Karnataka High Court
Smt Vijayalakshmi @ Sudha M R vs Smt Shyamala on 13 January, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A.NO.1751/2017 (INJ)
BETWEEN
1. SMT. VIJAYALAKSHMI @ SUDHA M R
W/O RADHAKRISHNA
AGED ABOUT 51 YEARS
2. RADHAKRISHNA
S/O SUNDARA NAYAK
AGED ABOUT 57 YEARS
BOTH ARE R/AT MUNDOLIMOOLE HOUSE
AJJAVARA VILLAGE
SULLIA TALUK, D.K-574239
..APPELLANTS
(BY SRI SACHIN B S, ADVOCATE)
AND
SMT. SHYAMALA
W/O GOVARDHAN
AGED ABOUT 42 YEARS
POTRE HOUSE, KODIYALA VILLAGE
SULLIA TALUK, D.K DISTRICT-574239
... RESPONDENT
2
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 17.0.2017
PASSED IN R.A.NO.133/2007 ON THE FILE OF THE SENIOR
CIVIL JUDGE & JMFC AT SULLIA, D.K. AND ETC.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel appearing for the appellants.
2. This appeal is filed challenging the judgment and
decree dated 17.0.2017 passed in R.A.No.133/2007 on the file of
the Senior Civil Judge and JMFC at Sullia, D.K.
3. The factual matrix of the case of the plaintiff before
the Trial Court is that the plaintiff and defendant No.1 are the
daughters of late Venkatesh Nayak. The plaintiff is the daughter
through second wife of late Venkatesh Nayak and defendant
No.1 is the daughter of said late Venkatesh Nayak through first
wife. Defendant No.2 is the husband of defendant No.1. The
marriage of defendant Nos.1 and 2 was performed in the year
1989. Venkatesh Naik had given sufficient money and jewels at
the time of her marriage and after the marriage of defendant
No.1, Venkatesh Nayak was living along with the plaintiff and her
mother Shusheela at Potre of Kodiyala village. Defendant No.1
was living with defendant No.2 at Ajjavara of Sullia taluk. The
plaintiff alone was taking care of Venkatesh Nayak and her
mother Shusheela and the plaintiff was married in the year 2000
when the Venkatesh Nayak was alive. The plaintiff and her
husband continued to stay along with Venkatesh Nayak and
Shusheela and they were taking care of them and due to love
and affection towards plaintiff, Venkatesh Nayak bequeathed his
entire property by executing a Will in favour of the plaintiff on
15.06.2005. The Venkatesh Nayak died on 19.12.2005. After
the death of Venkatesh Nayak, the plaintiff is enjoying the
properties as the absolute owner of the same. The properties
were acquired by the plaintiff is by virtue of a Will except 1.50
acres in Sy.No.180/2 as described in the schedule to the plaint.
The plaintiff filed an application for change of katha and
defendant No.1 had objected the same and the same was
rejected and mutation was entered as per the Will. After the
death of Venkatesh Nayak, the plaintiff along with her mother
and husband were residing in the plaint 'A' schedule property
and the plaintiff also in possession of the plaint 'B' schedule
property and when defendant No.1 tried to interfere with the
possession of the property of the plaintiff, a suit was filed for the
relief of permanent injunction. In pursuance of the suit notice,
the defendants appeared and filed their written statement
admitting the relationship between the parties and disputed the
very execution of the Will in favour of the plaintiff. But they
have admitted the proceedings before the Revenue Authorities
regarding the change of khatha and also order passed by the
Executive Shiresthedar and order passed by the Assistant
Commissioner but denied the possession of the 'B' schedule
property by the plaintiff and claimed 1/3rd right over the suit
schedule property by issuing a legal notice and also contended
that the Will is a forged document.
4. Based on the pleadings of the parties, the Trial Court
framed the Issues with regard to whether the plaintiff proves
that she is in possession of the suit schedule property and
whether the plaintiff proves that the defendants are tying to
interfere with the possession of the plaintiff over the schedule
properties and the defendants prove that the suit of the plaintiff
is not maintainable for want of declaratory relief. The plaintiff
examined herself as PW1 and also examined three witnesses as
PW2 to PW4 and got marked the documents at Ex.P1 to P14. On
the other hand, the defendant No.1 examined her husband as
DW1 and got marked the documents at Ex.D1 to D9. The Trial
Court after considering both the oral and documentary evidence
comes to the conclusion that the plaintiff is in possession of the
suit schedule property and there is an interference at the
instance of defendants and also comes to the conclusion that no
need of seeking any declaratory relief and the suit is filed only
for the relief of permanent injunction. The Trial Court while
decreeing the suit, dismissed the suit in respect of 'B' schedule
property. The same is challenged by the plaintiff before the First
Appellate Court in R.A.No.115/2007 and defendants have also
filed R.A.No.133/2007 questioning the judgment and decree of
the Trial Court. The First Appellate Court considering the
grounds urged in both the appeals filed by the plaintiff as well as
defendants, formulated the point with regard to whether the
judgment and decree of the Trial Court requires any interference
and having re-appreciated the material on record, the appeal
filed by the plaintiff with regard to dismissal of the suit in respect
of 'B' schedule property is allowed and granted the relief in
respect of 'B' schedule property also. The appeal filed by the
defendants is dismissed and by setting aside the judgment and
decree of the Trial Court is modified granting the relief in respect
of 'B' schedule property also. Hence, the present appeal is filed
by the defendants before this Court.
