Karnataka High Court
Sri Raghavendra Educational vs Smt J Saraswathi on 5 September, 2024
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RSA No. 460 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL No. 460 OF 2023 (DEC/INJ)
BETWEEN:
SRI RAGHAVENDRA EDUCATIONAL
INSTITUTION SOCIETY
No.29, CHIMINI HILLS
CHIKKABANAVARA
BENGALURU - 560 090.
REP. BY ITS PRESIDENT
SMT. K. SUMITHRA
...APPELLANT
(BY SRI Y R SADASIVA REDDY, SENIOR COUNSEL FOR
Digitally signed by
SHARMA ANAND SRI RAHUL S REDDY, ADVOCATE)
CHAYA
Location: High
Court of Karnataka AND:
SMT. J SARASWATHI
W/O G A NARAYANA SWAMY
AGED ABOUT 55 YEARS
R/A No.233, 14TH MAIN, 1ST PHASE
GOKULA 1ST STAGE, MATHIKERE
BENGALURU - 560 054.
...RESPONDENT
(BY SRI R S RAVI SENIOR COUNSEL FOR
SRI CHANDRAPPA V, ADVOCATE, C/R)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 25.01.2023
PASSED IN RA No.16/2020 ON THE FILE OF THE IX
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRICT, BENGALURU, DISMISSING THE APPEAL AND
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RSA No. 460 of 2023
CONFIRMING THE JUDGMENT AND DECREE DATED 29.08.2013
PASSED IN OS No.188/2010 ON THE FILE OF THE ADDITIONAL
II CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE E.S.INDIRESH
ORAL JUDGMENT
1. This appeal is preferred by the defendant
challenging the judgment and decree dated 25.01.2023
passed in R.A. No. 16/2020 on the file of IX Additional
District and Sessions Judge, Bengaluru, Rural District,
Bengaluru, confirming the judgment and decree dated
29.08.2013 in O.S. No. 188/2010 on the file of II
Additional Civil Judge, Bengaluru Rural District, Bengaluru
decreeing the suit of the plaintiff.
2. For the sake convenience, parties are referred
as per their ranking before the trial Court.
3. It is the case of the plaintiff that land bearing
survey No. 28/2 situated at Chikkabanavara village,
Bengaluru North taluk, belonging to one Papaiah and on
his demise, legal representatives of said Papaiah have
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succeeded to the schedule property. It is also stated that
the legal representatives of late Papaiah and others
formed sites in schedule property during 1992 and legal
representatives of Papaiah - P. Muniswamiah and Puttaiah
have executed GPA in favour of one Ramesh on
16.01.1992 to execute registered sale deed in respect of
sites formed in land bearing survey No. 28/2. In that view
of the matter, plaintiff has purchased suit schedule
property as per registered sale deed dated 30.09.2003
from the vendors and the said sale deed has been
executed by the agent of the legal representatives of late
Papaiah, i.e., Ramesh and therefore, it is contention of the
plaintiff that as per the registered sale deed dated
30.09.2003, the plaintiff has become the owner of
schedule property. It is also stated in the plaint that
plaintiff has put up compound wall around the suit
schedule property leaving small space on the northern side
adjacent to site No. 96 to enter into the suit schedule
property. However, defendant without any right over the
suit schedule property and in the absence of plaintiff, has
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demolished the compound wall and as such, plaintiff has
filed a suit in O.S. No. 188/2010 seeking the relief of
declaration with consequential relief of permanent
injunction restraining the defendant from interfering with
the suit schedule property.
4. On service of suit summons the defendant
entered appearance through his counsel. However, he has
not contested the matter by filing written statement. The
trial Court after considering the material on record, had
formulated points as set out at paragraph No. 10 which
reads as under:
i. Whether the plaintiff is entitled to the relief as
prayed in the plaint?
ii. What order or decree?
5. In order to establish her case the plaintiff was
examined as P.W.1 and got marked 11 documents which
were marked as Ex.P.1 to Ex.P.11. No evidence was
adduced on behalf of the defendant. The trial Court after
considering the material on record by judgment and
decree dated 29.08.2013 decreed the suit holding that the
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plaintiff is the owner of schedule property in terms of the
sale deed dated 30.09.2003 and sale deed dated
28.10.2009 registered before Sub-Registrar's office,
Bengaluru held as void document as the said document
has been made subsequent to the registered sale deed
dated 30.09.2003, having been purchased by the plaintiff
in respect of schedule property. Feeling aggrieved by the
same, defendant has preferred R.A. No. 16/2020 on the
file of First Appellate Court. The said appeal was resisted
by the plaintiff. The First Appellate Court after considering
the material on record by its judgment and decree dated
25.01.2023 dismissed the appeal, consequently, confirmed
the judgment and decree dated 29.08.2013 passed in O.S.
No. 188/2010. Feeling aggrieved by the same, defendant
has preferred this appeal.
6. Heard Sri. Y.R. Sadasiva Reddy, learned Senior
counsel appearing on behalf of Sri. Rahul S. Reddy,
learned counsel appearing for appellant and Sri. R.S. Ravi,
learned Senior counsel appearing on behalf of Sri.
