Karnataka High Court
Mr Allan Sunder Raj vs Mrs Miriam Meera Kumar on 4 April, 2024
Author: K.Natarajan
Bench: K.Natarajan
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RFA No. 659 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 659 OF 2021 (INJ)
BETWEEN:
MR. ALLAN SUNDER RAJ,
SON OF LATE MAJOR T.A. SUNDER RAJ,
AGED ABOUT 80 YEARS,
RESIDING AT NO.14,
MEG OFFICERS COLONY,
JAI BHARATH NAGAR,
BANASWADI MAIN ROAD,
BENGALURU - 560 033.
...APPELLANT
(BY SRI.DHANANJAY JOSHI, SENIOR COUNSEL A/W
SMT.VANI MAHAJAN., ADVOCATE FOR
SRI.VACHAN H.U., ADVOCATE)
AND:
Digitally signed
by V KRISHNA MRS. MIRIAM MEERA KUMAR,
Location: High WIFE OF COL. SEBASTIAN KUMAR (RTD.),
Court of
Karnataka AGED ABOUT 59 YEARS,
RESIDING AT NO.8/302,
CARLESTON ROAD, COOKE TOWN,
BENGALURU - 560 005.
REPRESENTED BY HER HUSBAND/
GPA HOLDER COL. SEBASTIAN KUMAR (RTD).,
...RESPONDENT
(BY SRI. M ARUN PONAPPA., ADVOCATE FOR C/R)
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RFA No. 659 of 2021
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE
1 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED
23.03.2021 PASSED IN OS.NO.6160/2017 ON THE FILE OF THE
XV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, PARTLY DECREEING THE SUIT FOR MANDATORY
INJUNCTION AND PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/defendant under Section
96 of CPC for setting aside the judgment and decree passed by the
15th Additional City Civil and Sessions Judge, Bengaluru, in
O.S.No.6160/2017 dated 23.3.2021.
2. Heard the arguments of the learned counsel for the
appellant and the counsel for the respondent.
3. The rank of the parties retained for convenience of the
Court.
4. The plaintiff filed the suit against the defendant for
restraining the defendant from interfering with the peaceful
possession and enjoyment of the property bearing No.14, situated
at MEG Officers Colony, Jai Bharath Nagar, Banaswadi Main
Road, Bangalore, measuring East 125 feet, West 90 feet, North
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140 feet and South 65 feet, morefully described as schedule
property which belongs to the father-in-law of the plaintiff, he had
purchased the same from Madras Sappers Officers House Building
Cooperative Society on 06.02.1967 and said to have constructed
the building. The defendant said to be interfered with the peaceful
possession and enjoyment of the property. Therefore the suit
came to be filed and the defendant contested the matter and finally
the suit was decreed, which is under challenge.
5. Though the defendant filed written statement by taking
various contentions and prayed for dismissal of the suit the trial
Court famed the following issues -
"1. Whether the plaintiff proves her ownership over
the suit schedule property?
2. Whether the plaintiff proves that the defendant
has trespassed over the suit schedule property illegally
and has constructed a wall measuring approximately 4
feet x 6 feet on the southern side of the suit schedule
property, thereby blocking free access to her 1st floor
property?
3. Whether the plaintiff is entitled for the relief of
mandatory injunction as sought?
4. What order or decree? "
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and found the GPO of plaintiff was examined as PW.1 and got
marked 6 documents EXs.P1 to P6 and defendant was examined
as DW.1 and no documents were marked. After hearing the matter
the trial Court decreed the suit dated 23.03.2021. Being aggrieved
by the same the defendant is before this Court.
6. Learned counsel for the appellant strenuously contended
that the defendant was not the owner of the property and the wife
of the defendant Smt. Prabha Allan, it was sold in the year 2004
itself. Therefore decree was obtained against the person who was
not the actual owner of the property and the trial Court proceeded
in decreeing the suit and hence prays for setting aside the same.
The respondents counsel objected the appeal and also filed copy
of the judgment in O.S. No.6862/2021 and submits that the
defendant/appellant not intimated with the trial Court or brought to
the notice of the plaintiff that he is now owner of the property. He
was continuously contested the matter without submitting the truth
and he has suppressed the material and after the decree when the
plaintiff went to the spot for execution of the decree then he came
to know that the property is not standing in the name of defendant-
appellant, but it stands in the name of his wife. Therefore on the
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identical facts he has filed one more suit against the wife of this
appellant Smt. Prabha Allan in O.S. No.6862/2021 and obtained
the decree on 29.11.2023 and on the same property in identical
matter except the name of the defendant - appellant the decree
was obtained. Therefore he prays that the appeal has become
infructuous and hence prays for dismissal.
7. Having heard the arguments and perused the documents,
the point that arises for consideration in the appeal is,
" Whether the decree of the trial Court against the
non-owner of the property is liable to be set aside?"
8. Having heard the counsels and perused the records it is
the case of the respondent - plaintiff that he has earlier filed a suit
against the appellant - defendant and obtained a decree and the
appellant not intimated the Court or brought to the notice of the
plaintiff that he is not the owner of the property, but he has
suppressed the facts and contested the matter and allowed the
Court to pass the decree and he came to know that the appellant -
defendant is not owner only when he went to the spot for execution
of the decree and therefore he has filed one more suit against wife
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of this appellant and obtained the decree on the identical set of
facts and on the same cause of action except changing the name
of the defendant. The respondent's counsel also produced OS
No.6862/2021 dated 29.11.2023. Therefore the learned counsel
for respondent submits that the appeal is not maintainable. On the
other hand the learned counsel for the appellant contended that the
decree obtained against the non owner and the wife of the
appellant was the owner of the property, once the plaintiff filed one
more suit against the wife and obtained the decree, this suit has to
be withdrawn or suit to be dismissed as not pressed. Such being
the case the decree is nonest in the eye of law. Hence prays for
allowing the appeal and to dismiss the suit.
9. Considering the arguments of the learned counsel for the
parties and on perusal of the records, admittedly the judgment in
O.S. No.6862/2021 which reveals the same set of facts, exactly
same allegation made in the suit and obtained the decree against
the wife of the appellant, namely, Prabha Allan the suit schedule
property in the O.S. No.6862/2021 and the suit schedule property
in the suit which is challenged in O.S. No.6160/2017 are one and
the same. The plaintiff after coming to the knowledge that the
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appellant is not the owner immediately he has filed the suit against
the wife of the appellant holding that he is not the owner and
obtained the decree against the wife of the defendant. Of course
challenged the same by the wife is a different matter. It is left to
the discretion of the defendant in the O.S. No.6862/21 and merely
the same was not challenged by the wife of the appellant, the suit
filed by the plaintiff against this appellant defendant and obtained
decree cannot be allowed to operate against the unknown owner or
previous owner of the said property. This was settled in a suit for
injunction which was given against the person but not against the
land. Therefore though the learned counsel for the appellant
submits that the matter could be remanded back and he can
withdraw the suit, that cannot be permissible once the appeal is
filed, it is continuation of the original suit. Such being the case the
contention of the learned counsel for the respondent is not
acceptable. In O.S.No.6862/2021 the decree obtained against
another person who is not the owner the suit is liable to be
dismissed. Therefore in view of obtaining decree by the
respondent this appeal deserves to be allowed. Accordingly the
appeal is allowed. The decree passed in O.S. No.6160/2017 is set
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aside and the suit filed by the respondent plaintiff is hereby
dismissed.
Draw decree accordingly.
Sd/-
JUDGE
YKL
