Smt. Eramma vs Sri. Chinappa S/O Muniyappa
2022 Latest Caselaw 9701 Kant

                               1



     IN THE HIGH COURT OF KARNATAKA, BENGALURU

          DATED THIS THE 27TH DAY OF JUNE, 2022

                            BEFORE

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

                 R.F.A.No.956 OF 2003 (DEC)
BETWEEN

1.      SMT. ERAMMA
        W/O LATE SRI.S. MUNIYAPPA
        DEAD.

2.    MUNIYAPPA @ RAMAPPA
      S/O LATE MUNISWAMAPPA
      SINCE BOTH ARE DECEASED, REPRESENTED
      BY THEIR L.R. SRI. R. MUNISWAMY @ PAPANNA
      S/O RAMAPPA AGED ABOUT 46 YEARS
      R/AT : # 14, 1ST CROSS, 1ST BLOCK
      BYRASANDRA, JAYANAGARA EAST
      BENGALURU - 560 011.
                                             ...APPELLANTS
(BY SRI. LAKSHMISH.G., ADVOCATE)

AND

1.      SRI. CHINAPPA S/O MUNIYAPPA
        SINCE DECEASED BY HIS LR'S

1(a)    SIDAPPA, S/O LATE CHINAPPA
        AGED ABOUT 40 YEARS
        R/AT 2ND CROSS, 4TH MAIN, 1ST BLOCK
        JAYANAGAR, BENGALURU - 560 011.

1(b)    MUNIRAJU S/O CHINAPPA
        AGED ABOUT 28 YEARS.

1(c)    GOPALA S/O LATE CHINAPPA
        AGED ABOUT 25 YEARS.
                                 2



       (b) AND (c) RESIDING AT # 12,
       2ND CROSS, BYRASANDRA, JAYANAGARA EAST
       BENGALURU - 560 011.

2.     SRI. VENKATAPPA
       S/O MUNIYAPPA
       SINCE DEAD BY HIS LR'S

2(a)   SMT. VENKATAMMA
       WIDOW OF VENTAKATAPPA
       AGED ABOUT 65 YEARS.

2(b)   V. NAGARAJ
       S/O LATE VENKATAPPA
       SINCE DECEASED BY HIS LR'S.

b(1)   SMT. PUTTAMMA
       W/O LATE V. NAGARAJ
       MAJOR.

b(2)   KUM. LAKSHMI D/O LATE . V. NAGARAJ
       AGED ABOUT 17 YEARS.

b(3)   KUM. KAVITHA D/O LATE V. NAGARAJ
       AGED ABOUT 15 YEARS.

b(4)   MASTER TULASI S/O LATE V. NAGARAJ
       AGED ABOUT 13 YEARS.

b(5)   MASTER UDAY
       S/O LATE V. NAGARAJ
       AGED ABOUT 11 YEARS.

       THE RESPONDENTS FROM 2(b) (2) TO 2(b) (5)
       ARE MINORS, REPRESENTED BY THEIR MOTHER
       SMT. PUTTAMMA, W/O LATE V. NAGARAJ.

3.     VENKATESH S/O MUNIYAPPA
       AGED ABOUT 38 YEARS

       THE RESPONDENTS 2(a) 2(b) (1) to
       2(b) (5), AND 3 ARE RESIDING AT
       BYRASANDRA, 1ST BLOCK EAST
       JAYANAGAR, BENGALURU - 560 011.
                               3



4.    SMT. KANNAMMA
      GRAND DAUGHTER OF KODANDARAMA MODALIYAR
      MAJOR, R/AT: LODALYA # 54,
      SARBANDEPALYA, BANASHANKARI LAYOUT
      BENGALURU - 560 018.
                                       ...RESPONDENTS

(BY SRI. K.P. BHUVAN, ADVOCATE FOR R-4
    SRI. MADHUKAR NADIG, ADVOCATE FOR R-5
    R1(A) R2(B) - DECEASED, R2B(1) - SERVED
    R-2 (B) (2-5) ARE MINORS REPRESENTED BY R-2(B) (1)
    V/O DATED: 20.07.2006, R-1(B &C), R-2(A) & R(3)
    NOTICE H/S., V/O DATED: 23.09.2019 NOTICE TO
     R-1(A) IS H/S.)

