Karnataka High Court
Smt. D. Mariam Priya Darshini vs Sri. Santhosh George on 4 December, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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RFA No. 1967 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO. 1967 OF 2023 (INJ)
BETWEEN:
SMT. D. MARIAM PRIYA DARSHINI,
AGED ABOUT 43 YEARS,
DAUGHTER OF MR. DEVANESAN,
RESIDING AT NO. 136, BETHEL,
KAVERINAGAR, VODDARAPALAY,
HORAMAVU AGRA,
BANGALORE-560 043.
...APPELLANT
(BY SRI. REVBEN JACOB, SENIOR COUNSEL FOR
SRI. DEVAIAH.M.P.,ADVOCATE)
AND:
SRI. SANTHOSH GEORGE,
AGED ABOUT 56 YEARS,
SON OF LATE GEROGE SABASTIAN
RESIDING AT NO. 6, 5TH CROSS,
Digitally VGS ALYOUT, EJIPUA,
signed by NEAR MUNESHWARA TEMPLE,
VANDANA S BANGALORE-560 047.
Location: ...RESPONDENT
HIGH (BY SRI. SURESH.S.LOKRE, SENIOR COUNSEL FOR
COURT OF SRI. SHRAVAN.S.LOKRE, ADVOCATE)
KARNATAKA
THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 01.09.2023 PASSED IN
OS.NO. 5500/2017 ON THE FILE OF THE LEARNED LXI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BANGALORE(CCH 62),
DECREEING THE SUIT FOR PERMANENT INJUNCTION
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RFA No. 1967 of 2023
JUDGMENT
Appellant had produced the latest photographs pertaining to
the disputed property. The photographs are received on record.
2. This appeal by the defendant in O.S.No.5500/2017 is
directed against the impugned judgment and decree dated
01.09.2023 passed by the LXI Addl. City Civil and Sessions Judge,
Bangalore City, whereby the said suit for permanent injunction and
other reliefs filed by the respondent - plaintiff against the appellant
- defendant in relation to the suit schedule immovable property
was decreed by the Trial Court in favour of the respondent against
the appellant.
3. Heard learned senior counsel for the appellant and
learned counsel for the respondent and perused the material on
record.
4. The material on record discloses that the respondent -
plaintiff instituted the aforesaid suit seeking permanent injunction
and other reliefs restraining the appellant - defendant from
interfering with his alleged possession and enjoyment of the suit
schedule property. It was the specific contention of the respondent
- plaintiff that the suit schedule property as described in the plaint
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was acquired by him vide Registered Sale Deed dated 23.01.2017
pursuant to which the Revenue records were transferred to his
name and he was paying the taxes. It was also contended that the
appellant - defendant was residing in the house situated adjacent
to suit schedule property on the Western side. It was contended
that since the appellant - defendant was interfering with the
respondent - plaintiff's possession and enjoyment of the suit
schedule property, the plaintiff instituted the aforesaid suit.
5. The appellant - defendant contested the suit interalia
disputing and denying the various allegations and claims made by
the plaintiff, pursuant to which the Trial Court framed the following
issues:
" a. Whether the plaintiff proves that he is in peaceful
possession and enjoyment of the suit schedule property as
on the date of suit?
b. Whether the plaintiff further proves the alleged
interference of the defendant?
c. Whether the plaintiff further proves that he is entitled for
the relief of permanent injunction as prayed?
d. What order or decree?"
6. The plaintiff examined himself as PW-1 and documentary
evidence at Ex.P.1 - P.22 were marked, while the defendant
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examined herself as DW-1 and documentary evidence at Ex.D.1 -
D.20 were marked.
7. After hearing the learned counsel for the parties, the Trial
Court proceeded to pass the impugned judgment and decree,
decreeing the suit in favour of respondent - plaintiff against the
appellant - defendant who is before this Court by way of the
present appeal.
8. The appellant has filed a memo along with latest
photographs depicting the suit schedule property. In this context,
learned senior counsel for the appellant submits that there was a
compound wall situated on the Northern side of the suit schedule
property which has been demolished recently by the respondent. It
is also submitted that during the pendency of the suit before the
Trial Court, the appellant - defendant has also instituted one more
suit in O.S.No.25088/2018 in which the respondent - plaintiff has
entered appearance and is contesting the said suit. It is submitted
that the aforesaid suit in O.S.No.25088/2018 is a comprehensive
suit for declaration and injunction and since the present appeal
arises out of a suit for permanent / bare injunction simpliciter, the
impugned judgment and decree passed in the instant suit may be
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set aside and the matter remitted back to the Trial Court for
reconsideration afresh in accordance with law.
