Karnataka High Court

On The Death Of Late Muniyappa vs Sri Chinnappa on 9 September, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                  NC: 2024:KHC:36958
                                                 RFA No. 157 of 2024




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 9TH DAY OF SEPTEMBER, 2024

                                     BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
                  REGULAR FIRST APPEAL NO. 157 OF 2024 (INJ)
            BETWEEN:

                  ON THE DEATH OF LATE MUNIYAPPA,
                  REPRESENTED BY HIS LEGAL REPRESENTATIVES

            1.    SMT. MUNITHAYAMMA,
                  WIFE OF LATE MUNIYAPPA,
                  AGED ABOUT 85 YEARS,

            2.    SRI. RATHNAPPA,
                  SON OF LATE MUNIYAPPA,
                  AGED ABOUT 70 YEARS,

            3.    SRI. NARAYANASWAMY,
                  SON OF LATE MUNIYAPPA,
                  AGED ABOUT 68 YEARS,

            4.    SRI. RAJA,
Digitally
signed by         SON OF LATE MUNIYAPPA,
MALATESH          AGED ABOUT 65 YEARS,
KC
Location:   5.    SRI. BABU,
HIGH              SON OF LATE MUNIYAPPA,
COURT OF
KARNATAKA         AGED ABOUT 62 YEARS,

            6.    SMT. VARALAKSHMI,
                  DAUGHTER OF LATE MUNIYAPPA,
                  AGED ABOUT 59 YEARS,

            7.    SMT. VEDHA,
                  SON OF LATE MUNIYAPPA,
                  AGED ABOUT 58 YEARS,
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                                         NC: 2024:KHC:36958
                                    RFA No. 157 of 2024




    ALL ARE RESIDING AT NO. 10,
    6TH A CROSS, VEERANNAPALYA,
    ARABIC COLLEGE POST, BENGALURU - 560 045,
    THROUGH SPA SRI. NARAYANASWAMY,
    SON OF LATE MUNIYAPPA,
    AGED ABOUT 68 YEARS.
                                          ...APPELLANTS
(BY SRI. JAFFER ALI MANSOOR, ADVOCATE)
AND:

1.   SRI. CHINNAPPA,
     S/O LATE CHIKKAMUNISWAMAPPA,
     AGED ABOUT 70 YEARS,
     RESIDING AT NO. 134, 3RD CROSS,
     BALACHANDRA LAYOUT,
     BABUSAPALYA, BANGALORE - 560 043.

2.   SRI. THAMMANNA,
     S/O LATE CHIKKAMUNISHAMAPPA,
     AGED ABOUT 73 YEARS,
     RESIDING AT 6TH CROSS,
     VEERANNAPALYA, NAGWARA,
     BANGALORE - 560 045.
                                            ...RESPONDENTS
(BY SRI.JANARDHANA G, ADVOCATE FOR R1)
      THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE
1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
30.10.2023 PASSED IN OS NO.15222/2005 ON THE FILE OF
XIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO
HALL UNIT, BANGALORE., DECREEING THE SUIT FOR
PERMANENT INJUNCTION AND MANDATORY INJUNCTION.

    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                               NC: 2024:KHC:36958
                                              RFA No. 157 of 2024




CORAM:      HON'BLE MR JUSTICE V SRISHANANDA



                        ORAL JUDGMENT

Though the matter is listed for orders, by consent of

parties, present appeal is taken up for final disposal.

2. Parties are referred to as plaintiff and

defendants as per their original ranking before the Trial

Court.

3. Brief facts of the case which are utmost

necessary for disposal of the appeal are as under:

3.1. Plaintiff filed a suit for permanent injunction and

mandatory injunction in respect of following property

(herein after referred to as suit schedule property):

All that house site No.9, forming part of Survey No.54/3, situated at Veerannapalya Grama, Nagawara, Bangalore North Taluk, Bangalore, measuring East to West:72 feet on its Northern site, 70 feet on the Southern site and North to South : 35 feet and bounded on the :

East by : 30 feet wide road

West by : Davidappa's property

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North by : Portion No.8

South by : Portion No.10

3.2. It is the case of the plaintiff that towards

Southern side of the suit property, there exists a site

bearing No.10 belonging to his brother namely defendant

No.1 which has been sold by the defendant No.1 in favour

of defendant No.2 who is none other than cousin of the

plaintiff.

