Karnataka High Court
Smt. N. V. Pushpamma vs Sri. G. V. Nagaraj 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.2070/2017
BETWEEN
SMT. N. V. PUSHPAMMA
W/O G. V. GOPALA KRISHNA GOWDA
HINDU
AGED ABOUT 65 YEARS
R/AT GERAHALLI VILLAGE
KASABA HOBLI, CHICKABALLAPUR TALUK
CHICKABALLAPUR DISTRICT-562101
...APPELLANT
(BY SRI YESHU BABA R MISHRA, ADVOCATE)
AND
SRI G. V. NAGARAJ
S/O. LATE G. V. PATHY
HINDU
AGED ABOUT 73 YEARS
R/AT NO.29/1, 2ND "C" MAIN ROAD
DUPANAHALLI VILLAGE
HAL 2ND STAGE
BANGALORE-560 038
... RESPONDENT
(BY SRI YASHWANTH NETHAJI N T ADVOCATE FOR
SRI K V NARASIMHAN, ADVOCATE)
2
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 30.06.2017
PASSED IN R.A.NO.213/2011 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHICKBALLAPUR
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 parties.
2. This appeal is filed challenging the judgment and
decree dated 30.06.2017 passed in R.A.No.213/2011 on the file
of the II Additional Senior Civil Judge and JMFC, Chickballapur.
3. The factual matrix of the case of the plaintiff before
the Trial Court is that the father of the plaintiff and the plaintiff
got the suit schedule property in terms of the release deed dated
21.08.1972 and the defendant had purchased a portion of the 'A'
schedule property on 04.05.1987 except the property measuring
20 x 20 feet which was given to the plaintiff and his father vide
release deed dated 21.08.1972 and the said sale was made by
the father of the plaintiff and the plaintiff was not a party to the
said sale deed and the defendant in the said suit, appeared and
contested the matter contending that earlier, the plaintiff had
filed the suit in O.S.No.572/192 seeking the relief of permanent
injunction and the said suit was dismissed and against the said
judgment of the Trial Court, an appeal was filed and the said
appeal was also dismissed. Being aggrieved by the dismissal of
the said appeal, second appeal was filed and the second appeal
was also dismissed with a liberty to seek for the relief of
declaration so as advised in respect of the property in which the
plaintiff is in possession excluding the property covered under
the sale deed of the appellant herein that is at Ex.D4 and the
Trial Court considering the evidence of the PW1 and DW1 and
documentary evidence at Ex.P1 to P11 and Ex.D1 to D12,
decreed the suit in part declaring that the plaintiff is the owner
of 'B' schedule property and dismissed the suit seeking the relief
for share in the suit schedule property. Being aggrieved by the
judgment of the Trial Court, the plaintiff has filed
R.A.No.213/2011 and the First Appellate Court allowed the
appeal and set aside the judgment and decree with respect to 'A'
schedule property and declared that the plaintiff is entitled for
partition and separate possession of half share in 'A' schedule
property and further directed the defendant to make partition in
'A' schedule property and deliver the possession of half share to
the plaintiff. Hence, the present second appeal is filed by the
defendant.
4. The main contention of the learned counsel
appearing for the appellant that the crux of the matter is very
clear that when the plaintiff had filed the suit in the year 1992
for the relief of permanent injunction, the same was dismissed
and the dismissal order was challenged in the appeal and the
said appeal was also dismissed and in the second appeal also,
only a liberty was given in respect of property which has been
retained to the extent of 20 x 20 feet and not to the extent of 86
x 90 feet in which, the plaintiff and his father had got the
property under the release deed dated 21.08.1972. The counsel
would submit that the First Appellate Court has committed an
error granting the relief in respect of the claim which was rightly
turned down by the Trial Court. The counsel also brought to
notice of this Court to the order passed by this Court in
R.S.A.No.2475/2006 particularly, in paragraph 7 of the
judgment, the liberty was given to the plaintiff to initiate a
proper suit in an appropriate forum seeking the relief of
declaration in respect of the property which he claims under
Ex.P1 and if he is in possession of the property other than Ex.D4
to protect his possession in respect of the said property and seek
an appropriate relief if he so advised. Hence, the order passed
by this Court in the said R.S.A. is clear that the plaintiff is at
liberty to file a proper suit for the relief of declaration with
regard to the extent of the property in which he is in possession
and confirmed the judgment of the Trial Court passed in
O.S.No.572/1992 and also judgment and decree passed in
R.A.No.83/2003 and also made an observation that the property
which the defendant purchased under Ex.D4 is not the entire suit
schedule property and in the schedule to the sale deed at Ex.D4,
the property purchased by the defendant is clearly demarcated
with the boundaries and also observed that the defendant is
entitled to that extent of the property which she has acquired
under Ex.D4 hence, the defendant is in possession of the
property covered under Ex.D4 and also observed that it is
always open for the plaintiff to initiate a proper suit in an
appropriate forum seeking the relief of declaration in respect of
the property which he claims under Ex.P1 and if he is in
possession of the property other than Ex.D4 to protect his
possession in respect of the said property. The counsel relying
upon this finding contended that the liberty is given only to the
extent in which he is in possession other than the property
mentioned in Ex.D4 hence, the very approach of the First
Appellate Court is erroneous hence, it requires interference.
