Karnataka High Court
D. Laxman vs M.V. Shanth Kumar on 1 August, 2024
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NC: 2024:KHC:30777
RSA No. 1018 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.1018 OF 2015 (POS)
BETWEEN:
D. LAXMAN
S/O NARAPPA
AGED ABOUT 58 YEARS
RESIDING AT NO. 952, 1ST CROSS
SHEKHARAPPA NAGAR
DAVANAGERE - 577 002.
...APPELLANT
(BY SRI. C PRAKASH, ADVOCATE)
AND:
M.V. SHANTH KUMAR
S/O C V VENKATACHALLAIAH
Digitally AGED ABOUT 61 YEARS
signed by R BUSINESSMAN, R/O 1ST CROSS
DEEPA SHEKARAPPA NAGAR
Location: DAVANAGERE - 577 002
HIGH ...RESPONDENT
COURT OF (BY SRI. PRASANNA B R, ADVOCATE)
KARNATAKA
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 05.08.2014 PASSED IN RA
NO. 31/2012 ON THE FILE OF THE III ADDL. SENIOR CIVIL
JUDGE, DAVANAGERE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 04.07.2012
PASSED IN OS NO.52/2007 ON THE FILE OF THE PRL. CIVIL
JUDGE, DAVANAGERE.
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RSA No. 1018 of 2015
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed challenging the
judgment and decree dated 05.08.2014 passed in
R.A.No.31/2012 by the Court of III Additional Senior Civil
Judge, Davanagere, confirming the judgment and decree
dated 04.07.2012 passed in O.S.No.52/2007 by the Court
of Principal Civil Judge(Jr. Dvn.) at Davanagere.
2. The parties are referred to as per their ranking
before the trial Court. The appellant is the plaintiff and
respondent is the defendant. The plaintiff filed a suit for
cancellation of the decree passed in O.S.No.213/2003 on
the file of Additional Civil Judge (Jr. Dn.), Davangere and
sought for mandatory injunction directing the defendant to
handover the possession of the suit schedule property to
the plaintiff and for permanent injunction.
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3. Brief facts of the case are as under:
It is the case of the plaintiff that, the suit schedule
property bearing D.No.952 is situated at Shekarappa
Nagar, 1st Cross, Davanagere, which is constituting of RCC
Building measuring 25 X 50 ft. It is contended that, the
plaintiff is in possession of the suit schedule property. It is
contended that the defendant filed a suit in
O.S.No.213/2003 against the plaintiff on the file of
Additional Civil Judge (Jr.Dn.), Davanagere in respect of
D.No.969/3 for the relief of ejectment. The plaintiff was
appeared and filed the written statement denying the
averments made in the said plaint. The present plaintiff
has not seriously contested in the said suit, since the
property number of the suit schedule property was
different. The said suit was came to be decreed and also in
the execution proceedings, the executing Court issued
warrant for delivery of possession. The present plaintiff
had delivered the vacant possession of the property
bearing D.No.952. The defendant by misrepresentation
and by concealing the material true facts, obtained decree
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by mentioning wrong boundaries and taken the possession
of the plaintiff's property bearing D.No.952. Hence, cause
of action arose for the plaintiff to file a suit for declaration.
4. The defendant filed the written statement
denying averments made in the plaint. It is contended
that, the property bearing D.Nos.969/3 and 952 are totally
different properties and situated at different places. It is
contended that, the defendant had purchased the property
bearing D.No.969/3 from its erstwhile owner through the
registered sale deed and constructed houses. It is
contended that the plaintiff is a close friend of the
defendant so on his demand one portion of the house has
been let out on monthly rental basis at the rate of
Rs.400/- p.m and remaining portion of the house has been
let out to different persons. When the defendant is in a
need of property bearing No.969/3 for his occupation, the
plaintiff was denied to vacant and handover the possession
of the property. Hence, the defendant filed a suit in
O.S.No.213/2003 for ejectment. In the said suit, the
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present plaintiff appeared and filed the written statement.