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Chandrappa V., learned counsel appearing for caveat
respondent.
7. Sri. Y.R. Sadasiva Reddy, learned Senior
counsel appearing for the appellant contended that suit
itself is not maintainable on the ground that the plaintiff
has sought for declaration that the sale deed made in
favour of defendant is null and void and therefore, the said
aspect of the matter was not considered by both the
Courts below. He also contended that, even if written
statement has been filed by the defendant and case has
not been contested by the defendant and as such, both
the Courts below ought to have applied its mind since the
suit filed by the plaintiff was for declaration. He also
submitted that the finding recorded by both the Courts
below requires to be interfered with in this appeal. He
further emphasized that the plaintiff had filed O.S. No.
88/2014 and plaintiff had withdrawn the suit and
thereafter filed O.S. No. 1181/2022 against the defendant
seeking the relief of possession and the said aspect would
makes it clear that the plaintiff is not in possession of suit
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schedule property and the said aspect has not been
properly appreciated by both the Courts below.
Accordingly, he submitted that suit ought not to have been
decreed by the trial Court. Accordingly he sought for
interference by this Court.
8. Per contra learned Senior counsel appearing for
respondent - caveator submitted that that the plaintiff had
purchased the suit schedule property as per the registered
sale deed dated 30.09.2003 much before the sale made in
favour of the defendant as per registered sale deed dated
28.10.2009 and in that view of the matter as per the
provision contained under Section 48 of Transfer of
Properties Act, the execution of the first sale deed in
favour of the plaintiff is required to be confirmed by
declaring the second sale deed dated 28.10.2009 as void
in respect of schedule property. Accordingly, he sought for
dismissal of the appeal. Secondly it is contended by the
learned Senior counsel appearing for respondent -
caveator that though the plaintiff had filed O.S. No.
88/2014 against the defendant seeking relief of
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possession, however the said suit was withdrawn on the
ground of jurisdictional aspect and thereafter O.S. No.
1181/2022 was preferred by the plaintiff against the
defendant seeking possession on the ground that portion
of the compound wall has been demolished by the
defendant after the decree was passed by the trial Court in
O.S. No. 188/2010 and therefore, sought for dismissal of
the appeal.
9. Having heard learned counsel appearing for the
parties, it is not in dispute that site bearing No. 95 has
been carved out of land bearing survey No. 28/2 situated
at Chikkabanavara Village. It is the case of the plaintiff
that the plaintiff had purchased the schedule property as
per registered sale deed dated 30.09.2003 from the legal
heirs of late Papaiah through GPA dated 16.01.1992 said
to have been executed by the legal heirs of late Papaiah -
Sri. P. Muniswamaiah and others and therefore, as site No.
95 has been purchased as per registered sale deed dated
30.09.2003, the said sale deed is having priority over the
sale deed said to have been made in favour of the
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defendant on 28.10.2009. It is also to be noted that the
trial Court after considering the material on record,
particularly with regard to Ex.P.4 and Ex.P.11, sale deed
dated 28.10.2009 and applying Section 48 of the Transfer
of Properties Act, rightly came to the conclusion that
priority of rights conferred on transfer of property as
plaintiff had purchased the schedule property on
30.09.2003. Strangely the defendant had entered
appearance but had not contested the matter, did not
choose to file written statement and adduced any evidence
before the trial Court. Therefore, the trial Court after
appreciating the material on record has rightly decreed the
suit holding that the sale deed dated 28.10.2009 said to
have been executed in favour of defendant is a
subsequent sale deed and therefore, no interference is
called for insofar as the decree made by the trial Court.
10. Insofar as re-appreciation of the evidence by
First Appellate Court is concerned, the First Appellate
Court after considering Ex.P.46 - sale deed dated
30.09.2003 wherein the sale has been made in favour of
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plaintiff, rightly confirmed the decree made by the trial
Court.
11. Learned Senior counsel appearing for appellant
contended that the plaintiff had filed suit in O.S. No.
88/2014 and the same was withdrawn and subsequently
O.S. No. 1181/2022 has been preferred by the plaintiff
seeking the relief of possession and in this regard the
averments made in the plaint makes it clear that when the
plaintiff was away from the suit schedule property,
defendant has interfered with the suit schedule property
on the southern side and demolished the compound wall
and therefore, a suit appears to have been filed in O.S.
No. 1181/2022 seeking possession in respect of
encroachment said to have been made by defendant in the
site bearing No. 95. In that view of the matter, I do not
find any merit in the submission made by learned Senior
counsel appearing for appellant as both the Courts below
have taken note of the factual aspects of the matter that
the plaintiff had purchased the suit schedule property as
per the registered sale deed dated 30.09.2003 much
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before the sale deed dated 28.10.2009 made by the said
Ramesh (agent of the original owner) in favour of the
defendant. In the result, I do not find any merit in the
appeal and accordingly appeal is dismissed at the stage of
admission as the appellant has not made out a case for
framing of substantial question of law as required under
Section 100 of CPC.
SD/-
(E.S.INDIRESH)
JUDGE
LRS
