Karnataka High Court
Sri Srinivasa vs Sri Uddandi on 12 November, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RSA No. 1645 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 1645 OF 2016
BETWEEN:
SRI SRINIVASA,
S/O MUNIVENKATAPPA,
AGED ABOUT 47 YEARS,
R/AT 13TH CROSS, 2ND MAIN ROAD,
AMARAVATHI LAYOUT,
BANGARPET - 563 162,
KOLAR DISTRICT.
...APPELLANT
[BY SRI. SURESHA M., ADVOCATE (PH)]
AND:
1. SRI UDDANDI,
SINCE DECEASED BY HIS LRS
a. SMT. GETHZIMA PAUL,
W/O S RAGLAND PAUL,
Digitally signed by AGED ABOUT 47 YEARS,
ANUSHA V NO.22, RAMASWAMY PILLAI STREET,
Location: High VERUPATCHIPURA, OTTERI,
Court Of Karnataka VELLORE, TAMILNADU.
b. SMT. KEMBA,
W/O F. FRANCIS XAVIER,
AGED ABOUT 40 YEARS,
NO.19, NEXT TO ST.THOMAS CHURCH,
CHAMARAJAPET, ANDERSONPET,
K.G.F., BANGARPET TALUK,
KOLAR DISTRICT.
c. SRI SAMUEL,
S/O LATE UDDANDI,
AGED ABOUT 39 YEARS,
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RSA No. 1645 of 2016
NO.3499, 2ND MAIN,
13TH CROSS, AMARVATHY LAYOUT,
DESHIHALLI, BANGARPET - 563 162,
KOLAR DISTRICT.
d. SMT. RACHELA,
W/O A.P. SUNDER RAJ,
AGED ABOUT 36 YEARS,
NO. 3449, 2ND MAIN, 13TH CROSS,
AMARAVATHY LAYOUT, DESHIHALLI,
BANGARPET - 563 162,
KOLAR DISTRICT.
e. SRI IMMANUEL,
S/O LATE UDDANDI,
AGED ABOUT 32 YEARS,
NO. 3449, 2ND MAIN,
13TH CROSS, AMARAVATHY LAYOUT,
DESHIHALLI, BANGARPET - 563 162,
KOLAR DISTRICT.
2. SRI H. CHALAPATHY,
S/O HUCHAPPA,
AGED ABOUT 42 YEARS,
R/AT AMARAVATHY LAYOUT,
BANGARPET - 563 162.
...RESPONDENTS
[BY SRI N. RAMAKRISHNA, ADV. FOR R1 (a - e) (ABSENT);
V/O/D 21.10.2021-NOTICE TO R2 IS DISPENSED WITH]
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 27.06.2016 PASSED IN RA
NO.11/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
PRINCIPAL JMFC, KGF., DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 26.11.2015 PASSED IN OS
NO.87/2014 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND
JMFC, BANGARPET.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 1645 of 2016
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
Challenging judgment and decree dated 27.06.2016
passed by Senior Civil Judge and Principal JMFC, KGF
(hereinafter referred to as 'first appellate Court') in RA
no.11/2016 and judgment and decree dated 26.11.2015 passed
by Principal Civil Judge and JMFC, Bangarpet, in
O.S.no.87/2014, this appeal is filed.
2. Brief facts as stated are, appellant was defendant
no.1 in suit filed by respondent no.1 herein for permanent
injunction restraining defendants from interfering with peaceful
possession and enjoyment of plaintiffs over suit property. Suit
claim was based on assertions that plaintiffs had purchased suit
property from Wajiha Begum, under a registered Sale Deed
dated 04.08.1997. It was stated that suit property was
originally belonged to one Parthiban, who sold it to Wajiha
Begum under Sale Deed dated 04.03.1993. It was further
stated that entire property was having stone slab compound
wall, revenue records were mutated in name of plaintiffs and
they were paying tax to Bangarpet Town Municipality. It was
further stated that in year 2003, one Chikkamunegowda sought
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to interfere with suit property by encroaching 3 feet space and
road existing on eastern side of suit property. It was stated,
said 3 feet space was situated in front of house property of
plaintiffs within suit schedule and was only way for ingress and
egress for plaintiffs were using since many years. It was stated
that on account of interference, plaintiffs filed O.S.no.187/2004
for permanent injunction against Chikkamunegowda. In said
suit, Chikkamunegowda had filed written statement and
counter claim alleging encroachment of his property by
plaintiffs and for possession of encroached portion against
plaintiffs. It was further stated that plaintiffs' suit was decreed
by rejecting counter claim. It was further stated that defendant
no.1 in present suit was purchaser from Chikkamunegowda
under registered Sale Deed dated 03.11.2005 during pendency
of suit. Attempt to put up road by removing stone slabs had
given rise to cause of action for filing suit against defendants.
It was stated that in said suit, defendant appeared on
19.06.2015 and sought time to engage services of counsel.
Thereafter, on 10.07.2015, he remained absent and was placed
ex-parte. Subsequently, application was filed to recall said
order. Application was allowed. But on same day, written
statement was taken as not filed. Thereafter, trial Court framed
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following issues and matter was posted for recording of
evidence.
"1) Whether the plaintiffs are entitled for permanent
injunction against the defendants?
2) What order?"
