Karnataka High Court
Smt Rajamma vs Sri N Murari on 20 February, 2023
Bench: H T Prasad
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RFA No. 810 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
REGULAR FIRST APPEAL NO. 810 OF 2020 (DEC/INJ)
BETWEEN:
SMT RAJAMMA
W/O T SANDHIGAPPA
PRESENT AGED ABOUT 80 YEARS
R/AT VEERANNAPALYA
ARABIC COLLEGE PO
BENGALURU-560045.
...APPELLANT
(BY SRI. SURENDRA R., ADVOCATE)
AND:
1. SRI N MURARI
Digitally signed S/O NARAYANAPPA
by AGED ABOUT 55 YEARS
DHANALAKSHMI
MURTHY R/AT NAGAVARA VILLAGE
Location: High ARABIC COLLEGE P.O
Court of BENGALURU-560045.
Karnataka
2. SMT KEMPAMMA
W/O LATE CHANDRAPPA
AGED ABOUT 60 YEARS
3. SRI C MUNE GOWDA
SINCE DEAD BY HIS LRS
SMT RUKMINI
W/O LATE C MUNE GOWDA
AGED ABOUT 46 YEARS
R/AT NAGAVARA VILLAGE
-2-
RFA No. 810 of 2020
ARABIC COLLEGE PO
BENGALURU-560045.
4. MEGHANA
D/O LATE C MUNEGOWDA
AGED ABOUT 24 YEARS
5. MONIKA
D/O LATE C MUNEGOWDA
AGED ABOUT 22 YEARS
6. SRI SRINIVASA
S/O LATE CHANDRAPPA
AGED MAJOR
RESPONDENTS 2 TO 6 ARE
R/AT NAGAVARA VILLAGE
ARABIC COLLEGE PO
BENGALURU-560045
...RESPONDENTS
(BY SRI. MITHUN G A., ADVOCATE FOR C/R1:
SRI. K ,MURTHY, ADVOCATE FOR R2 TO R6)
THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 01.02.2020
PASSED IN OS NO. 587/2013 ON THE FILE OF THE III
ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY
(CCH- NO.25) DISMISSING THE SUIT FOR DECLARATION,
POSSESSION AND PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RFA No. 810 of 2020
JUDGMENT
This matter is posted for admission and since notice
has been served on all the respondents, with the consent
of the parties, the matter is taken up for final hearing.
This appeal is filed under Section 96 of CPC
challenging the judgment and decree dated 1.2.2020
passed by III Addl. City Civil & Sessions Judge, Bengaluru
in O.S.No.587/2013, whereby the suit filed by the plaintiff
has been dismissed.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court in
original suit.
3. The plaintiff has filed the suit for permanent
injunction on the ground that the plaintiff has purchased
the property by registered sale deed dated 1.7.1974 from
one Chandrappa. Since the defendants are trying to
interfere with plaintiff's peaceful possession and
enjoyment over the suit schedule property, the plaintiff
RFA No. 810 of 2020
earlier had filed the suit in O.S.No.5273/2001, which came
be dismissed on 30.8.2011. Being aggrieved by the same,
the plaintiff filed RFA No.2140/2011 before this Court. This
Court by judgment dated 31.1.2012 has affirmed the
judgment and decree passed by the Trial Court with liberty
to the appellant-plaintiff to file a comprehensive suit
seeking declaration of the title to the cart-way as included
in the sale deed. Thereafter, plaintiff has filed the present
suit i.e., O.S.No.587/2013 seeking declaration and
injunction. On service of suit summons, defendant No.1
has filed the written statement denying the contents of the
plaint and they are in possession by virtue of Agreement
to Sell and Power Of Attorney and Affidavit dated
31.7.1992. The defendant Nos.2 to 4 have not filed written
statement. On the basis of the pleadings of the parties,
the Trial Court has framed following issues:
1. Whether the plaintiff proves that she
is the absolute owner of the Plaint 'A' Schedule
Property?
RFA No. 810 of 2020
2. Whether the Plaintiff proves that while
executing the Sale Deed dated:01.07.1974
Chandrappa wrongly mentioned eastern
boundary as a cart track?
