Karnataka High Court
K. B. Puttasiddaiah vs Smt. Arogkya Mary Dead By Her Lrs on 7 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 1252 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1252 OF 2023 (INJ)
BETWEEN:
K. B. PUTTASIDDAIAH
S/O. LATE BORAIAH,
AGED ABOUT 69 YEARS,
R/AT HOUSE NO. 28,
5TH CROSS, DWARAKANAGAR,
100 FEET ROAD,
BSK III STAGE,
BENGALURU-560 085.
...APPELLANT
(BY SRI. VIJAY KUMAR T.,ADVOCATE)
AND:
SMT. AROGKYA MARY DEAD BY HER LRS
1. A PHILOMINA RAJ,
S/O. LATE AROGKYA MARY,
AGED ABOUT 64 YEARS,
R/AT NO. 33, TIMBER LAYOUT,
Digitally signed PIPE LINE ROAD,
by SUMA B N
BENGALURU-560 026.
Location: High
Court of
Karnataka 2. ANTHAS MARY
D/O. AROGKYA MARY,
AGED ABOUT 70 YEARS,
R/AT NO. 22, 2ND CROSS,
AZAD NAGAR,
BENGALURU-560 026.
A. THOMAS DEAD BY HIS LRS.,
3. SMT. SAGAI MARY,
W/O. LATE A. THOMAS,
AGED ABOUT 55 YEARS,
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RSA No. 1252 of 2023
R/AT NO. 10/2-1,
B CROSS, 1ST MAIN,
NEW GUDDADAHALLI,
MYSURU ROAD,
BENGALURU-560 026.
4. VINCENT JOY
S/O. LATE A. THOMAS,
AGED ABOUT 36 YEARS,
R/AT NO. 10/2-1,
B CROSS, 1ST MAIN,
NEW GUDDADAHALLI,
MYSURU ROAD,
BENGALURU-560 026.
5. MOSES
S/O. LATE THOMAS,
AGED ABOUT 34 YEARS,
R/AT NO. 10/2-1,
B CROSS, 1ST MAIN,
NEW GUDDADAHALLI,
MYSURU ROAD,
BENGALURU-560 026.
6. SMT. VIOLET MARY
D/O. A. THOMAS,
AGED ABOUT 32 YEARS,
R/AT LURDNAGAR,
SHIVAPURA,
HESARAGHATTA ROAD,
BENGALURU-562 163.
YESUDAS DEAD BY LRS.,
7. SMT. MARY STELLA,
W/O. LATE YESUDAS,
AGED ABOUT 57 YEARS,
R/AT NO. 65,
SONNENAHALLI,
VISHWESHWARAIAH LAYOUT,
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RSA No. 1252 of 2023
3RD BLOCK,
SOLLAPURADAMMA TEMPLE STREET,
BENGALURU-560 056.
8. STALWIN
S/O. LATE YESUDAS,
AGED ABOUT 32 YEARS,
R/AT NO. 65,
SONNENAHALLI,
VISHWESHWARAIAH LAYOUT,
3RD BLOCK,
SOLLAPURADAMMA TEMPLE STREET,
BENGALURU-560 056.
9. ALWIN
S/O. LATE YESUDAS,
AGED ABOUT 31 YEARS,
R/AT NO. 65,
SONNENAHALLI,
VISHWESHWARAIAH LAYOUT,
3RD BLOCK,
SOLLAPURADAMMA TEMPLE STREET,
BENGALURU-560 056.
...RESPONDENTS
(BY SRI.RAGHAVENDRA.S, ADVOCATE FOR R2-R6
SRI.M.SRINIVAS GOWDA, ADVOCATE FOR R7 AND R8)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGEMENT AND DECREE DATED 20.04.2023 PASSED IN RA
NO.72/2020 ON THE FILE OF IX ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND
DECREE DATED 12.08.2015 PASSED IN O.S. NO.32/1999 ON THE
FILE OF I ADDITIONAL CIVIL JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 1252 of 2023
JUDGMENT
This appeal is filed by the son of original defendant-late
Boraiah aggrieved by the judgment and decree dated
12.08.2015 passed in O.S.No.32/1999 on the file of I Additional
Civil Judge, Bengaluru Rural District, Bengaluru (hereinafter
'the Trial Court') decreeing the suit of the plaintiffs for the relief
of permanent injunction which is confirmed by the judgment
and order dated 20.04.2023 passed in R.A.No.72/2020 on the
file of IX Additional District and Sessions Judge, Bengaluru
Rural District, Bengaluru. (hereinafter 'the First Appellate
Court').