9. Per contra, learned senior counsel for the respondent -
plaintiff submits that the Trial Court has correctly and properly
considered and appreciated the entire material on record
comprising of the pleadings and evidence of the parties and
recorded Court including the admission of the appellant in her
evidence and has come to the correct conclusion that the
respondent was in lawful and peaceful possession and enjoyment
of the suit schedule property and was consequently entitled a
decree for permanent injunction. It was therefore, submitted that
the impugned judgment and decree passed by the Trial Court does
not warrant interference in the present appeal.
10. Alternatively, on the instructions learned senior counsel
for the respondent submits that in the event, this Court were to set
aside the impugned judgment and decree and remit the matter
back to the Trial Court to for disposal, for reconsideration afresh
along with O.S.No.25088/2018, the respondent may be permitted
to utilize/use the pleadings and evidence already on record and
both the suits may be directed to be clubbed / consolidated for
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disposal together in accordance with law within a stipulated time
frame.
11. I have given my anxious consideration to the rival
submissions and perused the material on record.
12. A perusal of the material on record will indicate that it is
an undisputed fact that the present appeal arises out of a suit for
bare / permanent injunction, simpliciter filed by the respondent -
plaintiff against the appellant - defendant in the year 2017.
13. It is also not in dispute that during the pendency of the
said suit, the appellant has instituted one more suit
O.S.No.25088/2018 against the respondent for declaration,
permanent injunction and other reliefs in relation to the very same
suit schedule property and the said suit is being contested by the
respondent and is pending adjudication before the Trial Court.
Under these circumstances, though several contentions urged by
both sides in support to their respective claims in the instant suit
and in the present appeal, as well as in O.S.No.25088/2018
referred to supra, having regard to the undisputed fact that the
parties to present appeal and the suit schedule property involved in
both the suits are one and the same and the issues in controversy
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are identical, 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 along with
O.S.No.25088/2018 in accordance with law.
14. Further, since the instant suit in O.S.No.5500/2017 was
disposed by LXI Addl. City Civil and Sessions Judge, Bengaluru
City (CCH-62) while the subsequent suit in O.S.No.25088/2018
before the Hon'ble City Civil court, Court Hall No.22 Mayo Hall,
Bangalore.
15. I deem it just and appropriate to exercise my powers
under Section 24 of CPC read with Article 227 of the Constitution of
India and withdraw O.S.No.5500/2017 from the file of the LXI Addl.
City Civil and Sessions Judge, Bengaluru City (CCH-62) and
transfer the same to the Court of the Addl. City Civil Judge, Court
Hall No.22 Mayo Hall, Bangalore, to be clubbed, consolidated and
tried and disposed of along with O.S.No.25088/2018 in accordance
with law.
16. In the result, I pass the following orders:
i) Appeal is hereby allowed.
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ii) Impugned judgment and decree dated 01.09.2023
passed in O.S.No.5500/2017 is hereby set aside.
iii) The matter is remitted back to the Trial Court for
reconsideration afresh in accordance with law.
iv) The registry of the Trial Court is directed to withdraw
O.S.No.5500/2017 from the file of LXI Addl. City Civil and Sessions
Judge, Bengaluru City (CCH-62) and transfer the same to the
Court of XIII Addl. City Civil and Sessions Judge, Mayohall (CCH-
22), to be clubbed, consolidated and disposed of together along
with O.S.No.25088/2018 in accordance with law.
v) Both parties are directed not to put up any construction
on the suit schedule property nor demolish any existing structure
on the suit schedule property till disposal of the suit.
vi) The Trial Court shall consider the rival contentions
including the pleadings and evidence of the parties in both
O.S.No.5500/2017 and O.S.No.25088/2018 and dispose of both
the suits together in accordance with law, within a period of nine
months from the date of receipt of a copy of this order.
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vii) All rival contentions on all aspects of the matter in both
O.S.No.5500/2017 and O.S.No.25088/2018 are kept open and no
opinion is expressed on the same.
Sd/-
JUDGE
DHA
