Karnataka High Court

Muniswamy Since Decd By Lrs vs Sri G Vijayakumar on 12 July, 2023

Bench: H T Prasad

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                                                       NC: 2023:KHC:24116
                                                         RFA No. 1139 of 2006




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 12TH DAY OF JULY, 2023

                                              BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                         REGULAR FIRST APPEAL NO. 1139 OF 2006 (DEC)
                   BETWEEN:

                   1.     MUNISWAMY
                          SINCE DECD BY LRS

                   1(a) PUTTAMMA
                        W/O MUNISWAMY
                        AGED 66 YEARS

                   1(b) YASHODHA
                        W/O SAMPATH
                        D/O MUNISWAMY
                        AGED ABOUT 37 YEARS

                   1(c) RAMACHANDRA
                        S/O MUNISWAMY
Digitally signed        SINCE DEAD BY HIS LR'S
by
DHANALAKSHMI
MURTHY             1(c)(i) SMT JAYALAKSMI
Location: High             W/O LATE RAMACHANDRA
Court of                   AGED ABOUT 49 YEARS
Karnataka
                   1(c)(ii)SMT. LATA
                           W/O PRAKASH
                           D/O LATE RAMACHANDRA
                           AGED ABOUT 32 YEARS

                   1(c)(iii) SRI SURESH
                             S/O LATE RAMACHANDRA
                             AGED ABOUT 29 YEARS
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                                       NC: 2023:KHC:24116
                                         RFA No. 1139 of 2006




1(c)(iv) SRI MUNIKANTA
         S/O LATE RAMACHANDRA
          AGED ABOUT 26 YEARS

            ALL ARE RESIDING AT
            No.34, 1ST MAIN
            VIJAYA RANGAM LAYOUT
            BASAVANAGUDI
            BENGALURU-560 004.

1(d)        SRINIVASA
            S/O MUNISWAMY
            SINCE DEAD BY LR'S

1(d)(i)     SMT. MANJULA @ ANJALI
            W/O LATE SRINIVASA
            AGED ABOUT 48 YEARS

1(d)(ii)    KUM. SHARANIYA
            D/O LATE SRINIVASA
            AGED ABOUT 27 YEARS

1(d)(iii)   SMT. PRIYA
            W/O SANTHOSH
            D/O LATE SRINIVAS
            AGED ABOUT 25 YEARS

1(d)(iv)    KUM AISHWARYA
            D/O LATE SRINIVASA
            AGED ABOUT 19 YEARS

            ALL ARE RESIDING AT
            No.40, MARUTHI ROAD
            8TH CROSS, 3RD MAIN
            SHAKAMBARI NAGAR
            J.P.NAGAR 1ST PHASE
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                                     NC: 2023:KHC:24116
                                       RFA No. 1139 of 2006




          BBMP, BENGALURU-560 078.

1(e)     KRISHNAMURTHY
         S/O MUNISWAMY
         AGED ABOUT 33 YEARS

        ALL ARE HINDUS
        R/O NO 1, VIJAYANAGAR LAYOUT
        BASAVANAGUDI, BANGALORE-560 004.
                                              ...APPELLANTS
(BY SRI. H RAMACHANDRA, ADVOCATE AND
SRI. H R ANANTHAKRISHNA MURTHY, ADVOCATE)
AND:

1.     SRI. G VIJAYAKUMAR
       HINDU MAJOR
       R/O NO 5TH CROSS
       T R NAGAR, BANGALORE 28.

2.     SRI K T PRAKASH
       S/O K C THIMAIAH CONTRACTOR
       HINDU MAJOR
       6TH CROSS, T R NAGAR
       BANGALORE 28.

3.     THE CORPORATION OF THE
       CITY OF BANGALORE
       BY ITS COMMISSIONER

4.     SRI PARTHASARATHY
       S/O LATE BAJJANNA
       HINDU, MAJOR
       R/O NO 229, II MAIN 3 BLOCK
       THYARAJANAGAR, BANGALORE.
                                            ...RESPONDENTS
(BY SRI. PAWAN KUMAR, ADVOCATE FOR
SRI. H DEVENDRAPPA, ADVOCATE FOR R3:
NOTICE TO R1, 2 AND R4 ARE SERVED AND UNREPRESENTED)
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                                     NC: 2023:KHC:24116
                                        RFA No. 1139 of 2006




     THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGEMENT AND DECREE DATED: 23.01.2006 PASSED IN
O.S.NO.10666/1987 ON THE FILE OF THE XXVIII ADDL.CITY
CIVIL JUDGE, MAYOHALL UNIT, BANGALORE, DISMISSING THE
SUIT FOR PERMANENT INJUNCTION AND DECLARATION.

