Karnataka High Court
Smt. Vinoda M M vs Smt. Gayathri on 4 November, 2024
Author: K.Natarajan
Bench: K.Natarajan
-1-
NC: 2024:KHC:44324
RFA No. 416 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 416 OF 2023 (DEC/INJ-)
BETWEEN:
SMT. VINODA M M
S/O MOUNESH M E,
AGED ABOUT 39 YEARS,
R/AT NO.272, 7TH CROSS,
6TH BLOCK, 2ND STAGE,
NAGARBHAVI,
BENGALURU - 560 072.
...APPELLANT
(BY SRI. BAPAT SAMPATH VINAYAKA RAO, ADVOCATE)
AND:
SMT. GAYATHRI
W/O B. V. MOHAN,
AGED ABOUT 52 YEARS,
R/AT NO.256, 3RD MAIN ROAD,
Digitally signed by BHYRAVESHWARANAGAR,
VEDAVATHI A K SUNKADAKATTE,
Location: High
Court of Karnataka MAGADI MAIN ROAD,
BENGALURU - 91.
...RESPONDENT
(BY SRI. JNANESH KUMAR K., ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED
25.11.2022 PASSED IN OS No.4444/2017 ON THE FILE OF THE
X ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGALORE, DECREEING THE SUIT FOR DECLARATION AND
INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-2-
NC: 2024:KHC:44324
RFA No. 416 of 2023
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
ORAL JUDGMENT
Though this matter has come up for admission, with the
consent of learned counsels for the parties, the same is taken
up for final hearing and disposed of by this judgment.
2. This appeal is filed by the appellant-defendant
under Section 96 read with Order XLI Rule 1 of the Code of
Civil Procedure, 1908 (for short 'CPC') for setting aside the
judgment and decree passed by the X Additional City Civil and
Sessions Judge, Bengaluru, in O.S. No.4444/2017 dated
25.11.2022, whereby the trial Court has decreed the suit in
favour of the respondent-plaintiff.
3. Heard the arguments of learned counsel appearing
for the appellant and the learned counsel appearing for the
respondent.
4. The rank of the parties before the Trial Court is
retained for the sake of convenience.
5. The case of the plaintiff before the trial Court is that
she filed the aforesaid suit for declaration and injunction
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against the defendant to declare that she is the owner of the
suit schedule property bearing old Sl. No.844/775, property
No.714, 714/1, 714/2 and 714/3 and site No.345 and present
BBMP new No.115 measuring East to West 30 feet and North-
South 40 feet situated at Srigandada Kavalu Vasathi Rahitara
Sanga, Yeshwanthapura Hobli, Bangalore North Taluk and the
same was purchased by the plaintiff under the sale dated
18.04.1996 and she is in possession of the said property. It is
the further case of the plaintiff that the defendant interfered
with the said property. Therefore, the plaintiff filed the suit for
injunction against the defendant and later, she filed a suit for
declaration that she is the owner of the suit schedule property
and accordingly, prayed for decreeing the suit.
6. In pursuance of the service of notice, the defendant
entered appearance through her Counsel and filed written
statement denying the entire claim of the plaintiff. It is the
contention of the defendant that she purchased the property
from her vendor on 23.01.2013 and the vendor of the
defendant purchased the property from the said Society in the
year 1993. It is further alleged that the plaintiff filed a suit in
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O.S. No.791/2017 and the same was dismissed for non
persecution and without obtaining any liberty or prior
permission from the court the present suit was filed, which is
hit by Order II Rule 2 of CPC. Therefore, the suit requires to be
dismissed. It is also contended by the defendant that she has
taken a loan of Rs.13,94,000/- for construction of the building
and the same was stopped. Hence, prayed for dismissing the
suit.
7. Based upon the pleadings, the trial Court framed
issues:
a.) Whether the plaintiff proves that she
is the absolute owner of the suit schedule
property?
b.) Whether suit is hit by principles of
res-judicata?
c.) Whether Court fee paid is insufficient?
d.) Whether plaintiff is entitled for
possession of the suit schedule property?
e.) What order or decree?