2. The above suit is filed by the plaintiffs/respondent
Nos.1 and 2 claiming to be children of one Arokia Swamy
against one Boraiah and Boramma contending interalia:
a) That the land in old Sy.No.113/26 new Sy.No.162
measuring 6 acres together with Karab land situated at Uttari
Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore was
granted in favour of said Arokia Swamy on 14.07.1952 in
consideration of his service as Ajamedhar in Mysore Regiment
Force by the then Government of Mysore. That upon the
request made by the Arokia Swamy to make revenue records in
his name, survey and phodi was conducted in which the said
land was assigned with new Sy.No.162 and extent determined
as 6 acres. Thus the said Arokia Swamy became the absolute
owner in possession and enjoyment of the said extent of 6
acres of land with the new survey number assigned as above.
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b). The said Arokia Swamy passed away intestate on
14.09.1976 leaving behind the plaintiffs as his legal
representatives who have been in possession and enjoyment
of the suit property carrying out the agricultural activities
thereon.
c). The defendants without having any right, title and
interest based on certain created documents had attempted to
interfere with the peaceful possession and enjoyment of the
suit property by the plaintiffs. Though a compliant in this
regard was lodged before the Jurisdictional Police Station, since
no action was taken, plaintiff was constrained to file the suit for
injunction.
3. Upon service on summons defendant No.1 appeared
and filed his written statement. Defendant No.2 appeared but
did not file written statement. Defendant No.1 in the written
statement while denying the averments made in the plaint
contended that the defendant No.2 is not his wife and the real
name of his wife was Smt.Honamma. The claim of the plaintiff
being in possession of 6 acres of land is denied. It is contended
that Sy.No.113 consists of about 100 acres, the claim of the
plaintiff regarding the grant and revenue records having been
made in name of Arokia Swamy is also denied. The very
existence of person called Arokia Swamy is also denied. It is
further contended that the defendant No.1 had purchased 4
acres of land in Sy.No.113/23 in terms of deed of sale dated
20.05.1969 and that having purchased the same defendant had
enclosed the same by installing fencings and has been in
possession and enjoyment of the of the same. It is also
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contended that the defendant No.1 himself has filed a suit in
O.S.No.256/1999 against the plaintiffs and the same was
pending consideration. Hence, sought for dismissal of the suit.
4. Based on the pleading, trial Court framed following
issues:
"1. Whether the plaintiffs prove that they are in
actual possession and enjoyment of the suit
schedule property as on the date of filing of the
suit?
2. Whether the plaintiffs prove the alleged
defendants interfered and obstructed while the
peaceful enjoyment of the suit schedule property by
the plaintiffs?
3. What order or decree?"
5. Plaintiff No.1 examined himself as PW-1 and exhibited
11 documents marked as Ex.P-1 to P-11. Records reveal that
by the time evidence of defendants could be recorded, the
defendant No.1 passed away and suit against the defendant
No.1 was treated as abated. An application has been filed by
the appellant herein seeking to implead him as defendant No.3
which application came to be rejected on 19.01.2009. The trial
Court on appreciation of pleadings and evidence answered issue
Nos.1 to 2 in the affirmative and consequently decreed the suit
granting relief of permanent injunction against to the defendant
No.2 restraining them from interfering with possession and
enjoyment of the suit schedule property by the plaintiff by the
judgment and decree dated 12.08.2015.
6. Being aggrieved by the same, appellant herein
claiming to be son of original defendant No.1 and
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Smt.Honamma wife of said defendant No.1 filed an regular
appeal in R.A.No.72/2020 before the First Appellate Court.
7. An application filed under Order XLI Rule 27 R/w
Section 151 of the CPC was also filed seeking production
additional documents. The First Appellate Court framed
following points for its consideration:
"1. Whether the plaintiffs proves that they are
in actual possession and enjoyment of the suit
schedule property as on the date of filing of the
suit?
2. Whether the plaintiffs prove the alleged
defendants interfered and obstructed while the
peaceful enjoyment of the suit schedule
property by the plaintiffs?
3. What order or decree?"
8. On re-appreciation of the evidences, the First Appellate
Court answered point No.1 in the negative to point No.2 in the
affirmative and consequently dismissed the appeal confirming
the judgment and decree passed by the Trial Court. Being
aggrieved by the same appellant herein claiming to be son of
original defendant No.1 is before this Court.
9. Sri.B. Roopesha, learned counsel for the appellant
reiterating the grounds urged in the memorandum of the
appeal submitted:
i. That the Trial Court and the First Appellate Court
without adverting to the identity of the suit schedule property
have proceeded to grant the relief of permanent injunction. In
that he submits that though the plaintiffs in the plaint has
pleaded that she was the absolute owner in possession and
enjoyment of the farm house along with vacant land bearing
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old Sy.No.113, new Sy.No.162 had never pleaded that she was
the owner of land bearing Sy.No.113/26. That Sy.No.113/26
was never mentioned in the plaint.
ii. He further submitted that taking advantage of decree
of permanent injunction, the plaintiffs are claiming the property
which belonged to the appellant and which is in his possession.
