Karnataka High Court

Sri C G Krishnamurthy Rao vs Dr B R Prakash on 5 December, 2023

Author: V Srishananda

Bench: V Srishananda

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                                                      NC: 2023:KHC:43985
                                                    RFA No. 2231 of 2007




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 5TH DAY OF DECEMBER, 2023

                                        BEFORE
                       THE HON'BLE MR JUSTICE V SRISHANANDA
                     REGULAR FIRST APPEAL NO. 2231 OF 2007 (DEC)
              BETWEEN:

              1.     SRI. C. G. KRISHNAMURTHY RAO,
                     SINCE DECEASED BY HIS LEGAL REPRESENTATIVES,

              (a) SMT. LEELABAI,
                  W/O. LATE SRI. C. G. KRISHNAMURTHY RAO, MAJOR,

              (b) SRI. B. K. VENKATESH,
                  S/O. LATE SRI. C. G. KRISHNAMURTHY RAO MAJOR,

              (c)    SRI. B. K. GANESH,
                     S/O. LATE SRI. C. G. KRISHNAMURTHY RAO MAJOR,

              (d) SMT. B. K. CHANDRAKALA,
                  D/O. LATE SRI. C. G. KRISHNAMURTHY RAO MAJOR,
Digitally
signed by R
MANJUNATHA    (e) SMT. GAJAGOWRI,
Location:
HIGH COURT        D/O. LATE SRI. C. G. KRISHNAMURTHY RAO MAJOR,
OF
KARNATAKA

              (f)    SRI. B. K. BHAGAWAN,
                     S/O. LATE SRI. C. G. KRISHNAMURTHY RAO MAJOR,

                     ALL ARE RESIDING AT NO. 218, L. B. SHASTRY
                     ROAD, 2ND MAIN, UTTARAHALLI, SUBRAMANYAPURA
                     POST, BANGALORE - 560 061.
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                                      NC: 2023:KHC:43985
                                    RFA No. 2231 of 2007




(g) SMT. B. K. THARA,
    D/O. LATE SRI. C. G. KRISHNAMURTHY RAO MAJOR,
    R/AT DATATREYA ROAD,
    GANDHI BAZAR, BASAVANAGUDI,
    BANGALORE.

(h) SMT. B. K. AHALYA,
    D/O. LATE SRI. C. G. KRISHNAMURTHY RAO, MAJOR,
    R/AT NO 7TH CROSS, 7TH MAIN CANARA BANK
    COLONY, SRINIVASANAGAR, BANGALORE.

                                            ...APPELLANTS
(BY SRI. NARENDRA D. V. GOWDA .,ADVOCATE)

AND:

1.   DR. B. R. PRAKASH,
     S/O. B. A. REVAPPA MAJOR,
     R/AT NO. 329, 36TH "A" CROSS
     BEHIND DENA BANK,
     5TH BLOCK JAYANAGAR,
      BANGALORE - 560 011.

2.   M/S. BHARATH HOUSING
     CO-OPERATIVE SOCIETY LTD.,
     BY ITS SECRETARY/ PRESIDENTAT,
     AT NO. 1, BHCS LAYOUT, (BTM SCHEME)
     BANNERAGHATTA ROAD BANGALORE - 73.

                                        ...RESPONDENTS



(BY SRI. R. S. RAVI ADVOCATE,
    SRI. CHANDAN S. RAO., ADVOCATE FOR R1 AND R2)
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                                              RFA No. 2231 of 2007




     THIS RFA IS FILED U/S.96 OF CPC AGAINST THE
JUDGMENT      AND      DECREE           DT.7.7.2007      PASSED        IN
O.S.NO.6917/1999 ON THE FILE OF THE III ADDL. CITY CIVIL
JUDGE, BANGALORE (CCH-25), DISMISSING THE SUIT FOR
DECLARATION, POSSESSION AND INJUNCTION.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS

DAY, THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

Heard Sri.R.S.Ravi, learned Senior Counsel and Sri.Chandan

S. Rao, learned counsel for respondent Nos.1 and 2.

2. The present appeal is filed challenging the validity

of the judgment and decree passed in O.S.No.6917/1999 dated

07.07.2007 on the file of III Additional City Civil Judge,

Bengaluru city (CCH No.25).