8. In order to prove the case, the plaintiff herself was
examined as P.W.1 and has produced 13 documents as per
Exs.P.1 to P.13. However, subsequently, she did not turn up
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and hence, her husband as the SPA holder of the plaintiff has
been examined as P.W.2. The defendant has not cross
examined P.W.2 nor she has led her evidence and she has also
not produced any documents before the court. After hearing
the learned counsel for the parties, the trial Court given finding
by answering the issues in favour of the plaintiff and passed the
judgment by decreeing the suit of the plaintiff. Being
aggrieved by the same, the defendant has filed this appeal.
9. Learned counsel for the appellant-defendant has
contended that the appellant has good grounds on merit.
There are various grounds urged by the appellant-defendant in
the written statement Unfortunately, the appellant could not
cross examine the respondent-plaintiff. It is further contended
that, even though the appellant obtained loan for construction
of the building, the same was stopped. In view of the absence
of the appellant-defendant, the trial Court, decreed the suit,
which has resulted in miscarriage of justice. Therefore, the
learned counsel prays that the matter be remitted back for
fresh consideration by setting aside the judgment and decree
passed by the trial Court.
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10. Learned counsel for the respondent-plaintiff has
contended that the trial Court has provided sufficient
opportunity to the appellant-defendant to contest the matter,
but not cross examined P.W.1. Therefore, the judgment was
passed and the suit was decreed on merits. Therefore, there is
no need for remitting the matter back to the trial court and
therefore, prays for dismissing the appeal.
11. Having heard the arguments of learned counsel for
the parties, perused the records.
12. The points that arise for consideration in his appeal
are :
(i) Whether the plaintiff has made out the
case for allowing the appeal and for remitting
the matter back?
(ii) What order ?
13. Perusal of the records reveals that the plaintiff and
defendant claim right and title over the suit schedule property
through two different sale deeds. Admittedly, the property
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belongs to Srigandada Kavalu Vasathi Rahitara Sanga and the
sites were formed by the said Society. Initially, the suit
schedule property was sold to the vendor of the defendant in
the year 1993 and subsequently, the defendant said to be
purchased the said site on 21.03.2013 under the sale deed.
The plaintiff also claims right over the property by purchasing
the same for sale consideration. When both the parties claim
right over the same property, it is necessary for the court to
decide the issue on merits.
14. Of course, the respondent-plaintiff said to be filed a
suit for bare injunction in O.S. No.791/2015, which came to be
dismissed for non-prosecution. It is submitted by the defendant
that there is no liberty or prior permission obtained from the
Court for the purpose of filing the suit for declaration which is
hit by Order II Rule 2 of CPC. Therefore, the trial Court is
required to answer the contention in respect of decreeing the
suit. That apart, the vendor of the defendant is not made as a
party to the suit. Such being the case, without making the
necessary party to the suit, decreeing the suit that the plaintiff
is the owner of the property, is not correct. Therefore, I am of
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the view that the matter requires to be remitted back to the
trial court for fresh consideration and lead evidence and to
cross examine P.W.2.
15. In the result, the following order is passed:
(i) The appeal is allowed in part.
(ii) The judgment and degree passed by the X
Additional City Civil and Sessions Judge, Bengaluru, in
O.S.No.4444/2017 dated 25.11.2022, is hereby set
aside.
(iii) The matter is remitted back to the trial
Court for fresh consideration by giving liberty to the
parties to implead necessary parties for deciding the
suit on merits.
(iv) The appellant-defendant shall pay cost of
Rs.10,000/- to the respondent-plaintiff within two
weeks.
(v) The parties shall appear before the trial
Court on 28.11.2024, without any further notice.
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(vi) The trial Court shall dispose of the matter
as early as possible.
Sd/-
(K.NATARAJAN)
JUDGE
CS
CT:SK
