Karnataka High Court
Sri V Anil Kumar vs Sri G Chinnappa Reddy on 14 October, 2024
Author: K.Natarajan
Bench: K.Natarajan
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RFA No. 829 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 829 OF 2014 (DEC/INJ)
BETWEEN:
SRI. V. ANIL KUMAR
S/O LATE B.H.VARADARAJU,
AGED ABOUT 33 YEARS,
R/AT NO.5/253, 17TH MAIN,
3RD CROSS, MUNESHWARA BLOCK,
BANGALORE - 560 026.
...APPELLANT
(BY SRI. VINAYA KEERTHY, ADVOCATE)
AND:
1. SRI. G. CHINNAPPA REDDY
S/O K.A.GOPAL REDDY,
AGED BAOUT 62 YEARS,
2. SRI. C.RAJESH
S/O CHINNAPPA REDDY,
Digitally signed by MAJOR
VEDAVATHI A K R/AT NO.40, 1ST CROSS, 5TH MAIN,
Location: High
Court of ITTAMADU, ANJANEYA NAGAR,
Karnataka BANASHANKARI 3RD STAGE,
BANGALORE - 560 085.
3. SRI. NAGENDRA PRASAD
S/O N.NARAYANA,
AGED ABOUT 42 YEARS,
4. SRI. N.RAVINDRA PRASAD
S/O N.NARAYANA,
AGED ABOUT 41 YEARS,
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RFA No. 829 of 2014
5. SRI. N.RAJENDRA PRASAD
S/O N. NARAYANA,
AGED ABOUT 39 YEARS,
RESPONDENTS 3 TO 5 ARE R/AT NO.139/1,
1ST E BLOCK, 2ND PHASE,
BANASHANKARI 3RD STAGE,
BANGALORE-560 085.
6. SMT. LAKSHMAMMA
W/O LATE SOMASHEKAR,
AGED ABOUT 56 YEARS,
7. SRI. KUMAR
S/O LATE SOMASHEKAR,
AGED ABOUT 31 YEARS,
8. SMT. CHOWDAMMA
D/O LATE SOMASHEKAR,
AGED ABOUT 46 YEARS,
9. SRI. MANJUNATH
S/O LATE SOMASHEKAR,
AGED ABOUT 36 YEARS,
RESPONDENTS 6 TO 9 ARE
R/AT HOSAKEREHALLI VILLAGE,
BANASHAHKARI 3RD STAGE,
BANGALORE - 560 085.
10. SRI. KEMPAIAH
S/O SIDDEGOWDA,
AGED ABOUT 56 YEARS,
R/AT NO.189/5, PIPELINE,
SRINAGARA, BABGALORE - 560 050.
...RESPONDENTS
( VIDE ORDER DATED 12.1.24 SERVICE OF NOTICE TO R1 TO
R10 IS HELD SUFFICIENT)
THIS RFA IS FILED UNDER SECTION 96 R/W. ORDER 41
RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED
18.2.2014 PASSED IN O.S.NO.3104/2006 ON THE FILE OF THE
XVII ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE
DISMISSING THE SUIT FOR DECLARATION & INJUNCTION.
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RFA No. 829 of 2014
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
ORAL JUDGMENT
Though this matter is listed for admission, the same is
heard and disposed of finally.
2. This appeal is filed by the appellant/plaintiff under
Section 96 of CPC for setting aside the decree of dismissal of
the suit in O.S.No.3104/2006 dated 18.2.2014 passed by the
XVII Addl. City Civil and Sessions Judge, Bengaluru.
3. Heard the arguments of learned counsel for the
appellant. Respondents are served and unrepresented.
4. The case of the plaintiff before the Trial Court is that
he has filed the suit for declaration and injunction against the
defendants alleging that, he has purchased suit schedule
property bearing Site No.32, Khatha No.21/3 and 21/4
measuring East to West 40 ft. and North to South 36 ft,
situated at Hosakerehalli, Uttarahalli Hobli, Ward No.55,
Bengaluru-50, east bounded by road, west by site No.33,
north by road and south by site No.31 (herein referred as suit
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schedule property). The suit schedule property was purchased
from his mother under sale deed dated 25.4.2003 Yashodha.
Inturn Yashodha said to be purchased property from her
husband Varadaraju who is a GPA holder and father of
defendant No.5. The father of defendant no.5 said to be
executed GPA in favour of his father and inturn his father
executed sale deed from his mother and subsequently the suit
schedule property was purchased by the plaintiff from his
mother. Therefore, filed suit for declaration and to declare that
the GPA executed by the defendant No.10 in his favour. On the
basis of the GPA, the sale deed executed by the defendant
No.2, 6 to 9 in favour of the defendants and the sale deed
dated 12.3.2004 in favour of the defendant Nos.3 to 5 are null
and void and not binding on the plaintiff.
5. In pursuance of the notice, the defendants appeared
through counsel and filed written statement by denying all the
contention and stated that they have legally purchased the suit
schedule property under the sale deed dated 12.3.2004 for
valid consideration and they are in possession and enjoyment
of the suit schedule property. Hence, prayed for dismissal of
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the suit. The defendant Nos.1, 2, 6 to 10 were place Ex-parte.
