Karnataka High Court
Sri B K Nagappa vs Sri Chinnu Reddy on 6 February, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
-1-
NC: 2024:KHC:5037
RFA No. 563 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
REGULAR FIRST APPEAL NO. 563 OF 2021 (DEC/INJ)
BETWEEN:
SRI B K NAGAPPA
S/O KAVERAPPA
HINDU AGED 78 YEARS
R/AT NO.15/1, VEERATHNAGAR
2ND CROSS, 1ST LEFT BOMMANAHALLI
BEGUR HOBLI, BANGALORE-560068.
...APPELLANT
(BY SRI. MURTHY K.,ADVOCATE)
AND:
1. SRI CHINNU REDDY
S/O SRINIVASA REDDY
AGED ABOUT 50 YEARS
R/AT NO.66, 3RD MAIN NAGAVAR
BANGALORE-560045.
Digitally signed
by HEMALATHA
A 2. MR.SHAKEEL PASHA
Location: High S/O KHALAG HARIFF
Court of
Karnataka AGED ABOUT 61 YEARS
R/AT NO.11, ASSHIYAHA
LEONAND LANE, RICHMOND TOWN
BANGALORE-560025.
3. MRS.NASREEM
AGED MAJOR
R/AT NO.11, ASSHIYAHA
LEONAND LANE, RICHMOND TOWN
BANGALORE-560025.
-2-
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RFA No. 563 of 2021
4. SRI.P.CHANDRAPPA
S/O LATE PUTTEGOWDA
AGED ABIUT 60 YEARS
R/AT NO.34, FFH BDA FLAT
NEELASANDRA, BANGALORE-560 047.
...RESPONDENTS
(NOTICE TO R1 TO R4 ARE SERVED AND
UNREPRESENTED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 16.03.2020
PASSED IN OS.NO.2889/2012 ON THE FILE OF THE XII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
DISMISSING THE SUIT FOR DECLARATION AND PERMANENT
INJUNCTION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiff challenging the
judgment and decree dated 16.03.2020 passed by the XII
Additional City Civil Judge, Bengaluru in O.S.No.2889
/2012, whereby the suit filed by the plaintiff has been
dismissed.
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial court.
3. The brief facts of the case is that the suit schedule
properties are the ancestral properties of Kaverappa, there
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was a partition on 24.06.1950. In that partition, the suit
schedule properties have fallen to the share of Nagappa,
i.e., the plaintiff. From the date of partition, all the
revenue records stands in the name of the plaintiff. In the
month of March 2012, defendants were trying to dis-
possess the plaintiff, then only plaintiff came to know that
there was a sale deed in favour of the defendants.
Thereafter, immediately, plaintiff filed a suit for
declaration, possession and injunction.
4. On service of summons, defendants appeared
through counsel and filed the written statement
contending that the plaintiff's mother has executed a GPA
in favour of Chandrappa - defendant No.4, Chandrappa,
in-turn sold the said property in favour of the other
defendants and they are in possession of the suit schedule
property on the basis of the registered sale deed, the
plaintiff has no right or title. Hence, sought for dismissal
of the suit.
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5. On the basis of the pleadings of the parties, the
trial court has framed the following issues and additional
issue:
(1) Does the plaintiff prove that, he is the absolute
owner of the suit schedule property as
contended in the plaint?
(2) Does the plaintiff prove that, he was in
possession of the suit schedule property as on
the date of filing of the suit?
(3) Does the plaintiff prove that, defendants are
interfering in his possession over the same?
(4) Does the plaintiff prove that, defendants have
no right to alienate the suit schedule property
to anybody in any manner, so he is entitled for
permanent injunction in that regard?
(5) Does the defendant Nos. 2 and 3 prove that,
they have purchased an area measuring east
west 50 ft. + 55 ft./2 north south 85 ft. in
property bearing No.2A khatha No.47/3 and
another property measuring east west 48 ft. +
60 ft./2 and north south 137+140 ft./2 situated
in property bearing No.1A khatha No.7 both
situated at Bommanahalli village, Begur Hobli
Bangalore North Taluk, for valid consideration
through a registered gift deed sale deeds as
contended in para 12 of their written
statement?
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(6) Does the plaintiff prove that, suit is properly
valued and court fee paid on the same is
sufficient?
(7) What order or decree?
Additional issue framed on 17.12.2013:
(1) Does the plaintiff prove that, no negotiation had
taken place with the defendant No.2 and 3 with
respect to the suit schedule property as
contended in para No.10(A) in the amended
plaint?
Additional issue framed on 23.01.2018:
(1) Whether the suit is barred by limitation?
6. To prove the case, plaintiff examined himself as
PW1 and marked documents as Exs. P1 to P42. On behalf
of the defendants, neither any evidence was adduced nor
marked any documents.
7. The trial court, on appreciation of the oral and
documentary evidence, answered issue Nos. 1 to 4 and 6
in the negative and additional issue No.1 framed on
23.01.2018 in the affirmative and dismissed the suit.
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Being aggrieved by the judgment and decree, the plaintiff
is before this Court.
8. The learned counsel appearing for the appellant
/plaintiff has raised the following contentions:
(i) Firstly, at no point of time, plaintiff's mother has
executed a GPA in favour of defendant No.4. The
defendants have created the documents and executed the
registered sale deed.
(ii) Secondly, the suit schedule property has come to
the share of the plaintiff through a Will dated 24.06.1950
and all revenue records from the date of partition stands
in the name of the plaintiff. Since the plaintiff has not
produced the partition deed, the trial court dismissed the
suit. Now, the plaintiff filed an application under Order 41
Rule 27 of CPC producing the additional documents. If
this Court grants one more opportunity, the plaintiff will
produce the same before the trial court to establish his
case.
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9. The respondents/defendants are served and
unrepresented.
10. Heard the learned counsel appearing for the
appellant and perused the impugned judgment and the
records.
11. The point that arises for consideration in this
appeal is, 'Whether the judgment and decree passed by
the trial court is perverse, arbitrary and calls for
interference of this Court?
12. The specific case of the plaintiff is that the suit
schedule property is a joint family property, there was a
partition on 24.06.1950. In the partition, the suit
schedule property fallen to the share of the plaintiff. From
the date of partition, all the revenue records stands in his
name. At no point of time, plaintiff's mother has executed
GPA in favour of Chandrappa.
13. The further case of the plaintiff is that the
plaintiff was unable to produce the partition deed dated
24.06.1950 during the pendency of the suit. Now, he has
secured the same and produced the same by filing an
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application. The trial court dismissed the suit mainly on
the ground that the plaintiff has not produced any
document to show that the suit schedule property belongs
to his grandfather - Gundappa. Under these
circumstances, to give one more opportunity to the
appellant, I am of the opinion that the matter requires to
remitted back to the trial court with liberty to the plaintiff
to produce the additional documents before the trial court.
14. In view of the above, I pass the following order:
(1) The appeal is allowed.
(2) The judgment and decree dated 16.03.2020
passed by the XII Additional City Civil Judge, Bengaluru in
O.S.No.2889/2012 is set aside.
(3) The matter is remitted back to the trial court
with liberty to the parties to produce additional documents
and adduce additional evidence.
(4) After hearing the parties, the trial court is
directed to dispose of the suit in accordance with law, as
expeditiously as possible, not later than one year from the
date of receipt of the certified copy of this order.
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(5) All pending applications stand disposed of.
Sd/-
JUDGE
CM