      THIS APPEAL IS FILED UNDER ORDER 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED: 25.03.2003 PASSED IN
O.S.NO. 2367/1984 ON THE FILE OF THE 12TH ADDL. CITY CIVIL
JUDGE, BENGALURU, (CCH- 27) DIMISSING THE SUIT FOR
DECLARATION AND POSSESSION.


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


                         JUDGMENT

This appeal by the unsuccessful plaintiffs in

O.S.No.2367/1984 is directed against the impugned judgment

and decree dated 25.03.2003 passed by the XII Addl. City

Civil Judge, Bangalore, whereby the said suit filed by the

appellants - plaintiffs for declaration of title, possession and

other reliefs in respect of the suit schedule immovable

property was dismissed by the trial court.

2. Heard learned counsel for the appellants and

learned counsel for the respondents and perused the material

on record.

3. The material on record discloses that the

appellants - plaintiffs are the wife and son of one late

Muniswamappa, who had six brothers including defendants 1

to 3 namely Chinnappa, Venkatappa and Venkatesh

respectively. The other brothers and sisters of the said

Muniswamappa have not been arrayed as parties to the suit,

which includes the 4th defendant, who said to be an alienee in

respect of a portion of the suit schedule property, which is

described as 'vacant site' situated in Sy.No.4/A1, Byrasandra,

I Block East, Jayanagar, Bangalore - 11, measuring 120ft x

100ft.

4. The said suit was contested by the defendants,

who filed their written statement denying and repudiating the

claim of the plaintiffs, pursuant to which, the trial court framed

the following issues:-

"1. Whether plaintiffs have acquired title to the suit site by non-performance of the condition of the decree?

2. Whether the defendants No.1 to 3 have acquired title by adverse possession?

3. Whether the suit of plaintiff is barred by Sec.11 or Ord. 2 R.2 of CPC?

4. Whether the suit property is properly valued for the Court fee?

5. Whether the plaintiffs are entitle for declaration of title sought for?

6. Whether the plaintiffs are entitled for possession prayed for?

7. For what relief the parties are entitled? Issue No. 5 to be heard as preliminary issue."

5. On behalf of the plaintiffs, plaintiff No.2's son was

examined as PW-1 and Exs.P1 to P31 were marked. On

behalf of the defendants, Sri. Gopal - defendant No.1(c) was

examined as DW-1 and Exs.D1 to D8 were marked. After

hearing the parties, the trial court proceeded to negative the

claim of the plaintiffs with regard to title, possession and

identity of the suit schedule property and passed the

impugned judgment and decree dismissing the suit, aggrieved

by which, the appellants are before this Court by way of the

present appeal.

6. During the pendency of the appeal, the appellants

have filed two applications viz., I.A.2/2021 filed under Order

41 Rule 27 CPC for production of additional documents and

also I.A.1/2021 under Order 26 Rule 9 CPC seeking

appointment of a Court commissioner to conduct local

inspection in respect of the suit schedule property.

So also, Smt.Injulamma @ Injula claiming to be the

daughter of late Kaverappa has filed an application Under

Order 1 Rule 10(2) CPC seeking impleadment as additional

respondent No.5 to the present appeal. She contends that her

father Kaverappa was one of the brothers of late

Muniswamappa, whose wife and son are none other than the

plaintiffs in the suit. The said application is opposed by the

appellants, who contend that the impleading applicant is

neither a proper nor necessary party to the suit or the appeal.

7. Both sides as well as the impleading applicant

have urged several contentions in support of their respective

claims.

8. The only point that arises for consideration in the

present appeal is, whether I.A.1/2021, I.A.2/2021 and

I.A.No.2/2022 deserve to be allowed and if so, whether the

impugned judgment and decree passed by the trial court

warrants interference in the present appeal?

9. A perusal of the impugned judgment and decree

will indicate that the trial court has negatived the claim of the

appellants as regards title, possession and identity of the suit

schedule property as claimed by them. In this context, the

documents produced along with I.A.No.2/2021 filed by the

appellants for permission to adduce additional evidence will

clearly indicate that the said documents are relevant and

material for the purpose of adjudication of the issues in

controversy between the parties and for disposal of the

present appeal. Further, the Affidavit in support of the

application discloses valid and sufficient ground being made

out by the appellants as to why the additional evidence could

not be produced by them before the trial court, despite

exercise of due diligence. Under these circumstances,

adopting a justice oriented approach and for the purpose of

resolving the dispute between the parties, I am of the

considered view that the appellants are to be permitted to

produce additional evidence as sought for in I.A.2/2021 and

consequently, the said application is hereby allowed.

