impropriety committed by the trial

court in not passing any orders on the said application for

appointment of court commissioner filed by the appellants is

clearly an error apparent on the face of the record and the

same vitiates the impugned judgment and decree.

10.1 The material on record also discloses that the

specific contention urged by the appellants that Smt.Lalithabai

who is said to be the GPA Holder of Hanumantharayappa was

not entitled or empowered or authorised to execute the sale

deed dated 28.04.2004 in favour of the respondent, in the

absence of the said GPA being produced had not been

considered or appreciated by the trial court; in order to

establish that Smt.Lalithabai was indeed the GPA Holder of

Hanumantharayappa and to establish his title and possession,

respondent has filed I.A.1/2022 seeking permission to produce

the said documents.

10.2 In this context, learned counsel for the appellants

submit that he has no objection for the said I.A.1/2022 to be

allowed and the documents produced along with it to be

received on record, subject to the condition that the impugned

judgment and decree is set aside and the matter is remitted

back to the trial court for reconsideration afresh by providing

an opportunity to the appellants to contest and impeach the

said documents produced by the respondent along with

I.A.1/2022; as stated supra, learned counsel for the appellants

also request for a direction to the trial court to consider and

dispose of the application dated 05.04.2013 filed by the

appellants for appointment of a court commissioner also. The

said submissions of learned counsel for the appellants are

placed on record.

10.3 The aforesaid facts and circumstances and the

rival submissions clearly indicate that apart from the fact that

the trial court had committed a procedural irregularity /

impropriety in not passing any orders on the application dated

05.04.2013 filed by the appellants, in view of I.A.1/2022 filed

by the respondent seeking permission to produce additional

evidence which is seriously disputed by the appellants, for

effective and proper adjudication of the dispute between the

parties and in order to provide sufficient opportunity to both

sides to put forth their respective claims, I deem it just and

proper to set aside the impugned judgment and decree and

remit the matter back to the trial court for reconsideration

afresh in accordance with law.

Point Nos.1 and 2 is answered accordingly.

11. In the result, I pass the following:-

ORDER

(i) Appeal is hereby allowed.

(ii) The impugned judgment and decree dated

14.01.2016 passed in O.S.No.8567/2012 by the X Addl. City

Civil & Sessions Judge, Bangalore, is hereby set aside.

(iii) The matter is remitted back to the trial Court for

reconsideration afresh in accordance with law.

(iv) I.A.No.1/2022 filed by the respondent is also

hereby allowed and documents produced along with the same

are received on record; the Registry is directed to transmit the

said application along with the documents to the trial court.

(v) Both the parties undertake to appear before the trial

Court without further notice on 11.07.2022.

(vi) Since the trial Court did not pass any order on the

application dated 05.04.2013 filed by the appellants under

Order 26 Rule 9 read with Section 151 CPC for appointment

of Court Commissioner, the trial Court is directed to dispose of

the said application also before proceeding in the matter;

(vii) Needless to state that the respondent would be

entitled to file objections to the said application, if not already

filed before the trail court which shall hear both sides and pass

orders in accordance with law.

(viii) Liberty is also reserved in favour of the appellants

and respondent to adduce additional oral and documentary

evidence in support of their respective contentions and both

sides would be entitled to cross-examine the other side and

their witnesses.

(ix) All rival contentions on all aspects of the matter

are kept open and no opinion is expressed on the same.

(x) The trial court is directed to dispose of the suit on

merits as expeditiously as possible and preferably within a

period of six months from 11.07.2022.

Sd/-

JUDGE

SV/SRL