3. The parties are referred to as plaintiffs and

defendants for the sake of convenience as per their original

ranking before the Trial Court.

4. Brief facts of the case are as under:

A suit came to be filed by plaintiff for the relief of

declaration, possession and injunction in respect of property

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which is a site bearing No.53, formed out of Sy.No.58/4,

Khaneshumari No.158, New Khaneshumari No.268, measuring

East to West 30 ft. and North to South 15+23/2 ft. situated at

Chikkallasandra village, Uttarahalli Hobli, Bangalore South

Taluk, bounded on East by site No.61, West by site No.54,

North by road and South by private property (hereinafter

referred to as suit schedule property).

5. The claim of plaintiff that he is the absolute owner

in possession of the suit property having acquired the same by

way of registered Gift Deed dated 29.10.1982. It is further

contended that ever since the gift deed, plaintiff is in

possession and enjoyment of the suit property. He further

contended that land bearing Sy.No.58/4 has been converted

from agriculture to non-agriculture/residential purposes by

order of the Tahsildar, Bangalore South Taluk vide notice

bearing No.ALN/SR(s)/81-82 dated 05.04.1982. It is further

contended that immediately after the conversation, residential

layout has been formed which has been approved by the

competent authority. Thereafter, the subject matter of the gift,

has been gifted in favour of the plaintiff.

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6. It is further contended that defendants having no

right title or interest over the suit property, started interfering

with the suit property. Therefore, the plaintiff was constrained

to file the suit.

7. Upon service of the suit summons, defendant No.1

entered appearance and filed written statement denying the

plaint averments in toto. He further contended that M/s.

Bharath Housing Co-operative Society Limited, No.1, BHCS

Layout (BTM Scheme) Bannerghatta Road, Bangalore who

became the owners through acquisition by the competent

authority of land in Sy.No.17 and 18 of Uttarahalli village,

Uttarahalli Hobli, Bangalore South Taluk as absolute owner and

got surveyed the land. Therefore, the society, who is

defendant No.2 became the owner of the suit property and

allotted sites in favour of defendant No.1, whereby, defendant

No.1 is in occupation, possession and enjoyment of the

property which has been numbered as 297 and 298 in the

approved layout formed by the said society.

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8. Based on the rival contentions of the parties, Trial

Court raised necessary issues and also raised a point for

consideration which reads as under:

"Whether the I.A.No.3 filed by the plaintiffs under Order XXVI Rule 9 of CPC for appointment of Court Commissioner is fit to be allowed?"

9. In order to prove the case of the plaintiffs, three

witnesses were examined as PW.1 to 3 among them PW.1 is

plaintiff No.(e) - Ms.Gajagowri and two witnesses were

examined viz., Sri.K.R.Rajan and Sri.Sadashivamurthy as PW.2

and 3 and placed reliance on 16 documents which were

exhibited and marked as Ex.P.1 to Ex.P.16 comprising of

Ex.P.1 - Original Gift Deed.

Ex.P.2 - House Tax demand register extract.

     Ex.P.3              - House Tax assessment List.

     Ex.P.4-12           - Tax paid receipts.

     Ex.P.13             - Endorsement.

     Ex.P.14             - Certified copy of Surveyor's report.

     Ex.P.15             - Certified copy of Sketch.

     Ex.P.16             - Copy of Judgment and decree in
                           OS.7333/1993 dated.28.03.2003.

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10. As against the evidence placed on record by the

plaintiffs, on behalf of the defendants, Dr.B.R.Prakash, who is

defendant No.1 is examined as DW.1 and Sri.R.Raghavendra

Swamy is examined as DW.2. Defendants placed reliance on 26

documents which were exhibited and marked as Ex.D.1 to

Ex.D.26 comprising of

Ex.D.1 - Approved Layout Plan.

    Ex.D.2           - True copy of Sale Deed.

    Ex.D.3           - True copy of possession certificate.

    Ex.D.4-7         - Copy of Encumbrance Certificates.

    Ex.D.8           - Tax paid receipt.

    Ex.D.9           - Letter of allotment.

    Ex.D.10          - Copy of sale deed dated 14.02.1992.