3. Thereafter, on 06.07.2015, plaintiff was examined
as PW.1 and Exs.P1 to P14 were marked. As there was no
cross-examination and defendant no.1 had not filed written
statement, case was posted for judgment. Hence, judgment
and decree passed by trial Court was virtually without
opportunity to defendant to contest. Aggrieved, RA no.11/2016
was filed. It was contended that judgment and decree passed
by trial Court was contrary to material on record and
capricious. It was contended that no material was placed to
establish plaintiff was in lawful possession over suit property.
Even, identity of suit property was not established. Therefore,
trial Court erred in answering point no.1 in affirmative and even
prayer for remand was also made. First appellate Court framed
following points for consideration:
"1) Whether the finding of the Trial Court in
decreeing the suit with costs in O.S.No.87/2014
by judgment and decree dated: 26.11.2015 is
erroneous, illegal and against the material
placed on record?
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2) Whether the appellant has made out a case so
as to remand the matter to the learned Trial
Court for fresh adjudication on merits?
3) Whether the impugned Judgment and decree
passed by the learned trial judge require to be
interfered with?
4) What Order?"
4. Answering point no.1 in affirmative, points no.2 and
3 in negative and point no.4 by dismissing appeal. Aggrieved,
present appeal is filed.
5. Sri M.Suresh, learned counsel for appellant sought
to contend that first appellate Court erred in noting that
sufficient opportunity was not granted to appellant-defendant
no.1 to file written statement and to contest suit. Both Courts
failed to notice there was no road existing on eastern side of
suit property and boundary of suit property on eastern side was
property of appellant-defendant no.1. When Sale Deed dated
04.02.1993 executed by R.Parthiban in favour of plaintiffs'
vendor indicated eastern boundary as Kodandarama's land i.e.,
vendor of Chikkamunegowda from whom defendant no.1 had
purchased suit property. There was no material to substantiate
existence of any road. Therefore, following substantial question
of law would arise for consideration:
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"Whether both courts were justified in decreeing
suit for permanent injunction in respect of a property
which does not exist arise for consideration".
6. Learned counsel for appellant prayed for answering
same in favour of appellant by allowing appeal.
7. Heard learned counsel for appellant, perused
impugned judgment and decree and record. None appears for
respondents.
8. From above, it is seen, plaintiff filed suit for
permanent injunction against appellant-defendant no.1 and
another to restrain them from interfering with his peaceful
possession of suit property. Suit claim was based on assertion
that plaintiffs had purchased suit property from Wajiha Begum
under registered Sale Deed dated 05.08.1997 (Ex.P2) and
same was in possession of plaintiffs and there was existence of
3 feet wide road, which was only way of ingress and egress to
plaintiffs. It was stated, defendant no.1, who was purchaser of
property from Chikkamunegowda had sought to encroach on
road portion. It was further stated, plaintiffs had earlier filed
suit against Chikkamunegowda and obtained decree of
permanent injunction in respect of very same suit property.
To corroborate assertions, plaintiffs produced a copy of Sale
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Deed dated 04.02.1993 in favour of his vendor and Sale Deed
dated 05.08.1997 executed in his favour as Exs.P1 and P2.
Apart from same, hakku patra, demand register extract, plan,
survey sketch, tax paid receipts and judgment and decree
passed in O.S.no.187/2004, etc., were marked as Ex.P3 to P14.
9. It is seen, appellant-defendant no.1 did not file
written statement or led evidence. Virtually, assertions in plaint
and evidence led by plaintiffs have remained unchallenged.
Though appeal was filed, first appellate Court concurred with
findings of trial Court and dismissed appeal.
10. While passing impugned judgment and decree, trial
Court has taken note of assertions in plaint and contents of
Sale Deeds-Ex.P1 and P2. It noted that assertions and evidence
on behalf of plaintiffs were uncontroverted. It also took note of
Ex.P8-judgment and decree passed in earlier suit namely,
O.S.no.187/2004 filed by plaintiffs against Chikkamunegowda,
vendor of defendant no.1. It noted that decree was passed
injuncting Chikkamunegowda from interfering with plaintiffs'
possession over suit property. In view of said judgment and
decree, it held, plaintiffs had established possession and
interference with same by defendant. On said finding, it
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decreed suit. First appellate Court, on reassessment, has
concurred with findings.
11. On comparison of schedule of suit property in
judgment and decree in O.S.no.187/2004 and present plaint
schedule, it is seen, decree is passed in respect of very same
property. Said judgment and decree is passed on consideration
of virtually very same documentary evidence as in present suit
and after dismissing counter claim by Chikkamunegowda
alleging encroachment by plaintiffs. Present defendant no.1
purchased property during pendency of said suit. Judgment and
decree passed in said suit has not been questioned and same
has attained finality. These findings about possession of
property by plaintiffs and interference by vendor of defendant
no.1 have attained finality.
12. Further, in instant case, on appearance, defendant
no.1 was initially placed ex-parte, though later, said order was
recalled, he failed to file written statement, but defendant had
sought to contest plaintiffs assertions. Same would sufficiently
reinforce finding of trial Court about interference.
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13. In view of above, findings of trial Court on points
framed, cannot be stated to be either illegal or contrary to
material on record. First appellate Court has concurred with
said findings on re-examination. Fact that defendant no.1 is
none other than purchaser of suit property from
Chikkamunegowda, who had suffered permanent injunction
decree against plaintiffs in respect of very same property,
would substantiate findings of both Courts. Therefore, no
substantial question of law arises for consideration.
14. Appeal is without any merits and it is accordingly
dismissed at stage of admission.
No order as to costs.
Sd/-
(RAVI V HOSMANI)
JUDGE
AV