3. Whether the Plaintiff proves that
Defendants illegally trespassed into the Plaint 'B'
Schedule Property?
4. Whether the Defendant No.1 proves that
Suit is barred by limitation?
5. Whether the Plaintiff is entitled for the
reliefs as prayed for?
6. What Order or Decree?
On behalf of the plaintiff, the plaintiff has examined her
son, Special Power of Attorney Holder as PW-1 and got 17
documents exhibited. The defendant No.1 has been
examined himself as DW-1 and another person as DW-2
and produced 8 documents. On appreciation of oral and
documentary evidence, the Trial Court has answered
issued Nos.1 to 5 in the negative and dismissed the suit.
Being aggrieved by the same, the plaintiff has filed this
appeal.
RFA No. 810 of 2020
4. The learned counsel for the appellant-plaintiff
has contended that the plaintiff has filed the suit for
declaration and injunction of 'B' suit schedule property.
The Trial Court has framed issue in respect of 'A' suit
schedule property and the Trial Court has not rightly
considered the evidence of the parties and there is no
appreciation of oral and documentary evidence on record
and has erred in dismissing the suit.
5. The learned counsel for the defendant No.1 has
contended that the defendant No.1 has purchased the
property by virtue of Agreement to Sell and Power Of
Attorney and Affidavit dated 31.7.1992. He is in
possession of the property. Therefore, the Trial Court has
rightly dismissed the suit. Hence, he sought for dismissal
of appeal.
has contended that the judgment and decree passed by
the Trial Court is without giving opportunity to defendant
Nos.2 to 4 and without considering the documents
RFA No. 810 of 2020
available on record. Hence, he contended that if this Court
grants one more opportunity to the defendant Nos.2 to 4
to file their written statement, defendant Nos.2 to 4 shall
file written statement and contest the case.
7. Heard the learned counsel for the parties.
Perused the judgment and decree and records.
8. The point that arises for consideration in this
appeal is:
"Whether the judgment and decree passed by
the Trial Court is error, perverse and arbitrary in the
facts and circumstances of the case?"
9. The case of the plaintiff is that plaintiff has
purchased the property by registered sale deed dated
1.7.1974 from one Chandrappa. From the said date, he is
in possession of the property. Since the defendants tried
to interfere with the suit schedule property, he has filed
the suit in O.S.No.5273/2001 for bare injunction. The said
suit came to be dismissed on 30.8.2011. RFA
No.2140/2011 filed before this Court challenging the
RFA No. 810 of 2020
judgment and decree dated 30.8.2011 passed in
O.S.No.5273/2001 also came to be dismissed reserving
liberty to the plaintiff to file a comprehensive suit in
respect of cart-way as claimed in the sale deed.
Thereafter, the plaintiff filed the present suit i.e.,
O.S.No.587/2013 seeking declaration and permanent
injunction in respect of 'B' suit schedule property. The Trial
Court on the basis of the pleadings of the parties and
documents produced has framed issue No.1 has follows:
1. Whether the plaintiff proves that she is
the absolute owner of the Plaint 'A' Schedule
Property?
10. The prayer sought is in respect of 'B' suit
schedule property. The Trial Court has proceeded on the
basis of relief as claimed in respect of 'A' suit schedule
property. The Trial Court has not appreciated the oral and
documentary evidence of the parties. There is no finding
regarding claim of the parties in respect of 'B' suit
schedule property. Without giving any reason and without
RFA No. 810 of 2020
application of mind, the Trial Court has passed the
impugned judgment and decree. The same is perverse and
illegal. Hence, the matter requires to be remitted back to
the Trial Court for fresh consideration.
11. Accordingly, the appeal is allowed.
The judgment and decree dated 1.2.2020 passed by
the III Addl. City Civil and Sessions Judge, Bengaluru in
O.S.No.587/2013, is set aside.
The matter is remitted back to the Trial Court to
reconsider the matter afresh.
The Trial Court after hearing the parties shall decide
the matter afresh in accordance with law.
In view of disposal of appeal, all pending I.As. are
dismissed.
Sd/-
JUDGE
DM