    Ex.D.11          - Copy of sale deed dated 28.09.1995.

    Ex.D.12          - Possession certificate.

    Ex.D.13          - Encumbrance Certificate.

    Ex.D.14          - Tax paid receipt.

    Ex.D.15          - Challan.

    Ex.D.16          - Katha Certificate.

    Ex.D.17          - Letter of Allotment.

    Ex.D.18-24       - Tax paid receipts.

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    Ex.D.25          - Sketch.

    Ex.D.26          - Letter of Canfin Homes Ltd.

11. On conclusion of recording of the evidence, learned

Trial Judge heard the parties in detail and by appreciating the

material evidence on record, dismissed the suit of the plaintiffs.

However, in respect of the point that has been raised by the

trial Court as to whether the application filed under Order XXVI

Rule 9 vide I.A.No.3 was required to be allowed or not is not

answered at the first instance. After answering issue Nos.1 to

3, learned Trial Judge has stated that I.A.No.3 needs to be

rejected in view of the finding of the Court on issue Nos.1 to 3.

12. Being aggrieved by the same, plaintiffs has

preferred the present appeal on the following grounds:

 That the Judgement and decree of the lower court is contrary to law, the evidence on record and the facts of the case.

 That the lower court had failed to identify the suit property and thereby there was miscarriage of justice.

 The lower court which should have allowed the I.A. under order 26 rule 9 of CPC filed by the plaintiff seeking survey of the property to perfectly identify the suit property. So that the Appellant genuine purchaser of the said

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property should have got proper justice and the court has wrongly dismissed the I.A. on the plea that plaintiff is seeking survey to create fresh evidence and as such the suit should have been decreed.

 The court has wrongly observed that the layout in which suit property is situated was not properly approved by appropriate authority when the same is approved and has ignored the said plea and has wrongly dismissed the suit.

 The court ought have seen the title documents produce by the plaintiff in proper perspective to identify the property and uphold the title of the plaintiff in respect of the suit property.

 The court has not appreciated the fact that the title document of appellant/plaintiff is much earlier to the sale deed executed in favour of 1"

defendant by the 2nd defendant where in survey sketch produced by plaintiff has shown encroachment by the 2nd defendant over the neighbouring layout in which the suit property is situated.

 There is know proper discussion of evidence on record and the decree is bad, as the court has not considered material evidence on record and the court has failed to note that one of the neighbouring property of the suit property is protected vide court order in O.S. No.7333/93 and RFA No.930/03 from the 2nd defendant and principle of the said judgement should have been discussed before coming into the conclusion of dismissing the suit and court has failed to appreciate the evidence given in support of the plaintiff title.

 Plea of the defendants that there is no property as claimed by plaintiff is lacking in conviction

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and such as the court should have decreed the suit.

 There is serious error in holding that the plaintiff has not proved the case by not identifying the property.

 The court has failed to appreciate the fact that there is a neighbouring layout attached to suit property and due to the encroachment of the 2nd defendant the owner of the suit property is put into inconvenience.

 That the lower court has not considered and construed the title documents of the property in proper perspective as well as the evidence of Pw1 to Pw3.

 The court is in error to hold that the plaintiff is not the owner of the suit property by ignoring the averments of the plaintiff in respect of the same.

 That it ought to have held that the defendant had encroached the plaintiff's property by showing wrong boundaries.

 That the Lower Court had failed to frame necessary issues and the burden of proof was wrongly placed entirely on the plaintiff.

 That the Lower court has failed to consider properly the entire pleadings and the evidence of record.

 That the judgement and decree of the lower Court is based on surmises and conjectures.

 That the entire approach of the Lower court to the facts of the case is erroneous and misconceived.

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 That in any event the Judgement of the lower court is not sustainable in law

13. Reiterating the grounds urged in the appeal

memorandum, Sri.R.S.Ravi, learned Senior Counsel vehemently

contended that the approach of the trial Court in not disposing

of I.A.No.3 at the first instance and has decided to dispose of

I.A.No.3 along with the suit and without answering the point

raised with regard to the disposal of I.A.No.3 on merits,

proceeded to answer issue Nos.1 to 3 at the first instance and

thereafter, considered the scope of I.A.No.3 has resulted in

great injustice to the appellants and sought for allowing the

appeal. He also pointed out that the precise purpose of filing

I.A.No.3 was to identify the property as one and the same site

has been claimed by plaintiff and contention of defendant.

