Karnataka High Court
Manu N vs Balaraj on 24 April, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:16442
WP No. 26121 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 26121 OF 2023 (GM-CPC)
BETWEEN:
MANU N
S/O M NAGARAJ,
AGED ABOUT 37 YEARS,
RESIDING AT NO 151/10,
RUSTUMJI VILLAS,
BENGALURU 560 066.
...PETITIONER
(BY SRI. DHANANJAI JOSHI., SENIOR COUNSEL FOR
SRI. LAKSHA KALAPPA .,ADVOCATE)
AND:
1. BALARAJ
S/O MUNIVENKATAPPA,
AGED ABOUT 43 YEARS,
RESIDING AT E-MUTHASANDRA VILLAGE,
SULIBELE HOBLI, HOSAKOTE TALUK,
Digitally signed by BENGALURU RURAL DISTRICT,
LEELAVATHI S R
Location: HIGH BENGALURU 562 114.
COURT OF
KARNATAKA 2. SIDDESH
S/O LATE PAPANNA
AGED ABOUT 52 YEARS,
RESIDING AT GULLAHALLI VILLAGE,
SULUBELE HOBLI, HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT,
BENGALURU 562 129.
3. CHINNAIAH
S/O MUNIVENKATAPPA
AGED ABOUT 59 YEARS,
RESIDING AT GULLAHALLI VILLAGE,
SULUBELE HOBLI, HOSAKOTE TALUK,
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NC: 2024:KHC:16442
WP No. 26121 of 2023
BENGALURU RURAL DISTRICT,
BENGALURU 562 129.
4. SHIVANNDA
S/O MINIVENKATAPPA
AGED ABOUT 45 YEARS,
RESIDING AT E-MUTHASANDRA VILLAGE,
SULIBELE HOBLI, HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT,
BENGALURU 562 114.
5. V PRASAD
S/O V VENKATAPPA,
AGED ABOUT 48 YEARS,
RESIDING AT GIDAPPANAHALLI VILLAGE,
SULIBELE HOBLI, HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT,
BENGALURU 5621 29.
...RESPONDENTS
(BY SRI. PRADEEP KUMAR.R.H., ADVOCATE FOR R-2
SRI. K. SEENAPPA., ADVOCATE FOR R-5
R-1, R-2, R-4 ARE SERVED)
THIS W.P IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 14/02/2023, IN THE O.S. NO. 300/2018 PENDING IN THE
COURT OF THE HONBLE PRINCIPAL CIVIL JUDGE AND JMFC,
HOSAKOTE AT HOSAKOTE AT ANNEXURE-A.
THIS PETITION, COMING ON FOR ORDER, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition by the defendant No.2 in O.S.No.300/2018 on the file of the Principal Civil Judge and JMFC, Hosakote is directed against the impugned order dated 14.02.2023 whereby the request of the petitioner - defendant No.2 to decree the suit of the respondent Nos.1 to 4 - plaintiffs as against the petitioner - -3-
NC: 2024:KHC:16442 WP No. 26121 of 2023 defendant No.2. in view of the admission made by the petitioner - defendant No.2 in his written statement was rejected by the Trial Court.
2. A perusal of the material on record will indicate that the respondent Nos.1 to 4 - plaintiffs instituted the aforesaid suit for permanent injunction and for other reliefs in relation to the suit schedule immovable properties as here under:
"Wherefore, it is prayed that this Hon'ble Court may be pleased to :
a. Set aside the order dated 14.02.2023, in the O.S. No. 300/2018 pending in the court of the Hon'ble Principal Civil Judge and JMFC, Hoskote at Annexure A. b. Consequently , pass the Judgement and decree based on admissions of the defendants, as per the provisions of Order XII Rule 6 of the code of civil procedure, 1908.
c. Pass any such other order as this Hon'ble Court may deemed fit and proper in the interest of equity and justice.
Schedule All the piece and parcel of Kalu dari foot path measuring to an extend of 04 Guntas, criss-crossingrunning from North east to South-West in Sy.No.17 of Ekarajapura Village -4- NC: 2024:KHC:16442 WP No. 26121 of 2023 Selibele Hobli, Hoskote Taluk, Bengaluru Rural District, bounded on the East By : land in Sy.No.17 West By : land in Sy.No.17 North By : Same Foot path leading to Gullahalli Village, South By : Same foot path leading to E Muthasandra Village
3. The petitioner - defendant No.2 filed his written statement interalia admitting the existence of the suit schedule property and that there existed Kaludari / pathway in the suit schedule property as claimed by the respondent Nos.1 to 4 - plaintiffs. The said admissions made by the petitioner - defendant No.2 in the written statement are as hereunder:
"The 2nd Defendant submits that the plaintiffs may even use the admissions made by the 2nd defendant herein in this suit to exercise their rights. The 2nd defendant herein undertakes to demolish the warehouse on top of the suit schedule property once herein directed by this Hon'ble Court. The 2nd Defendant submits that the construction on the suit schedule property was carried out with the bonafied belief that the foot path had been shifted. However, The 2nd Defendant is a law abiding person and is agreeable to rectify this mistake committed due to the fraud carried out by the 1st Defendant.
