Karnataka High Court
Sri K Venkataswamy vs Sri Bellappa on 8 January, 2024
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RFA No. 1386 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 1386 OF 2008 (INJ)
BETWEEN:
SRI K VENKATASWAMY,
S/O LATE SRI KUNNAPPA,
AGED ABOUT 59 YEARS,
R/A NO.3/3, KORAMANGALA ROAD,
AUDUGODI, BANGALORE-560 030.
...APPELLANT
(BY SRI G.B NANDISH GOWDA, ADVOCATE FOR
SRI R.B SADASHIVAPPA, ADVOCATE)
AND:
1. SRI BELLAPPA,
S/O LATE SRI RAMAIAH,
AGED ABOUT 57 YEARS,
SINCE DECEASED BY HIS LRS
1(1) SMT. RAMAKKA,
Digitally signed by
VIJAYALAKSHMI W/O LATE SRI BELLAPPA,
BN AGED ABOUT 45 YEARS.
Location: High
Court of
Karnataka 1(2) SRI B MANJUNATH,
S/O LATE SRI BELLAPPA,
AGED ABOUT 23 YEARS.
1(3) SMT. B JAYALAKSHMI,
D/O LATE SRI BELLAPPA,
AGED ABOUT 27 YEARS.
1(4) KUM. B LEELA,
D/O LATE SRI BELLAPPA,
AGED ABOUT 21 YEARS.
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RFA No. 1386 of 2008
ALL ARE R/AT NO.45,
3RD CROSS, YELCHENAHALLI,
KANAKAPURA ROAD,
BANGALORE-560 078.
2. SRI KEMPANNA,
S/O LATE SRI RAMAIAH,
AGED ABOUT 62 YEARS,
SINCE DECEASED BY HIS LRS.
2(1) SMT. SHARADAMMA,
W/O LATE SRI KEMPANNA,
AGED ABOUT 55 YEARS.
2(2) SRI RAMESH,
S/O LATE SRI KEMPANNA,
AGED ABOUT 35 YEARS.
2(3) SRI SRIDHAR,
S/O LATE SRI KEMPANNA,
AGED ABOUT 32 YEARS.
2(4) SMT. DAKSHAYANI,
D/O LATE SRI KEMPANNA,
AGED ABOUT 30 YEARS.
ALL ARE R/AT NO.137, 6TH CROSS,
DEVEGOWDA LAYOUT, AUDUGODI,
BANGALORE-560 030.
...RESPONDENTS
(BY R1 (1-4) & R2 (1-4) ARE H/S VIDE ORDER DATED
30.10.2013;
R2(5) IS DELETED V/O DATED 18.03.2014)
THIS RFA IS FILED U/S 96 CPC AGAINST THE JUDGMENT
AND DECREE DATED 22.9.2008 PASSED IN OS.NO. 7767/2001
ON THE FILE OF THE XVII ADDL.CITY CIVIL JUDGE,
BANGALORE, DECREEING THE SUIT FOR THE RELIEF OF THE
PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 1386 of 2008
JUDGMENT
Heard the learned counsel for the appellant.
2. Being aggrieved by the judgment and decree
passed in O.S.No.7767/2001 by the learned XXVII
Additional City Civil Judge, Bengaluru (CCH-16) dated
22.09.2008, the defendant No.1 is in appeal before this
Court.
3. The facts in brief are that the plaintiffs filed a
suit for injunction against defendant Nos.1 and 2
contending that they are in possession of the suit schedule
property under a partition as per the decree in
O.S.No.175/1975 and there existed a passage measuring
90 feet East to West and 5 feet North to South, to the
south of the property fallen to their share. They also
contended that the passage exclusively belongs to the
plaintiff Nos.1 and 2 and the defendants do not have any
manner of right, title and interest in the same and now the
defendants are illegally attempting to open a portion on
their wall on the northern side of the property to fix a door
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so as to use the passage of the plaintiffs. Therefore, there
was a cause of action for the plaintiffs and as such, they
approached the Court below below with a prayer for
permanent injunction.
filed their written statement contending that the plaintiffs
are trying to put up lavatory and bathroom in the said
passage so as to block air and light to the property of the
defendants. They contended that they are husband and
wife and they have purchased the property under two sale
deeds dated 17.09.1993 and prior to it, they were the
lessees in the said property. They contended that the said
passage has been kept open and they are using the
passage for air and light. Therefore, when the defendants
objected for illegal construction of the toilet and the
bathroom, they had complained to the Lokayukta and
Bruhat Bengaluru Mahanagara Palike and since it was a
illegal construction, it was demolished.
