Sri B P Prakash Murthy vs Smt C L Annapoorna
2022 Latest Caselaw 5441 Kant

                          1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 25TH DAY OF MARCH, 2022

                        BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

           R.S.A. NO. 137 OF 2018 (DEC/INJ)

BETWEEN:

SRI B P PRAKASH MURTHY
S/O. LATE. PUTASWAMACHAR,
AGED ABOUT 55 YEARS,
R/AT D. NO. 318/D9,
D. SUBBAIAH ROAD,
DEVARAJA MOHALLA,
MYSORE-570 001.
                                           ...APPELLANT

[BY SRI. V.F. KUMBAR, ADVOCATE (THROUGH VC)]

AND:

1.     SMT C L ANNAPOORNA
       W/O. K SHEKAR,
       AGED ABOUT 55 YEARS.

2.     SRI. K SHEKAR
       S/O. B KUPPASWAMY,
       AGED ABOUT 65 YEARS.

3.     SRI. S S VIDYASAGAR
       S/O. K SHEKAR
       AGED ABOUT 32 YEARS.

4.     SRI. S S SRINIDI
       D/O. K SHEKAR
       AGED ABOUT 28 YEARS.
                             2




RESPONDENTS NO.1 TO 4 ARE
R/AT D.NO. 46/103,
III STREET, TATABAD,
COIMBATORE-641012
TAMIL NADU STATE.

5.     K V CHENNAIAH
       S/O. LATE. VENKATASUBBIAH,
       AGED ABOUT 68 YEARS,
       D.NO. 247, 'A' BLOCK,
       III STAGE, VIJAYANAGAR,
       MYSORE-570017.
                                           ...RESPONDENTS

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 06.09.2017 PASSED IN R.A.NO.102/2017 ON
THE FILE OF THE III ADDITIONAL DISTRICT JUDGE., MYSURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT
AND DECREE DATED 09.09.2016 PASSED IN OS.NO. 1257/2008
ON THE FILE OF THE III ADDITIONAL I CIVIL JUDGE AND
JMFC., MYSURU.

     THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal is filed by the unsuccessful plaintiff

challenging the concurrent finding of fact recorded by both

the Courts that he is not entitled for a declaration of his

title in respect of the suit property and that he is not

entitled for a declaration and that the decree passed in

O.S. No.333/1992 and O.S. No.530/1998 does not bind

him.

2. The parties shall henceforth be referred as

they were arrayed before the Trial Court.

3. The suit in O.S. No.1257/2008 was filed for

declaration that the decree of specific performance

obtained by defendant No.1 in O.S. No.333/1992 and the

consequent decree of recovery of possession in O.S.

No.530/1998 did not bind the right, title and interest of the

plaintiff in the suit schedule property. The plaintiff claimed

that the suit property was owned and possessed by

Meenakshamma, who had executed a power of attorney in

favour of her son D.Venkatesh who conveyed it to

Tabassum in terms of a sale deed dated 16.06.1965.

Later, she sold it to the plaintiff on 09.04.1997. The

plaintiff claimed that from the date of purchase, he was in

possession and enjoyment of the suit property and was

running Electro Plating works in a portion of the suit

schedule property and was residing in the hind portion of

the same and had let out small portion to a tenant. He

claimed that the defendant No.1 had filed a suit for specific

performance in O.S. No.333/1992 against Mr.D.Venkatesh

and others based on an agreement of sale which was

decreed. Consequent thereto, the defendant No.1 filed

Execution Petition No.134/1998 and obtained a sale deed

in her name through the Court. The defendant No.1 did

not recover possession of the suit property through the

Executing Court but thereafter filed O.S. No.530/1998

against the plaintiff and others for declaration of title and

recovery of possession. The said suit was decreed. The

plaintiff herein contended that the notice in O.S.

No.530/1998 was not served on him and he filed Misc.

No.48/2007 for setting aside the ex parte decree. Since

the defendant No.1 attempted to dispossess the plaintiff,

he filed the present suit for declaration that he is the

owner of the suit property and for injunction to restrain the

defendants from alienating the suit property and for

interfering with his possession. He also sought for a

declaration that the decree passed in O.S.No.333/1992

and O.S.No.530/1998 did not bind him.

4. The defendants No.1 and 2 contested the suit

and claimed that the defendant No.1 purchased the suit

property in terms of an agreement of sale dated

28.11.1988 from Meenakshamma and her children.