The learned Civil Court after full-fledged trial, decreed the
suit of the defendant herein and later on the defendant
filed execution petition and taken the possession of the
suit schedule property by due process of law. Hence,
prayed to dismiss the suit.
5. The trial Court, on the basis of the pleadings of
the parties, framed the issues and additional issues.
6. The plaintiff in order to substantiate his case,
examined himself as PW.1 and examined two witness as
PW.2 and PW.3 and got marked 06 documents as Exs.P1
to P6. The defendant examined himself as DW.1 and
examined one witness as DW.2 and got marked 06
documents as Exs.D1 to D6. The Court Commissioner was
appointed and was examined as CW.1 and got marked 02
documents as Exs.C1 and C2. The defendant has also
sought for counter claim. The trial Court after recording
the evidence of the parties, hearing on both the sides and
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on assessment of oral and documentary evidence,
answered issue Nos.1 and 3 in the negative and issue No.2
and additional No.1 in the affirmative and issue No.4 as
per the final order. The suit of the plaintiff and also the
counter claim made by the defendant was dismissed. The
plaintiff aggrieved by the judgment and decree passed in
O.S.No.52/2007 preferred an appeal in R.A.No.31/2012 on
the file III Additional Senior Civil Judge, Davangere.
7. The First Appellate Court, after hearing the
parties, framed the points for consideration.
8. The first appellate Court, after re-assessment of
the oral and documentary evidence, answered point Nos.1
to 4 in the negative and point No.5 as per the final order.
The appeal was dismissed vide judgment dated
05.08.2014 confirming the judgment and decree passed
by the trial Court.
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9. The plaintiff aggrieved by the impugned
judgments, has filed this regular second appeal.
10. Heard the learned counsel for the plaintiff.
11. Learned counsel for the plaintiff submits that
the subject matter of the suit property in
O.S.No.213/2003 is different from one involved in the
present suit. The courts below have committed an error in
dismissing the suit on the ground that the present plaintiff
has appeared and filed the written statement in the earlier
suit. He submits that the said decree passed in
O.S.No.213/2003 is an exparte decree. He also submits
that the defendant by playing a fraud, obtained the decree
in O.S.No.213/2003 against the plaintiff. Hence, on these
grounds, he prays to allow the appeal.
12. Heard and perused the records and considered
the submissions of the learned counsel for the plaintiff.
13. Admittedly, the defendant filed a suit in
O.S.No.213/2003 against the present plaintiff for
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ejectment in respect of door No.969/3 and obtained the
decree against the present plaintiff in the said suit. In the
said suit, the plaintiff appeared through the counsel and
filed the written statement and the trial Court decreed the
suit of the defendant vide judgment dated 31.03.2005.
The plaintiff has produced the judgment and decree
passed in O.S.No.213/2003 i.e., Exs.P3 and P4.
Subsequently, the defendant filed the execution petition
and the executing Court has issued a warrant for delivery
of possession. The defendant has taken the possession of
the suit schedule property by due process of law. It is the
case of the plaintiff that the defendant, by playing a fraud
on the plaintiff, had obtained a decree in
O.S.No.213/2003. The plaintiff ought to have challenged
the judgment and decree passed in O.S.No.213/2003 by
filing an appeal. Instead of filing the appeal, has filed the
present suit challenging the judgment and decree passed
in O.S.No.213/2003. Hence, the suit filed by the plaintiff is
not maintainable. The trial Court was justified in
dismissing the suit challenging the decree passed in
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O.S.No.213/2003, as not maintainable. The first Appellate
Court on re-appreciation of material evidence on record
was justified in dismissing the appeal. I do not find any
substantial question of that arises for consideration in this
appeal.
14. In view of the aforesaid facts and circumstances,
I proceed to pass the following:
ORDER
The appeal is dismissed
The judgments and decree passed by the
Courts below are hereby confirmed.
No order as to the costs.
In view of dismissal of the appeal, pending I.As., if
any, do not survive for consideration.
Sd/-
(ASHOK S.KINAGI)
JUDGE
SSB