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5. On the basis of the above pleadings, the trial
Court framed the following:
ISSUES
"1. Whether the plaintiffs prove that they are in
lawful possession of the suit schedule property
on the date of suit?
2. Whether the plaintiffs further prove that the
defendants are interfering with possession of
the suit schedule property?
3. Whether the plaintiffs are entitled for the
injunction prayer for?
4. What order or decree?"
6. Plaintiff No.1 was examined as PW.1 and Exs.P1
to 5 were marked in evidence. The defendant No.1 was
examined as DW.1 and Exs.D1 to 19 were marked in
evidence.
7. After hearing the arguments by both the sides,
the trial Court held that the issue Nos.1 to 3 in the
Affirmative and proceeded to decree the suit.
8. Being aggrieved by the said judgment,
defendant No.1 has approached this Court in appeal.
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9. The appellant contends that the Court below
has not appreciated the evidence on record in a proper
manner and it also failed to notice that the defendant No.2
had died on 03.08.2003. The property purchased by
defendant No.2 was adjoining the said passage and the
property of the plaintiffs and therefore, a decree against
the dead person is not sustainable in law. It is submitted
that even though the fact of death of defendant No.2 was
very much available in the form of Ex.D7, the plaintiffs
had not taken any steps and therefore, the decree passed
by the Court below is against the dead person and is liable
to be set aside. Apart from that, it is contended that the
existence of the passage is noted in the sale deed
executed in favour of the defendant No.2 which is
produced at Ex.D3 and therefore, the trial Court erred in
decreeing the suit.
10. Despite service of notice, respondents/plaintiffs
have not appeared before this Court. The trial Court
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records have been secured and the arguments by learned
counsel for the appellant are heard.
11. It is trite law that a decree against the dead
person is non-est. It is the case of the plaintiffs that
defendant Nos.1 and 2 had purchased the property
adjoining their property and there exist a passage, which
is being obstructed by the defendants. A perusal of the
sale deeds produced by the defendant at Exs.D2 and D3
would show that property owned by the defendant No.2 is
on the northern side of the property purchased by the
defendant No.1. Therefore, in fact, the relief sought by the
plaintiffs is in respect of the property which is adjoining
the house belonging to the defendant No.2. The sale deed
executed in favour of defendant No.2 show that there exist
a passage of 5 feet X 90 feet on the northern side of her
property. Therefore, the plaintiffs should have brought on
record the legal heirs of the defendant No.2 in order to
sustain the claim made by them. It is not the case of the
plaintiffs that the defendant No.1 is the only legal heir of
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defendant No.2. Nowhere such a contention or evidence is
available on record. Under these circumstances, the
impugned judgment against the dead person, particularly
when the defendant No.2 being the immediate adjoining
owner of the suit passage is a non-est in the eye of law.
Moreover, the death of the defendant No.2 was brought on
record in the form of the death certificate of defendant
No.2 as per Ex.D7.
12. Further, a perusal of the Ex.D18, which is the
partition deed entered into between the vendors of
defendant Nos.1 and 2 show that on the northern side of
the property which was allotted to the vendors of the
defendants, there existed a passage of 5 feet width and it
was to be kept open and the sharers are entitled for
usufructs from coconut trees situated in the same. This
aspect is not disputed in any way by the plaintiffs.
13. In that view of the matter, the plaintiffs could
not have claimed exclusive rights over the suit property.
Under these circumstances, this Court finds that
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conclusions reached by the trial Court in respect of the
exclusive use of passage by the plaintiffs is not sustainable
in law. The rights had accrued even to the vendors of the
defendants, in the year 1973 as per Ex.D18. Hence, the
appeal is liable to be allowed on the ground of decree
being a non-est on account of death of defendant No.2
and also for non-appreciation of the evidence on record.
Hence, the following:
ORDER
The appeal is allowed.
The impugned judgment and decree
passed in O.S.No.7767/2001 by the learned
XXVII Additional City Civil Judge, Bengaluru
(CCH-16) dated 22.09.2008 is hereby set
aside.
The suit stands dismissed.
Sd/-
JUDGE
NR/-