3.3. It is further contended by the plaintiff that

defendant No.2 has made hectic preparations for putting

up a construction on site No.10 by encroaching the portion

of the suit property and plaintiff having come to know

about the same, resisted for the same. Despite such

resistance, defendant No.2 put up the construction

encroaching the suit property necessitating the plaintiff to

file the present suit.

4. Pursuant to the suit summons issued, defendant

No.2 appeared and filed the written statement contending

that defendant No.1 is the own brother of plaintiff and

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defendant No.2 is the cousin brother of plaintiff but all

other allegations made in the plaint were denied.

5. Learned Trial judge raised necessary issues and

after recording the evidence of the plaintiff and D.W.1 in

part, noted the fact that D.W.1 did not submit himself for

the cross-examination, discarded the evidence of D.W.1 by

order dated 25.07.2011. Thereafter, appointed a Court

Commissioner for local inspection and obtained a report.

6. Based on the material evidence placed on

record, initially learned Trial Judge dismissed the suit of

the plaintiff which was carried up before this Court in RFA

No.422/2012.

7. Subsequent thereto, this Court heard the appeal

on merits and remitted the matter to the Trial Court for

fresh disposal in accordance with law.

8. After remand, parties placed additional evidence

on record and thereafter, suit came to be decreed. The

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same is under challenge by legal representatives of

defendant No.2 before this Court.

9. Learned counsel for the appellants contended

that when the suit was pending, original defendant No.2

died and his legal representatives on account of the

poverty and also not knowing the pendency of the

litigation between the plaintiff and defendants, did not

properly participate in the suit and ultimately resulted in

decreeing of the suit resulting in miscarriage of justice and

sought for allowing the appeal.

10. Per contra, learned counsel for the

respondent/plaintiff supports the impugned judgment.

11. Having heard the parties in detail, this Court

noted that by order dated 25.07.2011, evidence of D.W.1

got discarded on account of non appearance for further

cross-examination. In other words, proper opportunity

was not granted for the legal representatives of the

appellant to participate in the suit and establish their case.

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12. Learned counsel for the appellants also invited

the attention of this Court to the Ex.C.9 which was not

filed by the Court Commissioner at the first instance and it

is only after he was cross-examined, the rough sketch that

was prepared by the commissioner got marked as Ex.C.9.

He also points out that there is a total variation between

Ex.C.9 and Ex.C.5 inasmuch as in Ex.C.9, there is no

encroachment noted by the Court Commissioner but in

Ex.C.5, there is a clear mention of the encroachment,

which is a matter that needs to be looked into by placing

material evidence on record by the parties and therefore,

an opportunity needs to be given.

13. Taking note the fact that suit is of the year

2005 and it is the legal representatives of defendant No.2

who are now prosecuting the matter and did not have the

proper assistance when defendant No.2 died, this Court is

of the considered opinion that setting aside the impugned

judgment and decree subject to payment of cost of

Rs.50,000/- and directing legal representatives of

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defendant No.2 to lead the evidence and then proceed with

the case in accordance with law, on merits, in a time

bound manner, would meet the ends of justice.

14. Accordingly, following:

ORDER

i. Appeal is allowed

ii. Impugned judgment and decree passed in

O.S.No.15222/2005 dated 30.10.2023 is

hereby set aside.

iii. Matter is remitted to the Trial Court for fresh

disposal in accordance with law subject to

payment of cost of Rs.50,000/- which is

condition precedent for further participate of

the appellants in the suit.

iv. Parties shall appear before the Trial Court

positively on 27.09.2024.

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v. It is made clear that parties are not allowed

to retract from the admissions already

available on record.

vi. Thereafter, learned Trial Judge shall afford

an opportunity for the appellants/legal

representatives of defendant No.2 to place

additional evidence if any and conclude the

suit on or before 30.11.2024.