Karnataka High Court
Smt. H. Sarojamma vs Smt. Rathnamma on 21 November, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
-1-
NC: 2023:KHC:42142
RFA No. 322 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO.322 OF 2017 (DEC/INJ)
BETWEEN:
1. SMT. H. SAROJAMMA
W/O. SRI. B.C. RAMAKRISHNAPPA,
AGED ABOUT 62 YEARS,
2. SRI. B.C. RAMAKRISHNAPPA
S/O. LATE PATEL CHOLURAIAH,
ALIAS CHOLURAPPA,
AGED ABOUT 69 YEARS,
BOTH ARE R/AT HOUSE NO.81,
BEHIND GOVERNMENT LIBRARY MAGADI MAIN ROAD,
HAMLET OF HEROHALLI VILLAGE,
VISHWANEEDAM POST,
BANGALORE-560 091.
...APPELLANTS
Digitally (BY SRI. D.L. JAGADEESH, SR. COUNSEL FOR
signed by SRI. RAKSHITHA D.J., ADVOCATE)
VANDANA S
Location: AND:
HIGH
COURT OF
KARNATAKA 1. SMT. RATHNAMMA
W/O. SRI. B.C. GOVINDARAJU,
AGED ABOUT 55 YEARS,
2. SRI. B.C. RAJANNA
S/O. LATE PATEL CHOLURAIAH ALIAS CHOLURAPPA,
AGED ABOUT 52 YEARS,
R1 AND R2 ARE R/AT PIPE LINE ROAD,
NEAR ANJANANAGAR BUS STOP,
ANJANANAGAR,
-2-
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RFA No. 322 of 2017
VISHWANEEDUM POST,
BANGALORE-560 091.
3. SRI. B.C. THIMME GOWDA
S/O. SRI. B.C. CHIKKANNA,
AGED ABOUT 50 YEARS,
4. SRI. B. C. THIMMA RAJAMMA
W/O. SRI. B.C. THIMME GOWDA,
AGED ABOUT 45 YEARS,
R3 AND R4 ARE R/AT BYADARAHALLI VILLAGE,
HAMLET OF HEROHALLI VILLAGE,
MAGADI MAIN ROAD,
VISHWANEEDUM POST,
BANGALORE-560 091.
...RESPONDENTS
(BY SRI. B T INDU SHEKAR, ADVOCATE FOR C/R1 & R2;
R3 & R4 ARE SERVED AND UNREPRESENTED)
THIS RFA IS FILED UNDER SEC. 96 R/W ORDER XLI RULE 1 OF
CPC AGAINST THE ORDER DATED 02.01.2017 PASSED ON IA IN OS
NO.69/2010 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE,
BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE SUIT FOR
DECLARATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the unsuccessful plaintiffs in O.S.No.69/2010
is directed against the impugned order dated 02.01.2017 and the
decree passed by the II Addl. Senior Civil Judge, Bengaluru Rural
District, Bengaluru, whereby issue No.1 regarding maintainability of
the suit was treated as preliminary issue and answered against the
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appellants - plaintiffs and consequently, dismissed the suit filed by
the appellants - plaintiffs.
2. Heard learned Senior Counsel for the appellants and
perused the material on record.
3. The material on record discloses that the appellants -
plaintiffs instituted the aforesaid suit against respondents -
defendants seeking declaration that they had acquired title to the
suit schedule property by prescriptive right of adverse possession
and for permanent injunction and other reliefs.
4. The said suit was contested by the respondents -
defendants, who took up several defences including the contention
that the suit seeking declaration of title by adverse possession was
not maintainable. Pursuant to the pleadings of the parties, the Trial
Court framed the following issues:
(i) Whether the plaintiffs prove that they have acquired
title to the schedule property by way of adverse possession by
prescriptive right over the statutory period against the defendants
right if any claiming under deceased Patel Cholurappa @
Choluraiah and his wife Smt. Doddakka?
(ii) Whether the plaintiff proves their lawful possession
and enjoyment over the suit schedule property?