     THIS APPEAL, COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

1. This appeal is filed by the plaintiff under Section 96

of CPC challenging the judgment and decree dated

23.01.2006 passed by the XXVIII Addl. City Civil Judge,

Mayo Hall, Bangalore, in O.S.No.10666/1987 whereby the

suit filed for declaration, injunction and recovery of

possession has been dismissed.

2. For the sake of convenience, the parties are referred

to as per their rankings before the trial court.

3. The case of the plaintiff is that one M.Muni Reddy

was the absolute owner of a Site bearing No.27 formed

out of Sy.No.34/IA of Nagasandra Village now forming a

NC: 2023:KHC:24116 RFA No. 1139 of 2006

part of City Corporation numbered as 22A. The said Muni

Reddy has sold the suit property in favour of the

Chengalaraya Reddy on 11.12.1961, who in turn sold the

same in favour of the plaintiff for valuable consideration on

21.10.1963, which has been duly registered. The further

case of the plaintiff is that defendant No.2 is the

contractor acting for defendant No.1 and defendant No.1

was trying to erect a structure on the properties without

any right. Defendant No.3 has made out a katha in favour

of defendant No.1. Therefore, the plaintiff has filed the suit

for declaration, injunction and recovery of possession.

4. On service of summons, defendants appeared

through their counsel and filed written statements. The

defendant No.1 in his written statement has denied that

Muni Reddy was the absolute owner of the suit property

and that he sold the suit property to Chengalaraya Reddy.

He also denied that plaintiff purchased the said property

from the Chengalaraya Reddy through registered sale

deed dated 21.10.1963. He further contended that he is

NC: 2023:KHC:24116 RFA No. 1139 of 2006

the bonafide purchaser of house property bearing

Municipal No.22/A situated at III Block, Thyagarajanagar

Corporation Division measuring East to West 20 feet and

North to South 30 feet under registered sale deed dated

28.10.1986. He has paid the taxes to the Corporation. He

has got sanctioned the licence and plan and constructed a

house and he is in possession of the property with his

family members. Hence, he sought for dismissal of the

suit.

5. On the basis of the pleadings of the parties, the

following points were framed before the trial court:

1. Does plaintiff prove that he is the owner of the suit property?

2. Does he prove his possession of suit property on the date of the suit?

Re-casted Issues framed on 29.08.2005:-

3. Whether the first defendant proves that he is a confide purchaser of the property No.22/A III Block, Thyagrajanagar and has put up construction in this property?

NC: 2023:KHC:24116 RFA No. 1139 of 2006

4. Whether the suit schedule property is identifiable?

5. Whether the suit is barred by Law of limitation?

6. Whether the plaintiff is entitled for declaration as sought for?

7. Whether the plaintiff is entitled for the relief of permanent injunction?

8. What order or decree?

Addl. Issues framed on 26.08.2005

1. Whether the plaintiff proves that the defendant has illegally entered and constructed in the plaintiff's property?

2. Whether the plaintiff is entitled for mandatory injunction as sought?

Addl. Issue framed on 06.12.2005:-

1. Whether the plaintiff is entitled for possession as sought for?

6. To prove the case, on behalf of the plaintiff, original

plaintiff has been examined as PW-1. During the pendency

of the suit, the original plaintiff died and one of his legal

representative has been examined as PW-2 and produced

NC: 2023:KHC:24116 RFA No. 1139 of 2006

11 documents marked as Exs.P-1 to P-11. On behalf of the

defendants, defendant No.1 has been examined as DW-1

and produced 11 documents marked as Ex.D-1 to 11. On

appreciation of the oral and documentary evidence, the

trial court answered issue Nos.1, 2, 5, 6, 7 and additional

issues in negative, issue No.3 in partly affirmative and

accordingly dismissed the suit. Being aggrieved by the

same, the plaintiffs have filed this appeal.

7. The learned counsel for the appellants-plaintiffs has

contended that the Trial Court on 1.3.1996 had decreed

the suit in favour of the plaintiffs. Being aggrieved by the

same, the defendant No.1 had filed RFA No.354/1996

before this Court. This Court by judgment dated 4.6.2002

had remanded the matter to the Trial Court for fresh

disposal. On remand, the Trial Court without appreciating

the evidence on record, has erred in dismissing the suit by

impugned judgment dated 23.1.2006. He further

contended that as per the directions of this Court issued in

RFA No.354/1996, the Commissioner has been appointed

NC: 2023:KHC:24116 RFA No. 1139 of 2006

and the Commissioner has submitted a report stating that

the boundaries of suit schedule property are tallying with

the documents produced by the plaintiffs. The Trial Court

without properly considering the report of the

Commissioner, has erred in dismissing the suit. He further

contended that it is very clear from the evidence of PW-1

and documents produced by plaintiffs at Ex.P-1 to 11 that

the suit schedule property belongs to the plaintiffs. The

defendant has illegally encroached the same. The Trial

Court, contrary to the materials available on record has

dismissed the suit. He further contended that if this court

grants one more opportunity, he will examine the adjacent

site owner as per the directions of this court. Hence, he

sought for allowing the appeal.