Subsequently, she purchased the share of Venkatesh, son

of Meenakshamma on 22.02.1989 in terms of two sale

deeds and that she was placed in possession of the

property. She alleged that though Venkatesh received the

sale consideration and executed the sale deed, he did not

admit the execution before the Sub-Registrar and did not

register it. Therefore, a suit in O.S. No.333/1992 was filed

against D. Venkatesh and one Doddegowda for specific

performance of the unregistered sale deed dated

22.02.1989. The suit was decreed and said Venkatesh was

directed to execute a deed of sale. Thereafter, the said

Venkatesh and Doddegowda trespassed into the suit

property and were in unauthorised possession. The

defendants claimed that the plaintiff was a total stranger

to the property and since he claimed that he had

purchased the property from Tabassum, who had earlier

purchased from the son of Meenakshamma, the plaintiff

filed O.S. No.530/1998 for recovery of possession which

was decreed. The defendants No.1 and 2 claimed that the

plaintiff was served in O.S. No.530/1998 and therefore the

decree passed therein was binding upon the plaintiff.

5. Based on these rival contentions, the Trial

Court framed the following issues :

i. Whether the plaintiff proves that he is the absolute owner in possession of the suit schedule property?

ii. Whether the plaintiff proves that alleged interference by the defendants?

iii. Whether the defendant prove that they are the absolute owners of the suit schedule property by virtue of sale through Court?

iv. Whether the defendants prove that this Court has no pecuniary jurisdiction to try the suit? v. Whether the defendants further prove that the judgment and decree passed in O.S.

No.530/1998 and binding on the plaintiff? vi. Whether the plaintiff is entitled for the relief as sought for?

vii. What order or decree?

6. The plaintiff was examined as P.W.1, who

marked documents as Exs.P-1 to P-12. The defendant

No.5 was examined as D.W.1 and defendant No.1 was

examined as D.W.2 and they marked documents at

Exs.D-1 to D-23.

7. Based on the oral and documentary evidence,

the Trial Court held that the plaintiff had failed to prove

that he was not served with the notice of the proceedings

in O.S. No.530/1998. It noticed that Misc.No.48/2007

filed by the plaintiff for setting aside the ex parte decree in

O.S. No.530/1998 was dismissed. Hence, the Trial Court

dismissed the suit in terms of its Judgment and Decree

dated 09.09.2016.

8. Feeling aggrieved by the aforesaid Judgment

and Decree, the plaintiff filed R.A. No.102/2017. The First

Appellate Court noticed the oral and documentary evidence

and framed points for consideration and after hearing the

learned counsel for the parties held that the plaintiff was a

party to O.S. No.530/1998 and that the said suit was

decreed. An attempt by the plaintiff for setting aside this

decree in Misc.No.48/2007 was dismissed. Therefore, the

First Appellate Court held that the plaintiff had failed to

prove that he had a better right to the suit property than

the defendants No.1 and 2 and hence dismissed the

appeal.

9. Feeling aggrieved by the aforesaid, the present

Regular Second Appeal is filed.

10. The learned counsel for appellant/plaintiff

submitted that the plaintiff was not served with the suit

summons in O.S. No.530/1998 and he was not a party in

O.S. No.333/1992 and therefore the decrees passed

therein did not bind the plaintiff. The learned counsel

contended that the plaintiff had purchased the suit

property on 09.04.1997 and that the defendants No.1 and

2 did not take any steps to implead the plaintiff in O.S.

No.333/1992. However, the learned counsel fairly

conceded that Misc.No.48/2007, which was filed for setting

aside the decree in O.S.No.530/1998 was dismissed and

the same was questioned before this Court in C.R.P.

No.494/2015 which too was dismissed.

11. The learned counsel submitted that the

Execution Petition filed by defendants No.1 and 2 in E.P.

No.41/2007 is pending consideration and therefore, the

plaintiff may be permitted to urge all the contentions

before the Executing Court.

12. The facts as stated above would indicate that

the plaintiff has purchased the property in question on

09.04.1997 which was during the course of the

proceedings in O.S. No.333/1992. Though the plaintiff

was served with the notice of the suit in O.S.

No.530/1998, he did not contest the same and did not

take any defence as are permitted under law. An attempt

made by the plaintiff for setting aside the decree in O.S.

No.530/1998 in Misc.No.48/2007 was rejected and

thereafter was confirmed by this Court in C.R.P.

No.494/2015. Therefore, as on date, the defendants No.1

and 2 have obtained an absolute deed of sale pursuant to

the decree passed in O.S. No.333/1992 and have also

obtained a decree for recovery of possession in O.S.

No.530/1998. If that be so, the plaintiff cannot contend

that he has any better right, title or interest over the suit

schedule property. The Trial Court and the First Appellate

Court have considered the same in right perspective based

on the oral and documentary evidence. Hence, there is no

necessity to interfere with the finding of fact recorded by

both the Courts. As no substantial question of law arises

for consideration in this appeal, it is dismissed.

Pending I.A., if any, does not survive for

consideration.

Sd/-

JUDGE

hnm