Karnataka High Court
Sri.N.Gangadhara vs Sri.R.Ramesh on 28 February, 2023
Bench: H.P.Sandesh
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RSA No. 1042 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1042 OF 2018 (INJ)
BETWEEN:
1. SRI N. GANGADHARA
S/O. NARASAPPA,
AGED ABOUT 39 YEARS
RESIDING AT BODABANDHALLI
VILLAGE, NAGARAGERE HOBLI,
GOWRIBIDANUR TALUK,
CHIKKABALLAPURA DITRICT-561 228.
...APPELLANT
(BY SRI. ANANDEESWARA D.R., ADVOCATE)
AND:
1. SRI. R.RAMESH
Digitally signed S/O. RANGASWAMY,
by SHARANYA T AGED ABOUT 24 YEARS
Location: HIGH
COURT OF
KARNATAKA 2. SRI. RANGASWAMY
S/O. NALLAPPA
AGED ABOUT 59 YEARS
BOTH ARE RESIDENTS OF
BODABANDAHALLI VILLAGE,
NAGARAGERE HOBLI,
GOWRIBIDANUR TALUK,
CHIKKABALLAPURA DISTRICT-561 228.
3. THE ASSISTANT EXECUTIVE ENGINEER
PWD OFFICE,
Z.P. ENGINEERING DIVISION,
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RSA No. 1042 of 2018
GUDIBANDA TALUK, GUDIBAND,
CHIKKABALLAPURA DISTRICT-561 209.
...RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 08.02.2018 PASSED IN
R.A.NO.123/2016 ON THE FILE OF THE II ADDL. SENIOR CIVIL
JUDGE AND JMFC, CHICKBALLAPUR, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
31.3.2016 PASSED IN O.S.NO.180/2009 ON THE FILE OF THE
CIVIL JUDGE AND JMFC, GUDIBANDA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellant
2. The factual matrix of the case of the plaintiff while
seeking the relief of permanent injunction is that, he is the
legal heir of deceased Lakshmamma, wife of late V.G.
Gangappa and he has taken care of Smt. Lakshmamma during
her life time. Hence, she has executed a Will dated 26.08.2009
in his favour. The defendants also claim that the first
defendant is the adopted son of Smt. Lakshmamma, who is
disputing with regard to the status of the parties and also
dispute with regard to the execution of Will by
Smt. Lakshmamma. Hence, the Trial Court comes to the
RSA No. 1042 of 2018
conclusion that the plaintiff ought to have sought for the relief
of declaration, instead of seeking the relief of bare injunction.
3. The First Appellate Court also, on re-appreciation of
both oral and documentary evidence placed on record, comes
to the conclusion in Para No.22 that, when the dispute is with
regard to the status of the parties, ought to have sought for the
relief of declaration and in a suit for bare injunction, the Court
cannot decide all the issues. It is also observed by the First
Appellate Court that the Trial Court has wrongly come to the
conclusion that the defendant No.2 is the adopted son of the
deceased Lakshmamma and while making such observation,
dismissed the appeal filed by the plaintiff.
4. The learned counsel for the appellant would
vehemently contend that both the Courts committed error in
coming to such a conclusion. Hence, substantial question of
law has to be framed by this Court whether the Courts below
have properly appreciated the material available on record and
the judgment and decree passed by both the Courts are
erroneous and failed to take note of the documents - Ex.P1 and
RSA No. 1042 of 2018
Ex.D4 adoption made in favour of the first defendant. Hence, it
requires interference.
5. Having heard the learned counsel for the appellant
and also on perusal of the material available on record,
admittedly, the suit is filed for the relief of permanent
injunction. The Trial Court framed several issues in a suit for
bare injunction in view of the defense taken by the defendants.
In a bare injunction suit, the Trial Court given the finding while
answering issue Nos.6 and 7 that defendant No.3 proves that
the deceased Lakshmamma made defendant No.2 and another
one Sri Chinnappaiah as a nominee to her LIC and KGID
Insurance and also the deceased Lakshmamma cancelled her
Will dated 15.07.2006 executed in favour of the plaintiff as
alleged. In a suit for bare injunction, ought not to have
proceeded to consider the defense which have been taken and
the First Appellate Court also taken note of the findings given
by the Trial Court, ought not to have declared the first
defendant has the adopted son and the scope of the suit is very
limited and came to the conclusion that the bare injunction suit
is not maintainable and ought to have filed the suit for
declaration.
RSA No. 1042 of 2018
6. Having considered the reasons assigned by the First
Appellate Court and the Trial Court and when the serious
dispute is between the parties with regard to the status of the
parties as well as that there was a Will in favour of the plaintiff
and also the defendant has claimed that he is an adopted son
and the First Appellate Court rightly came to the conclusion
that the plaintiff ought to have sought for the relief of
declaration and not bare injunction. Hence, I do not find any
error committed by both the courts and ought to have filed the
suit for declaration. Hence, I do not find any merit in the
appeal. However, liberty is given to the appellant to seek for
better relief of declaration.
7. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
ST,CP
