Karnataka High Court
Sri B Krishana Murthy vs Sri R Chandra Reddy on 18 June, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF JUNE, 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
R.F.A.NO.2058/2010
BETWEEN:
1. SRI B.KRISHANA MURTHY
AGED ABOUT 44 YEARS,
S/O.P.BASAPPA
2. SRI N.NATARAJ
AGED ABOUT 38 YEARS,
S/O P.N.NARAYANASWAMY
BOTH ARE RESIDING AT NO.1,
BASAPPA COLONY,
NAGASETTY HALLI,
BANGALORE - 560 094
...APPELLANTS
(BY SRI R.BHADRINATH, ADV.,)
AND:
1. SRI R.CHANDRA REDDY
AGED ABOUT 58 YEARS,
S/O RAMA REDDY,
RESIDING AT NO.14,
1ST 'A' MAIN,
KUMARAKRUPA NILAYA,
BINNY MILL ROAD,
GANGA NAGAR,
BANGALORE - 560 024
2. SMT C.KAVITHA
AGED ABOUT 36 YEARS,
W/O R. PRASAD,
RESIDING AT NO.384,
2ND MAIN, DOMLUR,
BANGALORE - 560 071. ...RESPONDENTS
2
(BY SRI C.J.JAGADEESHA, FOR SRI G.PAPI REDDY,
ADVS. FOR R-2
SRI J.V.CHANDRA SHEKAR, ADV. FOR C/R-1)
THIS RFA IS FILED U/SEC.96, OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 01.09.2010 PASSED IN
O.S.No.721/2003 ON THE FILE OF THE XVIII ADDL. CITY
CIVIL JUDGE, BANGALORE, (CCH 10), DISMISSING THE SUIT
FOR PERPETUAL INJUNCTION.
THIS RFA COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is a plaintiffs appeal challenging the judgment and decree passed by the XVIII Additional City Civil Judge, Bangalore dated 01.09.2010 in O.S.No.721/2003, whereunder plaintiffs suit for bare injunction has been dismissed.
2. By consent of learned advocates, appeal is taken up for final disposal. Since entire pleadings, deposition and exhibits have been made available for perusal of this Court.
3. Facts in brief leading to filing of this appeal are as under and parties are referred to as per rank in the trial Court:
3
Plaintiffs sought for perpetual injunction against defendants in O.S.No.721/2003 contending interalia that suit schedule property is carved out of land bearing survey No.78/4A and it originally belonged to grandfather of plaintiffs one Sri Puttananjappa and said land was measuring 2 acres 6 guntas including kharab land. It was further contended that suit schedule property is well developed area and its surroundings are fully constructed by buildings and no agricultural activities are carried out and it has lost the characteristic of agricultural land. Plaintiffs further contended that father of plaintiffs and their brother Sri Jayaram had formed a revenue layout and sold sites to various persons and had sold site to defendants measuring 30 feet X 40 feet on North - East corner as reflected in the sketch appended to plaint and remaining portion of land was retained by the plaintiffs family, which was claimed to be suit schedule property. It was also contended that father of plaintiffs and their brother Jayaram were not in good terms and even though there was no partition between family members, they have entered into an agreement with third parties in respect of 4 joint family property and as such they also sought for leave of the Court to file a separate suit for partition of joint family property. Plaintiffs contended that defendants are attempting to put up construction in the suit schedule property over which they have no semblance of right over the site.
4. On service of suit summons defendant No.1 appeared and filed his written statement denying averments made in the plaint. It was further contended that survey No.78/4 is wrongly depicted as 78/4A. Defendant No.1 further contended that three sons of Sri Puttananjappa had formed sites in land bearing survey No.78/4A and defendant No.1 had purchased site No.17 formed in survey No.78/4 and also site Nos.18 and 19, which was sold by one Sri Jayaram to Sri K.N.Ramakrishna under a registered sale deed dated 02.06.1980. Said Sri K.N.Ramakrishna inturn had sold said site Nos.18 and 19 to defendant No.1 by executing General Power of Attorney and undertaking for valuable consideration and defendant was put in possession of said properties. It was also contended that plaintiff No.1 was a 5 party to O.S.No.1934/84, wherein a compromise was effected in favour of father of plaintiffs also and as such, there was no cause of action in suit in question. Accordingly, defendant No.1 sought for dismissal of suit.
5. On the basis of the pleadings of parties, trial Court framed following issues for its consideration:
(i) Whether the plaintiffs proves that they are in possession of suit schedule property?
(ii) Whether plaintiffs prove alleged
obstructions?
(iii) Whether defendant proves that suit
valuation is incorrect and plaintiffs have paid insufficient court fee?
(iv) Whether plaintiffs are entitled for any relief?
