Karnataka High Court
M Ravikumar @ Ravi vs Sri V Venkateshappa on 5 March, 2024
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NC: 2024:KHC:9093
RFA No. 303 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 303 OF 2011 (INJ)
BETWEEN:
1. M RAVIKUMAR @ RAVI,
S/O MUNIYAPPA,
AGED ABOUT 38 YEARS.
2. M KRISHNA,
S/O LATE MUNIYAPPA,
AGED ABOUT 35 YEARS,
BOTH ARE R/AT IBBLUR VILLAGE,
SARJAPURA ROAD, AGARA POST,
AGARA HOBLI, BANGALORE SOUTH TALUK.
...APPELLANTS
(BY SRI A SOMA RAJU, ADVOCATE)
AND:
1. SRI V VENKATESHAPPA,
S/O LATE VENKATASWAMY,
Digitally
signed by C AGED ABOUT 45 YEARS,
HONNUR SAB R/AT NO.86/2, IBBLUR VILLAGE,
Location: SARJAPURA ROAD, BEGUR HOBLI,
HIGH COURT BANGALORE-34.
OF
KARNATAKA 2. SRI M RAJENDRA @ RAJU,
S/O MUNIYAPPA,
AGED ABOUT 42 YEARS,
R/AT NO.81/1, IBBLUR VILLAGE,
SARJAPURA ROAD, AGARA POST,
AGARA HOBLI, BANGALORE SOUTH TALUK.
...RESPONDENTS
(BY SRI K NARAYANA, ADVOCATE FOR R1,
R2 - SERVED AND UNREPRESENTED)
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RFA No. 303 of 2011
THIS RFA IS FILED UNDER SECTION 96, O-41, RULE-1 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
26.10.2010 PASSED IN O.S.2139/2006 ON THE FILE OF THE
XLIV-ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE
DECREEING THE SUIT FOR PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR HEARING THIS DAY THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Heard.
2. This appeal is arising from the judgment and decree in
O.S. No.2139/2006 on the file of XLIV Additional City Civil
& Sessions Judge, Bangalore (CCH-45). The suit is for
the relief of permanent injunction in respect of property
bearing No.6 (old Khata No.151) measuring 60 feet, east
to west and 30 feet, north to south, located in
Bommanahalli CMC, Bangalore.
3. The suit is filed on the premise that the defendant No.1
sold the property under registered sale deed dated
13.11.1989 in favour of P.S. Gunashekar. It is further
stated that on 23.09.1999 plaintiff's father purchased the
said property from P.S. Gunashekar. It is further stated
that the defendants started interfering with the peaceful
possession and enjoyment of the property as such, the
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suit is filed against original vendor /defendant No.1 and
his three sons namely defendants No.2 to 4.
4. The defendant No.1, the person who sold the property
remained ex-parte. He did not contest the suit.
Remaining defendants namely defendants No.3 and 4
filed the written statement and disputed the sale deed.
The defendant No.2 did not contest the suit.
5. The Trial Court framed the issues. The plaintiff led his
evidence. He produced two sale deeds and encumbrance
certificate and tax paid receipts and also the receipts for
having paid the electricity bill pertaining to the suit
schedule property. There was no cross-examination to
the plaintiff. No evidence was led on behalf of
defendants. The Trial Court based on the material placed
on record has concluded that the plaintiff has established
his title over the suit schedule property and granted a
decree for permanent injunction.
6. Aggrieved by the order passed by the Trial Court, the
defendants No.3 and 4 are in appeal. The defendant
No.2 did not file the appeal and accepted the judgment
and decree.
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7. Learned counsel appearing for the defendants No.3 and
4/appellants would submit that the sale deed alleged to
have been executed by the father of defendants No.3 and
4 is not proved. The Trial Court erred in granting a
decree based on the documents placed before the Court.
The Trial Court ought to have insisted for strict proof of
sale deed marked at Exhibits P1 and P3. He would
further submit that merely because there was no cross
examination by the defendants, it does not mean that the
case of the plaintiff is established. Alternatively, he
would also submit that an opportunity is not granted to
the defendants to contest the case and matter be
remitted to the Trial Court and affording an opportunity
to the defendants to contest the matter.
8. This Court has considered the contentions raised at the
Bar.
9. The following points arise for consideration;
(a) Whether the Trial Court is justified in holding that
the plaintiff has proved his possession over the suit
property?
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(b) Whether the appellants have made out a case to
remand the matter for fresh consideration by
providing an opportunity to the appellants to lead
evidence?
10. Admittedly, the suit is based on the registered sale deed
dated 13.11.1989 and 23.09.1999. In terms of the
registered sale deed dated 13.11.1989 marked at Ex.P3,
the defendant No.1 has sold the property to one P.S.
Gunashekar and the said P.S. Gunashekar 10 years later
i.e. in the year 1999 sold the property to the plaintiff's
father and sale deed dated 23.09.1999 is marked at
Ex.P1. It is relevant to note that the original vendor
remained ex-parte. He did not contest the suit and out of
three sons of the original vendor, only two sons contested
by filing the written statement and other son did not file
the written statement. There was no cross-examination
to the evidence led by the plaintiff. The documents
produced by the plaintiff are not challenged. The Trial
Court has referred to the said document which are public
documents which are admissible in evidence and based
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on the title deeds has come to the conclusion that the
plaintiff is in possession of the suit property.
11. In addition to that there are other documents namely the
tax paid receipt, bill having paid the electricity charges to
establish that the plaintiff is in occupation of the
property.
12. Though, it is urged by the learned counsel for the
appellants that the Trial Court could not have granted a
decree only on the basis of the documents produced by
the plaintiff, this Court does not find any error in the
judgment and decree passed by the Trial Court which
relied upon registered sale deeds and the tax paid receipt
to come to the conclusion that the plaintiff is in
possession of the suit property.
13. Though, it is urged that the Trial Court did not grant the
opportunity to the defendants to contest the suit, the
records do not support the said contention. The suit is
filed in the year 2006 and the suit is decreed in the year
2010. Despite having filed written statement, the
defendants No.3 and 4 did not choose to cross-examine
the plaintiff. Why the defendants remained absent when
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the case was listed for cross-examination of plaintiff and
when the case was listed for evidence of the defendants
is not properly explained. Apart from raising a contention
that the sale deed is not executed by the defendants No.1
and 2, defendants No.3 and 4 did not raise any other
specific contention. They did not produce any
documentary evidence before the Trial Court or even
before this Court. Application is not filed for production
of additional documents. Under these circumstances, this
Court is not able to accept the contention that sufficient
opportunity is not given to defendants No.3 and 4 to
contest the suit. The very fact that the defendant No.1
who has sold the property in the year 1989 has not
chosen to contest the suit and the very fact that he has
not taken any steps in his lifetime to question the sale
deed of the year 1989 would lead to the conclusion that
the transaction has taken place as averred by the
plaintiff.
14. Under these circumstances, this Court does not find any
reason to interfere with the judgment and decree passed
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by the Trial Court. Accordingly, the Court pass the
following:-
ORDER
a) The appeal is dismissed.
b) The judgment and decree in O.S. No.2139/2006
passed by the XLIV Additional City Civil & Sessions
Judge, Bangalore (CCH-45) is confirmed.
Sd/-
JUDGE
CHS