14. He also contended that the trial Court heard

I.A.No.3 at length and reserved it for orders and adjourned the

matter on number of occasions and for passing the orders. But

surprisingly on 21.03.2007 without recourse to the parties,

passed an order that I.A.No.3 would be heard along with the

main suit resulting in miscarriage of justice and sought for

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remitting the matter to the trial Court for fresh disposal in

accordance with law.

15. Per contra, Sri.Chandan S. Rao, learned counsel for

respondent Nos.1 and 2 and Sri.Adithya Soundi, learned Senior

counsel representing defendant No.1, vehemently contended

that after all the non disposal of the I.A.No.3 at the first

instance and deciding to pass the judgment on merits is only a

procedural irregularity and the same is curable defect.

Therefore, no case is made out for remand of the matter to the

trial Court by allowing the appeal.

16. They also pointed out that the appellant being a

party to the order dated 21.03.2007, now cannot find fault with

the approach of the trial Court in not disposing of I.A.No.3 at

the first instance and then to proceed with the judgment.

17. They further pointed out that no gross injustice has

been caused by the trial Court by not answering point No.1 in

the impugned judgment at the first instance and deciding to

proceed with the case on merits while answering issue Nos.1 to

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3. Therefore, no case is made out by the appellants for seeking

an order of remand and sought for dismissal of the appeal.

18. In view of the rival contentions of the parties, this

Court perused the material on record meticulously. On such

perusal of the material on record and in the light of arguments

put forth on behalf of the parties, the sole point that would

arise for consideration is:

"Whether the appellants have made out the case for setting aside the impugned judgment and remitting the matter before the trial Court for fresh disposal in accordance with law?"

19. In the instant case, there is no dispute that I.A.No.3

came to be filed on 03.12.2002. The application was opposed

by filing written objections. Learned Trial Judge heard the

parties at length on different dates and reserved the matter for

orders on 21.02.2006. However, without passing the orders on

I.A.No.3, the learned Trial Judge by order dated 30.03.2007

directed that I.A.No.3 would be heard along with the main

appeal at the request of both the parties.

20. Learned counsel for the appellants submits that

there was no concession given by the plaintiffs in respect of

order dated 30.03.2007 and the court sou-motu posted

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I.A.No.3 for disposal along with the main matter. Be it what it

may, fact remains that I.A.No.3 was not disposed of by the trial

Court before proceeding with the judgment.

21. What is the role of the Court when an interlocutory

application is pending and how it should be disposed of in a

given suit is no longer res-intigra.

22. A Division Bench of this Court in the case of Veera

Vahana Udyog Pvt. Ltd., represented by its Managing Director

vs. Karnataka State Road Transport Corporation, represented

by its Managing Director and others reported in ILR 2010 KAR

507 has held as under:

"42. An Interlocutary application is filed seeking consideration before the final disposal of a case. The Courts should therefore consider such Interlocutary Applications at the earliest point of time. It is only as a matter of exception and based on the facts and circumstances of the case that an Interlocutary application could be considered at the stage of final disposal of the case for reasons to be recorded. In the instance case the Learned Single Judge has filed to take note of the existence of the Interlocutary application. It is only after the Judgment was pronounced that, the order on the Interlocutary application was passed separately. This would imply that not only at the stage of final arguments but also while pronouncing the Judgment, the Learned Single Judge has not considered the same.

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43. The procedure adopted by the Learned Single Judge in rejecting the Interlocutary application as having become insfructous due to the final disposal of the case is not only erroneous but is opposed to the basic principles of Jurisprudence. We would reiterate that all Applications filed during the pendency of a case would necessarily have to be considered at the earliest point of time. The procedure adopted by the Learned Single Judge in a finally hearing the matter without considering the pending application is not only erroneous but a procedural irregularity. The Courts are duty bound to consider all Interlocutary Applications before the consideration of the final case on merits. Exceptionally the same may be considered at the stage of final hearing for reasons to be recorded. The failure to consider the application before passing an order on merits is erroneous. The procedure adopted by the Learned Single Judge is erroneous and opposed to law."