5. The learned counsel appearing for the appellants
vehemently contend that the Trial Court has committed an error
in granting the relief in respect of 'A' schedule property and also
the First Appellate Court has committed an error dismissing the
appeal filed by the appellants herein and allowing the appeal
filed by the plaintiff in respect of 'B' schedule property. The
counsel also vehemently contend that the title in respect of
schedule property is disputed by the appellants. When separate
suit has been filed by the respondent for declaration whether the
Court below is right in decreeing the suit of the plaintiff for bare
injunction which is in contrary to the provisions of specific relief
act. The counsel vehemently contend that the finding given by
both the Courts are contrary to the material placed on record
and perverse finding is given. Hence, it requires interference by
framing a substantive question of law and prayed this Court to
admit the appeal.
6. Having heard the learned counsel appearing for the
appellants and also on perusal of the material on record it is not
in dispute with regard to the relationship between the parties
that is the plaintiff and defendant No.1 and the plaintiff claims
the possession based on the Will and the same is disputed by the
defendants and the suit is filed only for bare injunction and not
sought for the relief of declaration. Hence, defence also raised
by the appellants that in the absence of any declaratory relief,
suit is not maintainable. The relief sought is only for bare
injunction and while granting the relief of bare injunction, the
Court has to consider whether as on the date of the filing of the
suit, the plaintiff is in possession of the suit schedule property
and whether there is any interference by the defendants and no
doubt, the defendants disputed the Will and it is the specific
contention of the plaintiff that the defendant No.1 marriage was
performed and plaintiff's marriage was also performed during the
lifetime of the father and after the marriage, the plaintiff and her
husband were living along with the parents of the plaintiff and
thereafter executed the Will and two witnesses have also
examined to prove the Will as PW2 and PW3. The question
involved in the matter is with regard to whether granting of
decree in favour of the plaintiff is erroneous and whether the
First Appellate Court also committed an error. It has to be noted
that the Trial Court dismissed the suit in respect of 'B' schedule
property and the same is reversed by the First Appellate Court
and the relief is also sought in respect of 'A' and 'B' schedule
properties that is only for the relief of permanent injunction.
When such being the case, the Trial Court while passing the
order taken note of the material placed on record before the
Court particularly the oral evidence of PW1 to PW4 and
documentary evidence of Ex.P1 to P14. Though notice was given
by the defendants claiming their share, they have not filed any
suit but only filed the written statement contending that they are
entitled for 1/3rd share and taken note of the fact that the
defendant No.1 was aware of the fact that there was a Will and
proceedings were taken place before the Tahsildar and Ex.P4 is
evident with regard to the proceedings of the Tahsildar in
rejecting the claim of the defendant and defendant have not
challenged the same. These are the materials taken note of by
the Trial Court and the First Appellate Court also on re-
appreciation of both the oral and documentary evidence taken
note of all the documents stand in the name of the plaintiff as on
the date of filing of the suit and also taken note of the fact that
defendants are trying to interfere with the possession of the
plaintiff. In paragraph 12, discussed with regard to the grounds
urged by the appellant in R.A.133/2007 and also taken note of
evidence of DW1 and DW2 and the other documents which have
been produced by the defendant at Ex.D1 to D9 and in
paragraphs 20, to 22, the evidence of both the parties and
documentary evidence was considered by the First Appellate
Court and answered that it does not requires any interference.
7. Having considered the material on record and also
finding of the Trial Court admittedly, this suit is filed for the relief
of permanent injunction and it is also not in dispute that while
changing the katha, defendants were also objected for transfer
of katha but katha was changed in the name of the plaintiff and
all the revenue documents are stand in the name of the plaintiff
and the same has been considered by the Trial Court and Trial
Court comes to the conclusion that the plaintiff is in possession
of the property and there is an interference by the defendants
and the First Appellate Court also on the grounds urged by both
the parties considered the material on record and reversed the
finding of the Trial Court with regard to 'B' schedule property in
declining to grant the relief and also taken note of Ex.P12- copy
of notice issued by the defendant to the plaintiff wherein the
defendant clearly admitted the possession of the plaintiff over
the suit schedule properties and hence, dismissed the appeal.
8. The counsel for the appellants would submit that
subsequent to the decree, O.S.No.5/2016 was filed by the
plaintiff for the relief of declaration and the same is pending and
when the plaintiff is already filed a suit for seeking the relief of
declaration, the defendants can urge all these grounds during
the pendency of the suit and when the suit is filed for
comprehensive relief of declaration by the plaintiff, all these
grounds which have been urged before this Court can also urge
in the suit filed in O.S.No.5/2016 by the appellants with regard
to the claim of the plaintiff in respect of Will and the contention
of the defendants that the Will is concocted document since the
father has not executed the said Will and said issue has to be
dealt with in a larger relief of comprehensive suit. Hence, I do
not find any merit in this appeal to invoke Section 100 of CPC to
frame substantive question of law.
9. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
disposed of.
Sd/-
JUDGE
SN
