M R Shivaramaiah vs G Nagaraju
2022 Latest Caselaw 7301 Kant

                             1



     IN THE HIGH COURT OF KARNATAKA, BENGALURU

         DATED THIS THE 23RD DAY OF MAY, 2022

                         BEFORE

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

               R.F.A.No.1365 OF 2005 (DEC)
BETWEEN

SRI M.R.SHIVARAMAIAH
S/O LATE RAMAIAH
AGED ABOUT 39 YEARS
R/AT MARALAGUNTE VILLAGE,
SOMPURA VILLAGE, SOMPURA HOBLI
NELAMANGALA TALUK
BANGALORE RURAL DISTRICT-562123.           ...APPELLANT

(BY SRI.CHANDRASHEKARA REDDY, ADVOCATE)

AND

1.     SRI G.NAGARAJU
       S/O LATE GANGAHANUMAIAH
       AGED ABOUT 42 YEARS
       R/AT CHIKKANAHALLI VILLAGE,
       THYAMAGONDLU HOBLI
       NELAMANGALA TALUK
       BANGALORE RURAL DISTRICT - 562123

2.     SRI M.R.SEETHARAMAIAH
       S/O LATE RAMAIAH
       AGED ABOUT 62 YEARS

3.     M.R. JAYARAMAIAH
       S/O LATE RAMAIAH
       AGED ABOUT 50 YEARS

4.     SRI M.R.RAMACHANDRAIAH
       S/O LATE RAMAIAH
       AGED ABOUT 42 YEARS
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       RESPONDENTS NO.2, 3 AND 4 ARE
       R/AT MARALAGUNTE VILLAGE,
       SOMPURA HOBLI, NELAMANGALA TALUK
       BANGALORE RURAL DISTRICT-562 123
                                                ...RESPONDENTS
(BY SRI V.RAJAIAH, ADVOCATE FOR R1
   R2, R3 & R4 SERVED)

       THIS APPEAL IS FILED UNDER SECTION 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 22.06.2005 IN O.S. NO.641/1998 ON THE
FILE OF THE PRL. CIVIL JUDGE (SR. DN.) BANGALORE RURAL DISTRICT,
BANGALORE, DECREEING THE SUIT FOR DECLARATION OF TITLE AND
FOR PERMANENT INJUNCTION AND ETC.

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


                          JUDGMENT

This appeal by the 5th defendant in O.S.No.641/1998 is

directed against the impugned judgment and decree dated

22.06.2005 passed in O.S.No.641/1998 by the Prl.Civil Judge

(Sr.Dn), Bangalore Rural District, Bangalore, whereby the said

suit filed by the 1st respondent - plaintiff against the appellant

- 5th defendant & others for declaration and permanent

injunction in respect of the suit schedule property was decreed

by the trial court.

2. Heard the learned counsel for appellants -

defendants and learned counsel for 1st respondent - plaintiff

and perused the material on record.

3. The material on record indicates that the 1st

respondent - plaintiff instituted the aforesaid suit for

declaration and permanent injunction against the appellant -

5th defendant interalia contending that the 1st respondent's

father one Gangahanumaiah became the sole and absolute

owner of the suit schedule property having been granted the

same by the State Government on 02.12.1961 under the

'Grow More Food Scheme'. The suit schedule property is

described as the land bearing Sy.No.27, Block No.V of

Chikkanahalli village, Thyamagondlu hobli, Nelamangala

taluk, Bangalore Rural district.

4. The 1st respondent - plaintiff specifically contended

that the appellant - defendants have no manner of title, right,

interest or possession over the suit schedule property and that

since they were interfered with the 1st respondent's peaceful

possession and enjoyment of the suit schedule property, the

1st respondent instituted the aforesaid suit.

5. The appellant - defendants contested the aforesaid

suit interalia disputing and specifically denying all the

contentions and claims put forth by the 1st respondent. The

legality, genuineness and validity of the alleged grant

propounded by the 1st respondent - plaintiff was specifically

denied and disputed by the appellant - defendants. The

appellant - defendants further contended that the suit

schedule property was their ancestral property and upon

demise of one Ramaiah husband of the 1st defendant and

father of defendants 2 to 5, the defendants inherited the same

by succession and became the absolute owner and the

property was acquired by the defendants. The appellant -

defendants also disputed the location and identity of the suit

schedule property as well as its boundaries and

measurements. Putting forth several other contentions, the

appellant - defendants sought for dismissal of the suit.

6. After completion of the pleadings, the trial court

framed the following issues:-

"1. Whether the plaintiff proves that he succeeded to the suit schedule property to his father and he is in possession and enjoyment of the property?

2. Whether the defendants prove that the suit schedule property was granted to their predecessor and that they are the absolute owners in physical possession and enjoyment of the same?

3. Whether the plaintiff proves interference by the defendants?

            4.   Whether      the       plaintiff   is   entitled   for
      declaration as sought by him?
            5.   Whether      the       plaintiff   is   entitled   for
      permanent injunction?
            6. What order?"

7. The 1st respondent - plaintiff examined himself as

PW-1 and documentary evidence at Exs.P1 to P14 were

marked on his behalf. Per contra, the 5th defendant examined

himself as DW-1 and Exs.D1 to D21 were marked on behalf of

the appellant.

8. After hearing the parties, the trial court proceeded to

decree the suit in favour of the 1st respondent - plaintiff

against the appellant - 5th defendant. Aggrieved by the

impugned judgment and decree, the 5th defendant is before

this Court by way of the present appeal.