8. Respondent Nos.1, 2 and 4 are served and

unrepresented. Respondent No.3 is represented by a

counsel. He submitted that respondent No.3 is only a

formal party.

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NC: 2023:KHC:24116 RFA No. 1139 of 2006

9. Heard the learned counsel for the appellants. Perused

the original records.

10. After hearing the learned counsel for the appellants

and respondent No.3, the point that arises for

consideration in this appeals is "Whether the judgment

and decree passed by the Trial Court is perverse, arbitrary

and capricious and does it call for interference of this

Court"?

11. The case of the plaintiffs is that the suit schedule

property originally belonged to M.Muni Reddy, who in turn

sold the suit property in favour of the Chengalaraya Reddy

on 11.12.1961. The said Chengalaraya Reddy in turn sold

the same in favour of the plaintiff for valuable

consideration on 21.10.1963, which has been duly

registered. Defendant No.1 has claimed that he is the

bonafide purchaser of the suit property under registered

sale deed dated 28.10.1986. The actual dispute is in

regard to the identity of the property. This Court in earlier

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NC: 2023:KHC:24116 RFA No. 1139 of 2006

round of litigation in RFA No.354/1996 disposed of on

4.6.2002 in paragraph-8 has held has under.

8. It is not in dispute that both the parties are claiming title to the site said to have been purchased by him from Munireddy and Parthasarathy respectively. According to the plaintiff, he has purchased site No.27, which is measuring 20*30 as per the boundaries mentioned under Ex.P-1. According to the 1st defendant, he has purchased site No.22/A which is also measuring 20*30 but the boundaries are altogether different. Therefore, it is clear that the actual dispute between the parties only is in regard to the identity of the property purchased by the respective parties. It is unfortunate that both the parties have not adduced satisfactory evidence to show that the property claimed by each of the parties is in respect of one site. Plaintiff has also not examined his neighbors to show that his site is in existence and that on the said site 1st defendant has constructed a building claiming it to be his site No.22/A. Similarly, defendant has also not examined any witness to show that the has constructed a building on site No.22/A and that the site claimed by the plaintiff is altoghether different and situated away from the site purchased by the

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NC: 2023:KHC:24116 RFA No. 1139 of 2006

defendant. Similarly, parties herein have also not requested the court to appoint a commissioner to submit his report in regard to the boundaries of the house constructed by the 1st defendant or to show that 1st defendant has constructing a building on the site which is being claimed the plaintiff. It is also relevant to note in this connection that the trial court which has granted the decree by declaring the plaintiff as owner in possession of the property has refused to grant a decree for mandatory injunction. If the defendant is in possession of the property, there is no point in holding that plaintiff is in lawful possession of the property. Admittedly, 1st defendant has constructed the building after obtaining plan from the corporation as per Ex.D-9 which fact is not disputed by the plaintiff. Therefore, the decree granted by the trial court is not based on proper appreciation of the pleadings and evidence adduced by the parties. In the circumstances, I have to hold that plaintiff has not proved his title to the property and similarly the trial court has also committed a mistake in granting a decree declaring that the plaintiff is in lawful possession of the property as an absolute owner. Since the parties have to identify the respective sites said to have been purchased by them, as the identity of the

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NC: 2023:KHC:24116 RFA No. 1139 of 2006

property is in dispute, it would be appropriate for this court to set aside the judgment and decree of the trial court and remit the matter to the trial court to hold a fresh enquiry by giving opportunity for both the parties to appoint a commissioner in order to identify the properties claiming by each of the parties, trail court shall consider the same on merits.

12. Pursuant to the directions of this Court issued in RFA

No.354/1996, the Commissioner has been appointed. The

Commissioner has submitted a report marked as Ex.C-3.

As per the directions of this Court, the plaintiffs have not

examined any adjacent site purchasers to show that their

site is in existence. The Trial Court has also not properly

considered the report submitted by the Commissioner.

13. Under the circumstances and in the interest of

justice, I am of the opinion that the matter requires to

be remanded to the Trial Court for fresh consideration.

Hence, I pass the following order:

a) The appeal is allowed.