Malliknakeri Kalipureshappa vs B Shivamurthy
2023 Latest Caselaw 6200 Kant

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                                                        NC: 2023:KHC:31359
                                                     RSA No. 114 of 2018




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 31ST DAY OF AUGUST, 2023

                                          BEFORE

                            THE HON'BLE MR JUSTICE H.P.SANDESH

                    REGULAR SECOND APPEAL NO.114 OF 2018 (DEC/INJ)

                   BETWEEN:

                   MALLIKNAKERI KALIPURESHAPPA
                   S/O BETTAPPA
                   AGED ABOUT 52 YEARS
                   OCC AGRIL, R/O NANDIBEHAVOOR VILLAGE
                   HARAPANAHALLI TALUK-583131.


                                                             ...APPELLANT
                   (BY SRI. M R HIREMATHAD, ADVOCATE)
                   AND:

                   B SHIVAMURTHY
Digitally signed
by SHARANYA T      S/O EKANTAPPA
Location: HIGH     AGED ABOUT 52 YEARS
COURT OF           OCC:AGRICULTURE
KARNATAKA
                   R/O NANDIBEVOOR VILLAGE
                   HARAPANAHALLI TALUK
                   DAVANAGERE DISTRICT - 583131.


                                                           ...RESPONDENT

                        THIS RSA IS FILED U/S. 100 OF CPC. AGAINST THE
                   JUDGEMENT AND DECREE DTD 12.06.2017 PASSED IN
                   R.A.NO.41/2012 ON THE FILE OF THE SENIOR CIVIL
                   JUDGE AND JMFC, HARAPANHALLI AND ETC.
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                                                    NC: 2023:KHC:31359
                                                RSA No. 114 of 2018




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


                          JUDGMENT

Heard the learned counsel appearing for the

appellant.

2. The factual matrix of the case of the plaintiff

before the Trial Court that the defendants have colluded

with each other and obtained a decree in

O.S.No.103/2005. It is also the claim of the plaintiff that

he is in lawful possession over the suit schedule property

and the defendants are interfering with the peaceful

possession and enjoyment of the plaintiff over the suit

schedule property. The Trial Court considering the

pleadings of the parties framed the issues and allowed the

parties to lead their evidence. In order to prove the case

of the plaintiff, he himself examined as PW1 and got

marked the documents at Ex.P1 to P11. On the other

hand, defendant No.1 himself examined as DW1 and also

examined two witnesses as DW2 and DW3 and got marked

NC: 2023:KHC:31359 RSA No. 114 of 2018

the documents at Ex.D1 to D5. Defendant No.2 died

during the pendency of the suit. The plaintiff has not

brought any legal heirs of defendant No.2. The Trial Court

having considered both oral and documentary evidence

placed on record answered all the issues as negative and

dismissed the suit of the plaintiff. Being aggrieved by the

judgment and decree of the Trial Court, an appeal was

preferred before the First Appellate Court. The appellant

as filed an application before the First Appellate Court

praying to remand the matter to the Trial Court for the

purpose of giving findings on recasted issue No.4 but no

documents are produced to remand the same. The First

Appellate Court considering the grounds urged in the

appeal, formulated the points that whether the Trial Court

is right in dismissing the suit and the interference of this

Court is necessary. The First Appellate Court also on re-

appreciation of both oral and documentary evidence

placed on record comes to the conclusion that the Trial

Court is right in dismissing the suit and with regard to the

IA is concerned, the First Appellate Court answered as

NC: 2023:KHC:31359 RSA No. 114 of 2018

negative and comes to the conclusion that it does not

requires any interference on the ground that when the sale

deed was executed during the pendency of the suit, the

same is also binding on the plaintiff and knowingfully well

that there was a prohibitory order, property was

purchased and hence, the First Appellate Court

appreciated both oral and documentary evidence placed on

record and dismissed the appeal. Hence, the present

appeal is filed challenging the judgment and decree of

both the Courts.

3. The counsel for the appellant would vehemently

contend that both the Courts have committed an error in

dismissing the case of the plaintiff when there is no clear

evidence that the appellant had the knowledge of the

pendency of the suit. Under such circumstances, the

Courts below ought to have held that the compromise is

bad in law and the defendants have intentionally entered

into compromise only to defeat the interest of the

appellant. The counsel further contend that both he

NC: 2023:KHC:31359 RSA No. 114 of 2018

Courts have committed an error in not considering the

material on record and First Appellate Court also failed to

consider the application which has been filed to remand

the matter. The counsel also would vehemently contend

that this Court has to frame substantial questions of law

that whether the judgment and decree of both the Courts

are justified in holding that the plaintiff has failed to prove

his right, title, interest and possession in respect of the

suit schedule property inspite of he had acquired the same

by way of registered sale deed and hence, it requires

interference.

4. Having heard the learned counsel for the

appellant and also on perusal of the material on record it

is clear that the Court has to see that what relief has been

sought by the parties and in the case on hand, the only

relief is sought with regard to that a colluded decree is

obtained in O.S.No.103/2005 and also the claim of the

plaintiff that he is in possession of the suit schedule

property and defendants are interfering with the same.

NC: 2023:KHC:31359 RSA No. 114 of 2018

But his claim is that he had purchased the property

through the sale deed but he has not sought any relief to

declare him as absolute owner consequent upon the sale

deed. No doubt, the Trial Court committed an error in

mentioning that it is only a suit for bare injunction, but the

fact is that the relief of declaration is sought only to

declare that the decree is a collusive decree and not

sought proper relief. When the title is denied, the plaintiff

ought to have sought for the proper relief of declaration to

declare him as absolute owner and protect his right on the

ground that he has been in possession of the property but

the same has not been done and the said fact is also

considered by the Trial Court as well as the First Appellate

Court and hence, I do not find any error committed by

both the Courts. In the absence of comprehensive suit,

when the title is denied, the question of only considering

the relief as sought in the suit that the judgment and

decree obtained in O.S.No.103/2005 is collusive decree

does not arise. Hence, I do not find any merit in the

NC: 2023:KHC:31359 RSA No. 114 of 2018

appeal to admit and to frame substantial questions of law

invoking Section 100 of CPC.

5. In view of the discussions made above, I pass

the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

SN