(v) What decree? What order?
6. Plaintiff No.1 got himself examined as P.W.1 and got produced 2 documents getting them marked as Exs.P-1 and P-2. Defendant No.1 got himself examined as D.W.1 6 and got produced 12 documents by getting them marked as Exs.D-1 to D-12. After considering the pleadings and on evaluation of entire evidence available on record namely, oral and documentary, trial Court has dismissed the suit by judgment and decree dated 01.09.2010. It is this judgment and decree, which is under challenge in the present appeal.
7. It is the contention of Sri R.Bhadrinath, learned counsel appearing for appellant that trial Court has failed to consider the ownership of plaintiff's grandfather over suit schedule property and plaintiffs having continued in possession of same till date. He would submit that defendants themselves have admitted in their written statement that grandfather of plaintiffs namely Sri Puttananjappa was the absolute owner of entire survey No.78/4, who was in possession of same and as such, he contends that trial Court ought to have held that plaintiffs have continued in possession of suit schedule property on demise of Sri Puttananjappa, which has been ignored by trial Court. He would also contend that defendants are 7 not the owners of suit schedule property and at no point of time, they were in possession of same and non-
consideration of evidence tendered by the plaintiffs in this regard having been ignored, has resulted in erroneous judgment and decree being passed by trial Court.
8. He would also submit that trial Court while answering issue No.1 namely, suit in O.S.No.1934/84 filed between family members of plaintiffs for partition, has held that there was no reference to survey No.78/4-A and has erroneously come to a conclusion that plaintiffs had utterly failed to prove that children of deceased Sri Puttananjappa had retained any portion of survey No.78/4-A and contends that on account of non- consideration of available evidence in proper perspective has resulted in prejudice to plaintiffs since suit has been dismissed by non-consideration of material evidence and erroneous appreciation of available evidence. On these grounds, learned counsel submits that appeal be allowed by setting aside the judgment and decree passed by trial Court and prays for decreeing the suit of plaintiffs. 8
9. Per contra, Sri J.V.Chandra Shekar learned counsel appearing for respondent No.2 and Sri C.J.Jagadeesha, learned counsel appearing on behalf of Sri G.Papi Reddy, for respondent No.1 would support the judgment and decree passed by trial Court and by reiterating the contentions raised before trial Court, they would submit that defendants having acquired title and possession to suit schedule property and plaintiffs' father and their brother Jayaram were divested of title, as well as possession of survey No.78/4 or 78/4-A and as such, trial Court has rightly rejected their claim. Hence, they pray for dismissal of appeal.
10. Having heard the learned Advocates appearing for parties and on perusal of judgment and decree in question, as also pleadings of parties, evidence tendered along with grounds urged in appeal memorandum, I am of the considered view that following points would arise for my consideration:
(i) Whether judgment and decree passed by trial Court suffers from any illegality or 9 material irregularity calling for interference at the hands of this Court?
OR
(ii) Whether there has been non-
consideration of material evidence or erroneous appreciation of available evidence by trial Court for exercise of appellate jurisdiction by this Court?
(iii) What order?
11. Though pleadings extracted hereinabove would indicate the factual matrix, this Court is of the considered view that it would suffice to state few facts which are not delved upon hereinabove for adjudicating the points formulated hereinabove.
12. Property bearing survey No.78/4 originally belonged to one Sri Puttananjappa and he had three sons by name Basappa, Narayanaswamy and Jayaram. On demise of Sri Puttananjappa they had succeeded to his estate and it is also not in dispute that said three brothers had formed revenue layout in the said property, which was measuring 10 2 acres 6 guntas including kharab land. The extent of land owned by Sri Puttananjappa, has been reflected in RTC extract, which came to be produced and marked as Exs.P- 1 and P-2. These are undisputed facts.
RE. POINT NO.1:
13. Sons of Basappa and Narayanaswamy (grandsons of Sri Puttananjappa) have filed the suit in question.
Averments made in paragraph 5 of the plaint would clearly indicate that plaintiffs are seeking their right to be reserved for instituting a suit for partition in respect of survey No.78/4 namely, they intend to seek for a comprehensive relief. Reading of entire plaint of O.S.No.721/2003 i.e., suit in question which is produced along with appeal memorandum would indicate that at an undisputed point of time sons of Sri Puttananjappa namely, Sriyuths Basappa, Narayanaswamy and Jayaram had formed a private layout in revenue land or agricultural land namely, survey No.78/4A and have sold sites of different dimensions to third parties. In fact 11 plaintiffs themselves admit in paragraph 4 of plaint to the said effect:
"4. The plaintiffs submits that the Sy.No.78/4-A was situated in the developed area, the father of the plaintiffs and his brother Jayaram had formed a revenue layout and sold the sites to various persons like one site also sold to the defendant measuring 30 x 40 feet towards north east corner of the suit sketch as demarked shown in pencil mark and rest of the property shown in the sketch retained by the plaintiffs family measuring north to south on the eastern side xxxxxxxxxxxxx which is the suit schedule property."
