Karnataka High Court
Somappa S/O Bhimappa Kannur vs Chandappa And Ors on 4 January, 2024
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
-1-
NC: 2024:KHC-K:140-DB
RFA No.200063 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
REGULAR FIRST APPEAL NO.200063 OF 2021 (SP)
BETWEEN:
SOMAPPA S/O BHIMAPPA KANNUR
AGE: 66 YEARS, OCC: AGRICULTURE
R/O YARAZARI, TQ: MUDDEBIHAL
DIST: VIJAYAPURA
...APPELLANT
(BY SRI D.P. AMBEKAR, ADVOCATE)
AND:
1. CHANDAPPA
S/O NEELAPPA NARASANAGI
Digitally signed by
SWETA KULKARNI AGE: 53 YEARS, OCC: AGRICULTURE,
Location: HIGH
COURT OF R/O HANDARAGALL, TQ: MUDDEBIHAL
KARNATAKA
DIST: VIJAYAPURA - 586 129.
2. NEELAVVA
D/O NEELAPPA NARASANAGI
@ NEELAVVA W/O IRAPPA GURIKAR
AGE: 61 YEARS,
OCC: HOUSEHOLD WORK AND AGRICULTURE
R/O YARAZARI, TQ: MUDDEBIHAL
DIST: VIJAYAPURA - 586 129.
3. GOURAVVA
W/O NEELAPPA NARASANAGI
AGE: 80 YEARS, OCC: HOUSEHOLD WORK
-2-
NC: 2024:KHC-K:140-DB
RFA No.200063 of 2021
R/O HANDARAGALL, TQ: MUDDEBIHAL
DIST: VIJAYAPURA - 586 129.
...RESPONDENTS
(BY SRI H.M.PATEL, ADVOCATE FOR R1 TO R3)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 READ WITH ORDER 41 RULE 1 OF CPC, PRAYING TO ALLOW
THIS APPEAL AND SET-ASIDE THE IMPUGNED JUDGMENT
AND DECREE DATED 21.11.2020 PASSED BY THE SENIOR
CIVIL JUDGE AND JMFC, MUDDEBIHAL, IN O.S.NO.24/2016, IN
THE INTEREST OF JUSTICE AND EQUITY AND ETC.
THIS RFA COMING ON FOR ADMISSION, THIS DAY
DR.CHILLAKUR SUMALATHA J., DELIVERED THE
FOLLOWING:
JUDGMENT
Challenge in this appeal is the judgment dated
21.11.2020 that is rendered by the Court of the Senior Civil
Judge, Muddebihal [for short, 'the trial Court'] in
O.S.No.24/2016.
2. Heard Sri D.P. Ambekar, the learned counsel for
the appellant and Sri H.M. Patel, the learned counsel for the
respondents and perused the material available on record.
NC: 2024:KHC-K:140-DB
3. The learned counsel for the appellant submits
that though the merits of the case were observed by the trial
Court, the trial Court basing on an order of stay vide order
No.24/2003 dated 19.12.2013 failed to decree the suit.
Learned counsel also states that in case an opportunity is
accorded to the appellant i.e., the plaintiff to the suit, to
produce further evidence with regard to non relevancy of the
said order of stay, the appellant would satisfy the Court.
4. The case of the appellant/plaintiff is that the
defendants to the suit are the joint owners of the suit
schedule property. An agreement for sale was executed in
his favour. A sum of Rs.10,00,000/- was paid as part of
sale consideration. A valid agreement of sale dated
13.10.2015 was executed in the presence of witnesses.
However, the defendants i.e., the respondents herein
postponed to execute the regular sale deed despite the
readiness and willingness on the part of the appellant.
5. The judgment of the trial Court goes to show that
though a compromise petition was also filed, compromise
NC: 2024:KHC-K:140-DB
could not be recorded. There is force in the submission
made by the learned counsel for the appellant that despite
establishing genuineness of Ex.P-1 - agreement of sale, the
suit could not be decreed by the trial Court because of the
existence of the order of stay.
6. Having considered the submissions made and as
sufficient grounds are found to give an opportunity to the
appellant-plaintiff to establish his version by which the suit
can be decreed without reference to the order of stay, we are
of the considered opinion that the judgment of the trial
Court is required to be set aside affording an opportunity to
the appellant-plaintiff to submit further evidence basing on
which the trial Court could dispose of the matter in a
holistic way. Therefore, we proceed to pass the following:
ORDER
(i) The appeal is allowed.
(ii) The judgment and decree dated 21.11.2020
passed by the Court of the Senior Civil Judge,
Muddebihal in O.S.No.24/2016 is set aside.
The suit is thereby ordered to be restored to
file.
NC: 2024:KHC-K:140-DB
(iii) The trial Court is directed to afford an
opportunity to the appellant-plaintiff to
adduce further evidence with regard to the
relevancy of the order of stay.
(iv) Equal opportunity to respondents be given
thereafter.
(v) The trial Court to dispose of the suit afresh.
(vi) The appellant and the respondents are
directed to appear before the trial Court
without further notice, on 19.02.2024.
Sd/-
JUDGE
Sd/-
JUDGE
SWK
Ct;Vk