5. The learned counsel appearing for the
respondent/plaintiff would vehemently contend that the
observation made by this Court in R.S.A.No.2475/2006 is very
clear in page 7 in the last portion that it is always open to the
plaintiff to initiate a proper suit in appropriate forum seeking the
relief of declaration in respect of the property which he claims
under Ex.P1 and if he is in possession of the property other than
Ex.D4 should protect his possession in respect of the said
property which he claims under Ex.P1 and based on that
observation only the suit is also filed for the relief in respect of
entire property and the plaintiff was not the party to the sale
deed executed in favour of the appellant herein vide sale deed
dated 04.05.1987. The counsel also submits that it is not in
dispute that the release deed was executed on 21.08.1972 in
favour of the plaintiff as well as his father and this Court in
R.S.A.No.2475/2006 has made an observation that in so far as
the portion of the property at Ex.D4 is concerned, this judgment
should not operate as res-judicata. Hence, the relief is sought
for declaration, partition and permanent injunction and same has
to be considered by the First Appellate Court and passed an
order even in respect of the share in the suit schedule property
hence, it does not requires any interference.
6. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material available
on record, It is not in dispute that earlier, the plaintiff had filed a
suit in O.S.No.572/1992 for the relief of permanent injunction
and the same was dismissed and it is also not in dispute that an
appeal is filed against the judgment of the Trial Court in
R.A.No.83/2003 and the same was also dismissed. It is also not
in dispute that R.S.A.No.2475/2006 wais filed before this Court
and having perused the judgment of this Court in the said R.S.A.
particularly, paragraph 7, it is clear that subject matter of the
suit is the subject matter of the release deed at Ex.P1 and the
defendant also not disputed that the property was derived to the
plaintiff as well as his father on 21.08.1972 and admittedly the
father of the defendant has to put the defendant in possession of
the property covered under the sale deed as per Ex.D4. Hence,
there is no dispute with regard to the sale made by the father in
favour of present appellant and also the plaintiff has suffered a
judgment in dismissing the suit and the same is confirmed in the
appeal and also confirmed in the second appeal but an
observation was made in the second appeal that the it is open to
the plaintiff to initiate a proper suit in an appropriate forum
seeking the relief of declaration on the basis of Ex.P1 that is
release deed to the extent of the property which is in his
possession and seek an appropriate relief if he so advised.
Hence, it is clear that in respect of the remaining property which
had been retained by the father by selling the property to the
extent of 20 x 20 feet, the plaintiff can seek the relief of
declaration and not given to the extent of the property which
was sold under Ex.D4.
7. The counsel for the respondent/plaintiff brought to
notice of this Court to last portion of the order in page 7 passed
in R.S.A.No.2475/2006 wherein it is also observed that it is
always open for the plaintiff to initiate a proper suit in an
appropriate forum seeking the relief of declaration in respect of
the property which he claims under Ex.P1 and if he is in
possession of the property other than Ex.D4 to protect his
possession in respect of the said property. Hence, it is clear that
if he is in possession of the property other than Ex.D4 to protect
his possession in respect of the said property and the same
cannot be read in part only to the extent that he has to seek the
relief of declaration in respect of the property which he claimed
under Ex.P1 and full sentence has to be read and having read
the same, it is clear that if he is in possession of the property
other than Ex.D4 to protect the possession in respect of said
property. Hence, the very contention of the respondent/plaintiff
counsel that liberty is given to claim a right under Ex.P1 in
respect of entire property cannot be accepted. Having considered
the material on record, the First Appellate Court committed an
error in reversing the finding of the Trial Court with regard to
granting of share when already this Court in
R.S.A.No.2475/2006 made it clear that liberty is given to only in
respect of the property which has been retained by the father by
selling the property that too if he is in possession of the
property, he can seek for the proper relief inspite of it the suit is
filed for the relief of declaration, partition and separate
possession in respect of the entire property and when this Court
made it clear with regard to Ex.D4 under which the property was
sold in favour of the appellant herein, the plaintiff cannot seek
any relief and the same has not been read properly by the First
Appellate Court in modifying the judgment and decree of the
Trial Court in respect of granting of half share in respect of the
property which is the subject matter in terms of Ex.D4 and
hence, the order passed by the Trial Court has to be set aside.
8. In view of the discussions made above, I pass the
following:
ORDER
The appeal is allowed.
The judgment and decree passed by the First
Appellate Court in R.A.No.213/2011 granting half share in
respect of the property covered under Ex.D4 which is in
O.S.No.572/1992 is set aside.
In view of disposal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
disposed of.
Sd/-
JUDGE
SN