14. A reading of above averment made in plaint would suggest that father of plaintiffs and their brother Sri Jayaram had retained a portion of property after forming a layout and alienating same to different persons, plaintiffs have failed to establish as to what is the actual extent of property sold to third parties and what is the remaining extent retained by them or by their fathers. Plea in this regard in the plaint is vague. It is not in dispute that plaintiffs father and their brother Jayaram had sold sites of different dimensions, which came to be formed under Survey No.78/4 or 78/4-A. At this juncture it would be 12 appropriate to note that plaintiffs have utterly failed to demonstrate as to when survey No.78/4 was renumbered as 78/4-A.
15. Be that as it may. Defendants having appeared and filed written statement, particularly defendant No.1 has specifically contended that survey No.78/4 is erroneously shown as Survey No.78/4-A. It is also contended by defendant No.1 that he had purchased site No.17 formed in survey No.78/4 and site Nos.18 and 19 formed in same survey number had been sold by Sri Jayaram to one Sri K.N.Ramakrishna under a registered sale deed dated 02.06.1980 and said Sri Ramakrishna inturn had sold said site Nos.18 and 19 to defendant No.1 by executing two documents, which are said to be contemporaneous documents. Thus, defendants have established prima facie that they are in lawful possession of sites, which they have acquired under documents namely, Exs.D-1 to D-4. In other words burden cast on plaintiffs to establish that
(i) they had retained certain sites or area in survey No.78/4 or 78/4-A after having sold sites of various 13 dimension to third parties and (ii) after selling those sites, what is the exact extent retained by them. On both counts, plaintiffs have failed to demonstrate these aspects. It is because of this precise reason trial Court has rightly observed as to whether suit schedule property is part and parcel of survey No.78/4-A situated at Nagasetty Halli, Kasaba Hobli, Bangalore North Taluk or is it survey No. 78/4 only will have to be enquired in a comprehensive suit. Trial Court has rightly observed that suit O.S.No.1934/84 filed for partition to which first plaintiff was a party, there was no reference whatsoever to survey No.78/4-A at all, or in other words, no land in that survey number and same having been retained by family members of Sri Puttananjappa or his sons Sriyuths Basappa, Narayanaswamy and Jayaram.
16. Trial Court has also taken note of fact that plea put forward by defendant No.1 in the written statement that he had already parted the property in favour of his daughter i.e., defendant No.2 to dismiss the suit since no cause of action existing against defendant no.1. One another factor which was taken note by the trial Court to 14 dismiss the suit is admission of P.W.1. In his cross- examination, whereunder it was admitted by him that there was a partition between himself (plaintiff - P.W.1) and his brothers under a registered partition deed and there being no reference to suit schedule property in the said partition deed. In fact, there is not even a reference to suit schedule property in partition suit filed in the year 1984 i.e., O.S.No.1934/84 also. In that view of the matter, it cannot be construed or held that either plaintiffs father or plaintiffs were continuing in possession of said property. Trial Court has rightly held that there was no cause of action against defendant No.2, inasmuch as plaintiffs had initially filed the suit only against defendant No.1 alleging in paragraph 8 of plaint that cause of action for suit arose on 26.01.2003 against defendant No.1. In other words, there was no cause of action at all at the time the suit in question was filed. If defendant No.2 had interfered with possession of plaintiffs, cause of action ought to have been a different cause of action, which is neither pleaded in the plaint and nor there being any amplification of plea in this regard in plaint. On the other 15 hand, defendant No.2, who has been subsequently impleaded, has been able to demonstrate that she is in possession of suit schedule property and she had entered into an development agreement and building has already come up in the suit schedule property namely, apartments, which is said to have been occupied by third parties.
17. Hence, for aforestated reasons, I am of the considered view that there is no illegality committed by trial Court and it cannot be construed that there has been either non-appreciation of evidence or erroneous appreciation of available evidence by trial Court for exercise of appellate jurisdiction by this Court. Accordingly, point No.1 formulated hereinabove is answered in the negative i.e., against appellant and in favour of respondents-defendants.
18. For the reasons stated hereinabove, I proceed to pass the following:
ORDER i. Appeal is dismissed.16
ii. Judgment and decree passed by XVIII Additional City Civil Judge, Bangalore dated 01.09.2010 in O.S.No.721/2003, is hereby affirmed.
iii. Costs made easy.
Sd/-
JUDGE DR