9. During the pendency of this appeal, the appellant -

defendant has filed I.A.1/2020 under Order 41 Rule 27 CPC

seeking permission to adduce additional evidence. In addition

thereto, the appellant has also filed the applications I.A.1/2022

also under Order 41 Rule 27 CPC for a direction to summon

the Tahsildar, Nelamangala taluk, Bangalore Rural District, to

produce certain documents. So also, the appellant has filed

one more application I.A.2/2022 under Order 41 Rule 25 r/w

Order 14 Rule 3 and 5 and Section 151 of CPC for recasting

and framing of additional issues. Per contra, the 1st

respondent - plaintiff also filed an application I.A.1/2021 under

Order 41 Rule 27 CPC for permission to adduce additional

evidence on behalf of the respondents also. Both the

appellant as well as the 1st respondents have filed objections

to all the interlocutory applications filed by them.

10. After having heard the learned counsel for the

parties and on perusal of the entire material on record

including the impugned judgment and decree, it transpires that

the trial court has proceeded to uphold the claim of the 1st

respondent - plaintiff and negatived the claim of the appellant

- defendants on the main ground that the 1st respondent -

plaintiff's father Gangahanumaiah had acquired the right, title,

interest and possession over the suit schedule property under

the grant made in his favour in the year 1961. Before this

Court, in order to substantiate his contention that grant of the

suit schedule property was made in favour of his father, the 1st

respondent - plaintiff has filed an application I.A.1/2021 for

permission to adduce additional evidence by way of producing

the Saguvali Chit Register Extract. In support of the specific

contention / defence of the appellant - 5th defendant that there

was no grant made in favour of Gangahanumaiah and that the

alleged grant propounded by the 1st respondent was a

fraudulent and bogus grant and the same was not in

existence, the appellant - 5th defendant has also filed an

application I.A.1/2020 for permission to adduce additional

evidence in this regard. In addition thereto, the appellant also

taken necessary steps to summon the Tahsildar to produce

the original records for the purpose of establishing the

allegation that there was no grant made in favour of the 1st

respondent - plaintiff.

11. The points that arise for consideration in this appeal

are as under:-

" (i) Whether the appellant - 5th defendant has made out sufficient grounds to allow the I.As' filed by him?

(ii) Whether the impugned judgment and decree warrants interference by this Court?"

Re - Point No.1:-

12. Having regard to the fact that the entire controversy

between the parties revolves around the alleged grant said to

have been made in favour of Gangahanumaiah in the year

1961 as claimed by the 1st respondent, which has been

seriously disputed by the appellant - 5th defendant, without

expressing any opinion on the merits / demerits of the rival

contentions, I deem it just and appropriate to allow the

applications I.A.1/2021 filed by the 1st respondent - plaintiff,

I.A.1/2020 and I.A.1/2022 filed by the appellant - 5th

defendant and to set aside the impugned judgment and

decree passed by the trial court. Pursuant to the allowing of

the said applications as stated supra and permitting both sides

to adduce further oral and documentary evidence in support of

their respective contentions, it would be just and appropriate

to follow the procedure prescribed under Order 41 Rule 28

CPC and remit the matter back to the trial court for

reconsideration afresh in accordance with law.

12.1 The appellant has also filed I.A.2/2022 under

Order 41 Rule 25 CPC r/w Order 14 Rules 3 and 5 and

Section 151 CPC to frame additional issue and recast the

existing issues. Having regard to the fact that the matter

deserves to be remitted back to the trial court for consideration

afresh as stated supra, I am of the opinion that I.A.2/2022

deserves to be disposed of by reserving liberty in favour of the

appellant - 5th defendant to file similar application before the

trial court. It is needless to state that if such an application is

filed, the 1st respondent - plaintiff is entitled to file objections

to the said application. Point No.1 is answered accordingly.

Re- Point No.2:-

13. In view of the discussion made above, I am of the

considered opinion that the impugned judgment and decree

deserves to be set aside and the matter be remitted back to

the trial court for reconsideration afresh in accordance with

law. Point No.2 is answered accordingly.

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

ORDER

(i) The appeal is hereby allowed.

(ii) The impugned judgment and decree dated

22.06.2005 passed in O.S.No.641/1998 by the learned

Prl.Civil Judge (Sr.Dn), Bangalore Rural District, is hereby set

aside.

(iii) I.A.1/2020 and I.A.1/2022 filed by the appellant are

hereby allowed; so also, I.A.1/2021 filed by the 1st respondent

- plaintiff is also hereby allowed.

(iv) The matter is remitted back to the trial court for

reconsideration afresh in accordance with law.

(v) The registry is directed to transmit the applications

I.A.1/2020, I.A.1/2022 and I.A.1/2021 referred to supra along

with the documents to be produced before the trial court for

the purpose of giving effect to this order.

(vi) In view of the fact that I.A.1/2022 filed by the

appellant is hereby allowed, the trial court is directed to issue

summons / notice to the jurisdictional Tahsildar to produce the

documents referred to in I.A.1/2022.

(vii) Liberty is reserved in favour of both the appellant

and 1st respondent to adduce both oral and documentary

evidence in support of their respective contentions.

(viii) All rival contentions between the parties are kept

open and no opinion is expressed on the same.

SD/-

JUDGE

Srl.