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(iii) Whether the plaintiff proves the alleged interference
by the defendants?
(iv) Whether the plaintiff is entitle for relief of permanent
injunction?
(v) Whether the defendants prove that the partition deed
dated 26.02.1996 is a anti-dated created document?
(vi) Whether the suit is properly valued and court fee paid
is sufficient?
(vii) Whether this Court has got territorial jurisdiction to try
this suit?
(viii) Whether the suit is barred by limitation?
(ix) What order or decree?
5. The plaintiff Nos.1 and 2 examined themselves as
PW1 and PW2 and documentary evidence at Ex.P1 to Ex.P50
were marked on their behalf. Defendant No.2 examined himself as
DW1 and documentary evidence at Ex.D1 to Ex.D3 were marked.
At the stage of cross-examination of DW1, instead of continuing
with the evidence, defendants contended that issue regarding
maintainability of the suit as framed in issue No.1 had to be
decided as preliminary issue before proceeding further in the
matter. Accepting the said contention of the defendants, the Trial
Court proceeded to consider issue No.1 regarding maintainability of
the suit as a preliminary issue and proceeded to answer the same
against the appellants - plaintiffs and consequently, dismissed the
suit as not maintainable by placing reliance upon the judgment of
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the Apex Court in the case of Gurudwar Saheb Vs.
Gramapanchayath Village and another - 2014(1) SCC 669. As
can be seen from the impugned order passed by the Trial Court, no
findings have been rendered on the remaining issues framed by
the Trial Court nor is their any finding on the merits / demerits of
the rival contentions on the basis of the evidence adduced by the
parties. Aggrieved by the impugned order passed by the Trial
Court, particularly its finding on issue No.1, the appellants -
plaintiffs are before this Court by way of the present appeal.
6. As stated supra, the sole ground on which the Trial
Court proceeded to answer issue No.1 against the plaintiffs and
holding that the suit for declaration of title by adverse possession
was not maintainable in the light of the judgment of the Apex Court
in the Gurudwar's case supra. However, during the pendency of
the present appeal, the larger Bench of the Apex Court in the case
of Ravinder Kaur Grewal and others Vs. Manjit Kaur & others -
AIR 2019 SC 3827 has over-ruled the judgment of its earlier
judgment in the Gurudwar's case supra and has categorically held
that the plea of adverse possession can be used both as a shield
and sword and was available to the plaintiff in the suit and the said
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suit claiming declaration of title on the basis of adverse possession
was maintainable in law. It is also relevant to state that except
holding that the suit was not maintainable by placing reliance upon
the Gurudwar's case supra, the Trial Court has not recorded /
rendered any findings on the merits / demerits of the rival
contentions. Under these circumstances, since the basis of the
order of the Trial Court has been over-ruled by the subsequent
judgment in Ravinder Kaur Grewal's case supra, I am of the
considered opinion that the impugned order passed by the Trial
Court and consequential judgment and decree deserve to be set
aside and matter remitted back to the Trial Court for
reconsideration afresh on all aspects of the matter and on all
issues, in accordance with law.
7. In the result, I pass the following:
ORDER
(i) The appeal is hereby allowed.
(ii) The impugned order dated 02.01.2017 and the
decree passed in O.S.No.69/2010 by the II Addl. Senior Civil
Judge, Bengaluru Rural District, Bengaluru, are hereby set
aside.
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(iii) Matter is remitted back to the Trial Court for
reconsideration afresh on all aspects of the matter and on all
issues, in accordance with law.
(iv) Liberty is reserved in favour of both the parties to
adduce additional oral and documentary evidence in support
of their respective claims.
(v) All rival contentions on all aspects of the matter
are kept open and no opinion is expressed on the same.
(vi) Parties undertake to appear before the Trial
Court on 18.12.2023 without awaiting further notice from the
Trial Court.
(vii) The Trial Court is directed to dispose of the suit
as expeditiously as possible and at any rate not later than
eight months from 18.12.2023.
Sd/-
JUDGE
SV