He further submits that Arokia Swamy the husband and the
father of the plaintiffs respectively had indeed sold the property
which was granted in his favour in terms of deed of sale dated
13.06.1991 in favour of one Sri.Sathya Kumar Patil, who in
turn sold the said property to Sri.Sridharan as such he insists
that the suit schedule property as described and being claimed
by the plaintiff is not in existence. He submits that the Trial
Court and the First Appellate Court without adverting this
aspect of the matter have erred in granting a relief of
permanent injunction in respect of non existing property. He
also submits that attempt made by the appellant to produce
additional evidence by filing an application under Order XLI
Rule 27 R/w Section 151 of the CPC has also been negated,
causing injustice and prejudice to the appellant. Giving raise to
substantial question of law required to be considered at the
hands of this Court.
10. In response, Sri.Raghavendra.S, learned counsel for
the respondents/plaintiff raises the questions with regard to
very maintainability of the appeal. He submits that the suit is
one for bare injunction against the original defendant-Boraiah
and one Boramma. He submits that said Boramma had
appeared but did not contest the matter. However, original
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defendant-Boraiah had passed away during the pendency of the
suit and suit was treated to having been abated against the
defendant No.1. He submits that the relief being in personam,
there was no reason for the appellant to have taken upon
himself the matter and filed the appeal as the cause of action
did not survive against the appellant. He relies upon the
judgment of the Co-ordinate Bench of this Court passed in the
case of Smt.Venkubai (deceased) by L.Rs Vs. The
Assistant Commissioner, Sedam, Gulbarga District and
another reported in (1998) 5 Karnataka LJ 171 and also the
Order of the Co-ordinate Bench of this Court by its Order dated
12.10.2018 passed in W.P.No.15445/2018 between
Smt.Usha Gopal Gowda Vs Sri.M.T.Tharanath.
11. As regards, merits of the matter the learned counsel
submits that the grant made in favour of Arokia Swamy on
14.07.1952 was in respect of 7 acres 20 guntas was in
Sy.No.113 which is subsequent to the survey and phodi was
reassigned with Sy.No.162 and measurement was restricted to
6 acres. He submits that the plaintiffs have produced revenue
records, survey sketches and mutation register extract to
evidence assignment of new Survey Number as Sy.No.162. He
also submits that the identity of the property being claimed by
the plaintiff has been sufficiently established. It is his further
submission that on the other hand property being claimed by
the appellant/original defendant to have been purchased under
the deed of sale dated 20.05.1969 is different and distinct. As
such he submitted that even on that ground the appeal is not
maintainable. He submits that no substantial question of law
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would arise for consideration, hence seeks for dismissal of the
appeal.
12. Heard. Perused the records.
13. The property in respect of which the suit filed by
plaintiffs is Sy.No.113/26 new Sy.No.162, situated at Uttari
Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore
measuring 6 acres with kharab land bounded on: East by;
Government Road, West by; forest land, North by; Forest land
and South by; Private Land.
14. In the written statement defendant No.1 has claimed
that he acquired the property under deed of sale dated
20.05.1969. The description of the property as given in the
written statement reads as Sy.No.113/23 new Sy.No.162,
measuring 4 acres, situated at Uttari Village, Uttarahalli Hobli,
Bangalore South Taluk, Bangalore bounded on: East by; private
property, West by; forest land, North by; 30ft Road and South
by; private property and forest land. However, the sale deed
dated 20.05.1969, does not contain any such description as
claimed by the defendant.
15. On a query by this Court, learned counsel for the
appellant sought to refer the grant Order which had been made
in favour of the vendor of the defendant No.1 namely-Kullaiah
on 28.09.1955. Perusal of which also do not indicate any
identity of the property except stating that the said land is as
per the sketch and no document/sketch even in this regard has
been produced.
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16. Thus the Trial Court and the First Appellate Court
having taken note of these aspect of the matter have held that
the property being claimed by the plaintiffs are completely
different and distinct, from the one claimed by the defendant.
17. Be that as it may. The suit being one for bare
injunction filed against Boraiah who passed away during the
pendency of the suit. Cause of action for suit could not survive
against the appellant herein who claims to be the son of the
original defendant-Boraiah. There is no averments/allegation in
the plaint against the legal representatives of the aggrieved
defendant. Cause of action in the matter being personal ended
with death of defendant No.1, more particularly when the
injunction is granted in respect of the suit property which is
different and distinct from one being claimed by the appellant.
In that view of the matter, no substantial question of law
would arise for consideration. However, it is made clear that
appellant who is claiming the right over the suit property as
described by him, is at liberty to avail such remedy, if available
under law.
Sd/-
JUDGE
RL