Only defendant Nos.3 to 5 have filed the written statement.
6. Based upon the pleadings the Trial Court framed 4
issues as under;
(1) Whether plaintiff proves that
deceased Varadaraju purchased suit sites
on 3.10.1980 from Muniyappa?
(2) Whether plaintiff further proves
that his mother being owner suit schedule
property executed sale deed in his favour
on 6.11.2003?
(3) Whether plaintiff is entitle for
declaration of title and possession of suit
property?
(4) What Order or Decree?
7. In order to prove the case, the plaintiff himself
examined as PW1 and got marked 15 documents as per Ex.P.1
to 15 in the examination chief. Subsequently he has not turned
up for the cross examination. Hence, his evidence has been
expunged by the Trial Court and taken as his evidence is 'Nil'.
On the other hand the defendant No.4 was examined as DW1
and got marked 9 documents but there is no cross examination
by the plaintiff. Hence, the Trial Court after hearing the
arguments of the defendant Nos.3 to 5 had passed the
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judgment by dismissing the suit. Being aggrieved by the
same, the appellant- plaintiff are before this court.
8. Learned counsel for the appellant submits though the
appellant was examined as PW1 and got marked the
documents, he is having all the original documents regarding
sale deeds of his mother and his sale deeds and registered GPA
of his father. But without the knowledge, the GPA of the father
has been cancelled by the father of defendant No.5. No notice
has been served. However, though the examination chief was
adduced by the appellant-plaintiff before the Trial Court, but
due to some ill-health and communication gap, he has not
tendered for cross examination. Therefore, Trial Court has
dismissed the suit. Though the defendant given evidence but
he was not given an opportunity to cross examine the
defendant. The suit is for declaration and injunction and the
opportunity should have been given by the Trial Court by
issuing notice. Therefore, prayed for setting aside the
judgment and decree of the Trial Court and give an opportunity
to plaintiff to adduce the evidence, otherwise the appellant will
be put into hardship and loss, which cannot be compensated.
Hence, prayed for allowing this appeal.
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9. The respondents are served and unrepresented.
10. Having heard the arguments and perused the
records, the point that arises for my consideration are;
(i) Whether the appellant has made out a case for setting
aside the judgment and decree by dismissing the suit of the
plaintiff for not tendering cross examination which calls for
interference?
(ii) What Order?
11. Having heard the arguments, perused the records,
reveals though the plaintiff claims that he is the owner of the
property by way of sale deed executed by the mother of the
plaintiff, in pursuance of the GPA executed by the father of the
defendant no.5, in favour of the father of the plaintiff and
inturn the father of the plaintiff executed the sale deed in
favour of the mother. The mother executed the sale deed in
his favour. Though the plaintiff lead the evidence by filing the
documents but not tendered himself for cross examination.
Therefore, the suit of the plaintiff came to be dismissed. the
judgment of the Trial Court also reveals the same. The
defendant though examined as DW1 and marked 9 documents,
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as the Trial Court not able to give finding on the issues, due to
non leading of the evidence by the plaintiff. It is well settled,
that the person who approached the court should give evidence
on his behalf to prove, but the plaintiff though given evidence
in examination chief, but was not able to tender himself for
cross examination, due to which the suit was dismissed by the
Trial Court. When the suit for declaration and injunction is
filed, it is nothing but comprehensive suit, the court is required
to consider all the evidence including the defense taken by the
defendant in the defense. But the issues framed by the Trial
Court is only casting the burden on the plaintiff and there is no
issues in respect of the defense taken by the defendant in the
written statement. That apart, when there was no evidence
lead by the plaintiff, the question of giving finding by the Trial
Court on the evidence produced by the appellant/plaintiff does
not arises. Therefore, I am of the considered view one more
opportunity is required to be given to the plaintiff to adduce
evidence and tender himself for cross examination by the
learned counsel for the defendant, otherwise the case of the
plaintiff will be prejudiced and causes injustice to the plaintiff's
case, as the plaintiff claimed suit schedule property by way of
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sale deed having purchased from the mother, inturn mother
purchased the same from the father who is a GPA holder of the
father of the defendant No.5. Therefore, I am of the view, if
the defendants also not appeared before this court to contest
the matter, such being the case, the matter requires to be
remanded back to the Trial Court for fresh consideration by
giving opportunity to the plaintiff. Hence, appeal deserves to
be allowed.
Accordingly, this appeal is allowed in part.
The judgment of the Trial Court in O.S.No.3104/2006
dated 18.02.2014 passed by XVII Addl. City Civil Judge,
Bengaluru, for having dismissed the suit is hereby set aside.
The suit is restored for giving opportunity to the plaintiff to
adduce evidence in his defense.
The appellant shall appear before the Trial Court and the
Trial Court shall give an opportunity to the appellant to adduce
evidence and also give an opportunity for the defendant and
also permission to cross examine the DW1 and dispose the
matter within a year.
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The appellant shall appear before the court without any
further notice by 11.11.2024.
Office to send the Trial Court records and copy of
judgment immediately.
Sd/-
(K.NATARAJAN)
JUDGE
AKV
CT:SK