10. Insofar as the application I.A.1/2021 filed by the

appellants under Order 26 Rule 9 CPC for appointment of a

Court commissioner to conduct local inspection of the suit

schedule property is concerned, as stated supra, the trial court

has recorded a finding that the appellants - plaintiffs have

failed to establish the identity and location of the suit schedule

property as claimed by them. The trial court records indicate

that no court commissioner was appointed for the purpose of

conducting a local inspection during the course of the

proceedings. Further, the material on record also indicates

that in the light of the rival contentions, the appointment of a

Court Commissioner is necessary and essential to adjudicate

upon the issues in controversy and to identify and locate the

suit schedule property. Under these circumstances, I am of

the view that the request made by the appellants for

appointment of a court commissioner deserves to be accepted

and accordingly, I.A.1/2021 is also hereby allowed.

11. Having allowed I.A.1/2021 for appointment of a

court commissioner and I.A.2/2021 permitting additional

evidence, having regard to the comprehensive nature of reliefs

sought for in the suit and the disputes in controversy between

the parties, I deem it just and appropriate to set aside the

impugned judgment and decree and remit the matter back to

the trial court for reconsideration afresh in accordance with

law.

12. Insofar as I.A.2/2022 filed by the impleading

applicant is concerned, the impleading applicant claims to be

the daughter of late Kaverappa, brother of late

Muniswamappa, whose wife and son are none other than the

plaintiffs. However, the alleged relationship of the impleading

applicant with Kaverappa and the alleged relationship of

Kaverappa with late Muniswamappa and the plaintiffs is

seriously disputed by the appellants - plaintiffs who

specifically contend that the impleading applicant who was

undisputedly not a party to the suit, is neither a proper or

necessary party to the present appeal also, particularly when

no relief is sought for by the appellants - plaintiffs against the

impleading applicant.

13. In view of the aforesaid rival contentions urged by

both sides and in the light of the undisputed fact that neither

the impugned judgment and decree nor the judgment and

decree to be passed by the trial court afresh, after remand as

directed by this order, without expressing any opinion on the

merits / demerits of the rival contentions, I.A.2/2022 is

disposed of making it clear that the present proceedings and

appeal arising out of O.S.No.2367/1984 and any order /

judgment / decree passed in the same including the present

order of remand will not be binding upon the impleading

applicant nor affect the rights and contentions of any of the

parties in any proceedings and by reserving liberty in favour of

the impleading applicant to take recourse to such remedies as

available in law.

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

ORDER

(i) Appeal is hereby allowed.

(ii) The impugned judgment and decree dated

23.05.2003 passed in O.S.No.2367/1984 by the XII Addl. City

Civil 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.2/2021 filed by the appellants under Order 41

Rule 27 CPC is hereby allowed and the documents produced

along with the same are received on record. Registry is

directed to transmit I.A.2/2021 along with the documents

produced by the appellants to the trial court.

(v) I.A.1/2021 filed by the appellants under Order

XXVI Rule 9 CPC is allowed. The trial Court is directed to

take necessary steps to appoint a Court Commissioner as

sought for in I.A.1/2021 and proceed further in accordance

with law.

(vi) I.A.2/2022 filed by the impleading applicant is

disposed of, making it clear that the present proceedings and

appeal arising out of O.S.No.2367/1984 and any order /

judgment / decree passed in the same including the present

order of remand will not be binding upon the impleading

applicant nor affect the rights and contentions of any of the

parties in any proceedings and by reserving liberty in favour of

the impleading applicant to take recourse to such remedies,

as available in law; it is however made clear that the

impleading applicant in I.A.2/2022 will not be entitled to seek

impleadment in O.S.No.2367/1984 and any order, judgment,

decree, etc., passed in the said suit pursuant to this remand

order will not be binding upon the impleading applicant nor

affect her rights or contentions.

(vii) All rival contentions between the parties are kept

open and no opinion is expressed on the same.

(viii) Parties undertake to appear before the trial Court

on 25.07.2022 without awaiting further notice from the trial

Court.

(ix) In view of the fact that the suit is of the year 1984,

the trial Court is directed to take up the same on priority basis

and dispose of the same as expeditiously as possible in

accordance with law; needless to state that all parties will

cooperate with the trial Court for early disposal of the suit.

Sd/-

JUDGE

Srl.