Karnataka High Court
Sri G M Ramesh S/O Munilingaiah vs B Venkataramana S/O Late Bylappa on 15 February, 2024
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RFA No. 1029 of 2006
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 1029 OF 2006 (INJ)
BETWEEN:
1. SRI G M RAMESH,
S/O MUNILINGAIAH,
AGED ABOUT 35 YEARS,
R/O GUDDADAHALLI, IST MAIN,
NAGENAHALLI MAIN ROAD,
R.T. NAGAR POST,
BANGALORE-560 032.
2. SRI G R SRINIVAS,
S/O MUNILINGAIAH,
AGED ABOUT 32 YEARS,
R/O GUDDADAHALLI, IST MAIN,
NAGENAHALLI MAIN ROAD,
R.T. NAGAR POST,
BANGALORE-560 032.
...APPELLANTS
(BY SRI S SHANKARACHAR & SRI N RAVIKUMAR, ADVOCATES)
Digitally signed
by AND:
ANNAPURNA G
Location: High B VENKATARAMANA,
Court of S/O LATE BYLAPPA,
Karnataka AGED ABOUT 53 YEARS.
SINCE DEAD BY LRS.
R(1)(a) SMT. SUSHEELAMMA,
W/O LATE B VENKATARAMANA,
AGED ABOUT 65 YEARS,
R/AT NO.79, VISHWANATHA,
NAGENAHALLI MAIN ROAD,
HEBBAL GUDDADAHALLI,
BANGALORE-560 032.
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RFA No. 1029 of 2006
R(1)(b) SRI V LAKSHMINARAYANA,
S/O LATE B VENKATARAMANA,
AGED ABOUT 45 YEARS,
R/AT NO. 79, VISHWANATHA,
NAGENAHALLI MAIN ROAD,
HEBBAL GUDDADAHALLI,
BANGALORE- 560 032.
R(1)(c) SMT. B SUNEETHA,
W/O J.RANGASWAMY,
AGED ABOUT 47 YEARS,
R/AT NO. 79, VISHWANATHA,
NAGENAHALLI MAIN ROAD,
HEBBAL GUDDADAHALLI,
BANGALORE-560 032.
...RESPONDENTS
(BY SRI P.M NARAYANASWAMY & SRI B.H MAHESH,
ADVOCATES FOR R1 (a & c);
R1(b) IS PLACED EXPARTE V/O DATED 08.12.2023)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 5.4.2006 PASSED IN
O.S.NO.4421/2004 ON THE FILE OF THE V ADDL. CITY CIVIL
JUDGE, BANGALORE (CCH-13), DECREEING THE SUIT FOR
INJUNCTION.
THIS APPEAL COMING ON FOR ARGUMENTS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by the judgment and decree passed
in OS No.4421/2004 by the learned V Additional City Civil
and Sessions Judge, Bangalore, dated 05-04-2006, the
defendants are before this Court in appeal.
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2. The brief facts are that, the immoveable
property i.e. site bearing Khata No.78(78/4) formed in
survey No.20/10, situated at Guddadahalli Village, Kasaba
Hobli, Bangalore South Taluk, belonging to one Bodi
Lingappa who was the great grandfather of the
appellants/defendants and grandfather of the plaintiff. The
said Bodi Lingappa had two sons namely, Buddappa and
Bylappa, who succeeded to the suit schedule property.
The said Buddappa had two sons by name B. Lingaiah @
Bodappa and Lingappa. Bylappa had also four sons by
name Munivenkatappa, B. Munlingaiah, Chikkamunilinga
and the plaintiff. During the life time of Bodappa and
Bylappa together with their children have entered into an
arrangement before the panchayat on 19-03-1978.
3. The plaintiff pleaded that there was a partition
among the members of the family and on the basis of the
Release Deed dated 30-10-2001, the plaintiff acquired
interest in the entire suit schedule property and got the
revenue records transferred to his name. He obtained loan
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from Vijaya Bank, Shantinagar, by depositing the original
title deed. When he started construction on 21-6-2004,
the defendants with their supporters interfered with the
plaintiff's possession and stopped construction work and
thereby obstructed his peaceful possession. The plaintiff
had to file a complaint to the police, but the defendants
being influential, the police could not take any action
against them. Therefore, the plaintiff has filed a suit for
injunction against the defendants.
4. Per contra, the defendants have contended that
there was a compromise before the Panchayat on
19-03-1978 and it was agreed that land measuring 30*30
ft. is to be left for welfare of AK Community and later on
public well is constructed. The entire AK community people
were enjoying the said portion of the land containing the
Well. It was alleged that the plaintiff has concocted and
fabricated the documents in the name and style of a
Release Deed and even though the police had advised the
plaintiff not to destroy the Well, the plaintiff did not heed
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to their request and therefore, the suit is liable to be
dismissed.
5. On the basis of the above pleadings, the
following issues were framed by the trial Court:
(1) Whether the plaintiff proves his possession over
the suit schedule property as on the date of suit?
(2) Whether the plaintiff further proves the alleged
interference by the defendants with his possession
over the suit property?
(3) Whether the plaintiff is entitled to the relief of
permanent injunction a sought for?
(4) What decree or order?
6. Plaintiff entered the witness box and deposed
as PW1 and Exhibits P1 to P10 were marked on his behalf.