23. In the aforesaid said case, the Division Bench was

of the opinion that considering the interlocutory application

especially filed under Order VI Rule 17 had bearing on the

merits of the matter as allowing the amendment or rejecting

the amendment would have decided the rights of the parties in

one way or the other and without disposing the application for

seeking amendment of the pleadings and proceeded with the

main matter on merits has resulted in great injustice.

Therefore, the Division Bench ruled that all such interlocutory

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applications must be disposed of before the Court proceeds

with the main matter.

24. Applying the principles of law enunciated in the

above decision to the case on hand, it is seen that I.A.No.3 is

filed for appointment of the commissioner under Order XXVI

Rule 9 of CPC.

25. In the instant case, plaintiff is claiming the right

over the suit property based on registered gift deed when the

layout was formed after the land got converted. Whereas,

defendant No.1 is claiming the right over the suit property

which is the site bearing No.297 and 298 carved out of

Sy.No.17 and 18 of Uttarahalli village, Uttarahalli Hobli,

Bangalore South Taluk.

26. May be the sites belonging to defendant No.1 and

the plaintiff are in the adjacent layouts. Possibility of the

overlapping of the properties cannot also be ruled out.

However, Sri.Chandan S. Rao, learned counsel for respondent

Nos.1 and 2 submits that there are admissions made by the

parties in this regard and those admissions would be sufficient

enough in resolving the dispute as to the ownership of the

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plaintiff's site as well as defendants site which has been rightly

appreciated by the learned Trial Judge in the impugned

judgment. Therefore, non disposal of I.A.No.3 before the

matter was taken up on merits has not caused any serious

injustice to the plaintiffs.

27. Pertinently, the application for appointment of

commissioner came to be filed on 30.06.2002. Learned Trial

Judge heard I.A.No.3 on number of occasions and reserved it

for pronouncement of the orders not only once but number of

times. However, for the reasons best known to the learned

Trial Judge, he did not decide I.A.No.3 on merits for a period of

more than five years. All of a sudden, by order dated

30.03.2007, the learned Trial Judge wrote in the order sheet

that the parties agree that I.A.No.3 can be disposed of along

with the main matter.

28. The approach of the learned Trial Court in keeping

the matter pending from 30.06.2002 till up to 30.03.2007 and

reserving the matter for more than one occasion and not

passing the orders on merits of I.A.No.3 has thus resulted in

miscarriage of justice. Further, as per the principle of law

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enunciated in the judgment of Division Bench of this Court as

referred to supra, decision on I.A.No.3 one way or the other

would have thrown sufficient light on the merits of the matter

in properly appreciating the case of the parties.

29. Therefore, trial Court was duty bound to consider

I.A.No.3 at the first instance and dispose of the same.

Thereafter, trial Court should have proceeded with the hearing

of the main matter. Having not done so, this Court is of the

considered opinion that the impugned judgment is suffering

from legal infirmity, requiring this Court to interfere with the

impugned judgement by exercising the power vested in this

Court under Section 96 of CPC. Accordingly, point is answered

in affirmative and following:

ORDER

i. Appeal is allowed.

ii. Impugned judgment and decree passed in

O.S.No.6917/1999 dated 07.07.2007 is hereby

set aside.

iii. Matter is remitted to the trial Court for fresh

disposal in accordance with law.

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iv. Parties shall appear before the trial Court

without further notice on 14.12.2023.

v. It is made clear that learned Trial Judge shall

hear I.A.No.3 on merits and pass appropriate

orders and thereafter, dispose of the main

matter in accordance with law.

vi. Taking note of the fact that suit is of the year

1999, the trial Court shall dispose of the case

on or before 30.06.2024.

vii. It is needless to emphasize that parties shall

co-operate for the early disposal of this case.

viii. Parties shall appear without further notice

before the Trial Court on 14.12.2023.

ix. It is also made clear that the parties are not

entitled to lead any additional evidence on

record and the matter should be taken up for

arguments on I.A.No.3 dispose of the same and

thereafter, the main matter.