All the contentions made in these paragraph are true except for the contention that the plaintiffs are currently utilising the -5- NC: 2024:KHC:16442 WP No. 26121 of 2023 foot path as there is already a warehouse constructed on top of it. Furthermore, the neighbouring plots have also constructed industrial complexes on the footpath that continues into their properties. There is also a compound constructed that prevents anyone from entering the property through the footpath. Therefore, from the year 2015, it is impossible for anyone to be utilising the footpath for ingress and egress.
As stated above, the plaintiffs and the other villagers cannot have been currently using the suit schedule property as the 2nd Defendant much earlier to the filing of this suit. The warehouses were constructed on the suit schedule property due to the fraud committed by the 1st Defendant. The 2nd Defendant is unaware as to why the plaintiffs feel it is necessary to make false representations to this Hon'ble Court when they have a perfectly valid case to present. The 2nd Defendant acknowledges that there is a footpath on the suit schedule property and that the warehouses have already been constructed on it due to the fraud committed by the 1st defendant. The 2nd Defendant is in fact willing to rectify this mistake. However, since he is only a joint owner of the said lands along with the 1st defendant, he cannot demolish the warehouse on the suit schedule property without the consent of the 1st Defendant. In case there is a direction by this Hon'ble Court to demolish the warehouse constructed on the suit schedule property, the 2nd defendant will gladly and willing carryout the necessary demolition. However, to claim that the plaintiffs are currently using the footpath on the suit -6- NC: 2024:KHC:16442 WP No. 26121 of 2023 schedule property is a deliberate misrepresentation of the facts intended to mislead this Hon'ble Court."
4. It is submitted by the learned Senior Counsel for the petitioner - defendant No.2 that the aforesaid admissions made by the petitioner - defendant No.2 are sufficient to decree the suit in favour of the respondent Nos.1 to 4 - plaintiffs as against the petitioner - defendant No.2. In addition thereto, a memo is filed by the petitioner - defendant No.2 in the present writ petition also admitting the claim of the respondent Nos.1 to 4 - plaintiffs in the suit.
5. The said memo is placed on record.
6. In my considered opinion, the cumulative effect of the plaint averments, admissions made in the written statement of the petitioner - defendant No.2 and the memo filed by the petitioner in the present petition is sufficient to come to the conclusion that in the facts and circumstances of the instant case, the Trial Court committed an error in declining to invoke Order 12 Rule 6 CPC and decreeing the suit in favour of the plaintiffs only as against the petitioner - defendant No.2. In this context, it is relevant to state that in the light of the specific submissions made by respondent -7- NC: 2024:KHC:16442 WP No. 26121 of 2023 No.5 - defendant No.1 that he would contest the claim of respondent Nos.1 to 5 - plaintiffs as against him and also denied and disputed the claims and contentions of the petitioner - defendant No.2, the suit would necessarily have to proceed between the plaintiffs and defendant No.1 and by leaving open all other contentions in this regard to be decided by the Trial Court.
7. In the result, I pass the following:
ORDER
(i) Petition is hereby allowed.
(ii) The impugned order dated 14.02.2023 in O.S.No.300/2018 on the file of the Principal Civil Judge and JMFC, Hosakote, is hereby set aside.
(iii) The Trial Court is directed to pass a judgment and decree passed in favour of the respondent Nos.1 to 4 - plaintiffs as against the petitioner - defendant No.2 as prayed for by the respondent Nos.1 to 4 - plaintiffs only as against the petitioner -
defendant No.2 immediately upon the receipt of a copy of this order.
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NC: 2024:KHC:16442 WP No. 26121 of 2023
(iv) The Trial Court is directed to proceed further in the suit between respondent Nos.1 to 4 - plaintiffs and the respondent No.5 - defendant No.1 and pass appropriate orders in accordance with law.
Sd/-
JUDGE DHA List No.: 1 Sl No.: 19