Since defendants did not adduce any evidence, the trial
Court heard the arguments and answered issue Nos. 1 to
3 in the affirmative and decreed the suit.
7. Being aggrieved by the said judgment,
defendants are before this Court in appeal.
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8. On issuance of notice, respondent/plaintiff
appeared through his counsel. On admitting the Appeal,
the trial Court records have been secured and the
arguments by learned counsel for appellants were heard.
However, learned counsel for respondent did not appear to
advance his arguments.
9. During the pendency of this appeal,
plaintiff/respondent herein died and his legal
representatives were brought on record.
10. The learned counsel appearing for the
appellants would contend that the trial Court in the
proceedings had held that the plaintiff is not in possession
of the suit schedule property and therefore, the interim
application for temporary injunction was dismissed.
Thereafter, the plaintiff came forward and agreed to leave
an extent of 23 ft. x 20 ft. in the said survey No.20/10 and
he also executed an agreement known as 'Oppandada
Kararu Patra' dated 09-12-2004 and agreed to withdraw
the suit. In view of the said agreement, the plaintiff had
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to withdraw the said suit, but he did not do so and went
ahead with adducing the evidence. It is submitted that
the villagers of Guddadahalli, also filed a review petition
under Section 114(A) of the Karnataka Municipal
Corporation Act, before the Deputy Commissioner (East),
Bangalore Mahanagara Palike and an order came to be
passed noting the agreement and accordingly, the katha
was also modified. Thus, the portion of the suit schedule
property measuring 23 ft. x 20 ft., being used by the
people of AK community and therefore, the plaintiff
having suppressed the same proceeded with the suit.
When he had agreed by way of compromise petition to
forego an extent of 23 ft. x 20 ft. it was not in the mouth
of the plaintiff to go ahead with the case by adducing his
evidence claiming entire property. It is contended by the
defendants that with bonafide belief that the plaintiff
would withdraw the suit, they have not attended the Court
and therefore, they could not adduce any evidence in the
matter. On these grounds, the learned counsel for the
appellants submits that the judgment and decree passéd
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by the trial Court be set aside and the matter be
remanded to the trial Court or the decree passed by the
trial Court be set aside and suit may be dismissed.
11. The only point that arises for consideration is,
whether the appellants had bonafide believed that the matter
was compromised and therefore, they could not adduce any
evidence in the matter?
12. During the pendency of this appeal, the
appellants have also filed an application under Order 41
Rule 27 CPC i.e. IA No.1/2014 seeking production of
additional evidence i.e., copy of endorsement issued by
the Executive Officer, Taluk Panchayat, Yelahanka, copy
of the interim order passed by the trial Court rejecting the
injunction, the agreement entered into between the
plaintiff and others and also the order passed by the
Deputy Commissioner (East), Bangalore Mahanagara
Palike dated 19-03-2005 whereby the agreement came to
be acted upon in changing the katha.
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13. The affidavit filed in support of the said
application narrates that the appellants herein had
bonafide believed that in view of the agreement reached
between the parties, the plaintiff would file a memo to
withdraw the suit, but instead of that, the plaintiff has
gone ahead with the trial and therefore, the defendants
were mis led and they could not avail the opportunity to
adduce the evidence in the matter.
14. A careful perusal of the trial Court records will
also show that there was no representation on behalf of
the defendants/appellants herein and when they squarely
rely on the agreement and the order of review petition by
the Deputy Commissioner (East) Bangalore Mahanagara
Palike, it appears that such contention is bonafide. Since
the said documents go to the root of the matter, they are
essential documents for the purpose of rendering an
effective judgment. The claim of the plaintiff that he owns
30 ft. x 30 ft. along with the Well is definitely truncated by
the said agreement and the order of the Deputy
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Commissioner (East) Bangalore Mahanagara Palike. In that
view of the matter, the documents go to the root of the
case and as such, there is sufficient force in the
submission that the application must be allowed.
Accordingly, the application filed by the appellants under
order 41 Rule 27 CPC is allowed.
15. A perusal of the trial Court records would also
show that the defendants had not appeared before the
trial Court and adduced the evidence. Now the documents
which have been produced by the appellants/defendants
definitely go to the root of the case. When the police
alleged that the plaintiff had not disclosed the agreement
reached between him and others, it also throw light on
the conduct of the plaintiff in the matter. The defendants
have to be given an opportunity to rebut the say of the
plaintiff and to put forth their contention before the trial
Court. Under these circumstances, the impugned
judgment deserves to be set aside with a direction to
afford an opportunity to the defendants to adduce
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evidence. Therefore, the point raised above is answered in
the affirmative. Hence, the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree passed by
the trial Court in OS No.4421/2004 on 05-004-2006 is
hereby set aside.
(iii) Matter is remanded to the trial Court with a
direction to afford an opportunity to the defendants/
appellants herein to adduce evidence and also to take note
the documents produced by the appellants before this
Court.
(iv) The entire exercise shall be completed
preferably within a period of six months from the date of
receipt of trial Court records.
(v) The entire records along with the documents
produced by the appellants along with application filed
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under order 41 Rule 27 CPC be transmitted to the trial
Court immediately.
(vi) Both the parties are directed to appear before
the trial Court on 01-04-2024.
Sd/-
JUDGE
tsn*
