Karnataka High Court
D. Laxman vs M.V. Shanth Kumar on 1 August, 2024
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NC: 2024:KHC:30777
RSA No. 1018 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.1018 OF 2015 (POS)
BETWEEN:
D. LAXMAN
S/O NARAPPA
AGED ABOUT 58 YEARS
RESIDING AT NO. 952, 1ST CROSS
SHEKHARAPPA NAGAR
DAVANAGERE - 577 002.
...APPELLANT
(BY SRI. C PRAKASH, ADVOCATE)
AND:
M.V. SHANTH KUMAR
S/O C V VENKATACHALLAIAH
Digitally AGED ABOUT 61 YEARS
signed by R BUSINESSMAN, R/O 1ST CROSS
DEEPA SHEKARAPPA NAGAR
Location: DAVANAGERE - 577 002
HIGH ...RESPONDENT
COURT OF (BY SRI. PRASANNA B R, ADVOCATE)
KARNATAKA
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 05.08.2014 PASSED IN RA
NO. 31/2012 ON THE FILE OF THE III ADDL. SENIOR CIVIL
JUDGE, DAVANAGERE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 04.07.2012
PASSED IN OS NO.52/2007 ON THE FILE OF THE PRL. CIVIL
JUDGE, DAVANAGERE.
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NC: 2024:KHC:30777
RSA No. 1018 of 2015
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed challenging the judgment and decree dated 05.08.2014 passed in R.A.No.31/2012 by the Court of III Additional Senior Civil Judge, Davanagere, confirming the judgment and decree dated 04.07.2012 passed in O.S.No.52/2007 by the Court of Principal Civil Judge(Jr. Dvn.) at Davanagere.
2. The parties are referred to as per their ranking before the trial Court. The appellant is the plaintiff and respondent is the defendant. The plaintiff filed a suit for cancellation of the decree passed in O.S.No.213/2003 on the file of Additional Civil Judge (Jr. Dn.), Davangere and sought for mandatory injunction directing the defendant to handover the possession of the suit schedule property to the plaintiff and for permanent injunction. -3-
NC: 2024:KHC:30777 RSA No. 1018 of 2015
3. Brief facts of the case are as under:
It is the case of the plaintiff that, the suit schedule property bearing D.No.952 is situated at Shekarappa Nagar, 1st Cross, Davanagere, which is constituting of RCC Building measuring 25 X 50 ft. It is contended that, the plaintiff is in possession of the suit schedule property. It is contended that the defendant filed a suit in O.S.No.213/2003 against the plaintiff on the file of Additional Civil Judge (Jr.Dn.), Davanagere in respect of D.No.969/3 for the relief of ejectment. The plaintiff was appeared and filed the written statement denying the averments made in the said plaint. The present plaintiff has not seriously contested in the said suit, since the property number of the suit schedule property was different. The said suit was came to be decreed and also in the execution proceedings, the executing Court issued warrant for delivery of possession. The present plaintiff had delivered the vacant possession of the property bearing D.No.952. The defendant by misrepresentation and by concealing the material true facts, obtained decree -4- NC: 2024:KHC:30777 RSA No. 1018 of 2015 by mentioning wrong boundaries and taken the possession of the plaintiff's property bearing D.No.952. Hence, cause of action arose for the plaintiff to file a suit for declaration.
4. The defendant filed the written statement denying averments made in the plaint. It is contended that, the property bearing D.Nos.969/3 and 952 are totally different properties and situated at different places. It is contended that, the defendant had purchased the property bearing D.No.969/3 from its erstwhile owner through the registered sale deed and constructed houses. It is contended that the plaintiff is a close friend of the defendant so on his demand one portion of the house has been let out on monthly rental basis at the rate of Rs.400/- p.m and remaining portion of the house has been let out to different persons. When the defendant is in a need of property bearing No.969/3 for his occupation, the plaintiff was denied to vacant and handover the possession of the property. Hence, the defendant filed a suit in O.S.No.213/2003 for ejectment. In the said suit, the -5- NC: 2024:KHC:30777 RSA No. 1018 of 2015 present plaintiff appeared and filed the written statement. The learned Civil Court after full-fledged trial, decreed the suit of the defendant herein and later on the defendant filed execution petition and taken the possession of the suit schedule property by due process of law. Hence, prayed to dismiss the suit.
5. The trial Court, on the basis of the pleadings of the parties, framed the issues and additional issues.
6. The plaintiff in order to substantiate his case, examined himself as PW.1 and examined two witness as PW.2 and PW.3 and got marked 06 documents as Exs.P1 to P6. The defendant examined himself as DW.1 and examined one witness as DW.2 and got marked 06 documents as Exs.D1 to D6. The Court Commissioner was appointed and was examined as CW.1 and got marked 02 documents as Exs.C1 and C2. The defendant has also sought for counter claim. The trial Court after recording the evidence of the parties, hearing on both the sides and -6- NC: 2024:KHC:30777 RSA No. 1018 of 2015 on assessment of oral and documentary evidence, answered issue Nos.1 and 3 in the negative and issue No.2 and additional No.1 in the affirmative and issue No.4 as per the final order. The suit of the plaintiff and also the counter claim made by the defendant was dismissed. The plaintiff aggrieved by the judgment and decree passed in O.S.No.52/2007 preferred an appeal in R.A.No.31/2012 on the file III Additional Senior Civil Judge, Davangere.
7. The First Appellate Court, after hearing the parties, framed the points for consideration.
8. The first appellate Court, after re-assessment of the oral and documentary evidence, answered point Nos.1 to 4 in the negative and point No.5 as per the final order. The appeal was dismissed vide judgment dated 05.08.2014 confirming the judgment and decree passed by the trial Court.
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NC: 2024:KHC:30777 RSA No. 1018 of 2015
9. The plaintiff aggrieved by the impugned judgments, has filed this regular second appeal.
10. Heard the learned counsel for the plaintiff.
11. Learned counsel for the plaintiff submits that the subject matter of the suit property in O.S.No.213/2003 is different from one involved in the present suit. The courts below have committed an error in dismissing the suit on the ground that the present plaintiff has appeared and filed the written statement in the earlier suit. He submits that the said decree passed in O.S.No.213/2003 is an exparte decree. He also submits that the defendant by playing a fraud, obtained the decree in O.S.No.213/2003 against the plaintiff. Hence, on these grounds, he prays to allow the appeal.
12. Heard and perused the records and considered the submissions of the learned counsel for the plaintiff.
13. Admittedly, the defendant filed a suit in O.S.No.213/2003 against the present plaintiff for -8- NC: 2024:KHC:30777 RSA No. 1018 of 2015 ejectment in respect of door No.969/3 and obtained the decree against the present plaintiff in the said suit. In the said suit, the plaintiff appeared through the counsel and filed the written statement and the trial Court decreed the suit of the defendant vide judgment dated 31.03.2005. The plaintiff has produced the judgment and decree passed in O.S.No.213/2003 i.e., Exs.P3 and P4. Subsequently, the defendant filed the execution petition and the executing Court has issued a warrant for delivery of possession. The defendant has taken the possession of the suit schedule property by due process of law. It is the case of the plaintiff that the defendant, by playing a fraud on the plaintiff, had obtained a decree in O.S.No.213/2003. The plaintiff ought to have challenged the judgment and decree passed in O.S.No.213/2003 by filing an appeal. Instead of filing the appeal, has filed the present suit challenging the judgment and decree passed in O.S.No.213/2003. Hence, the suit filed by the plaintiff is not maintainable. The trial Court was justified in dismissing the suit challenging the decree passed in -9- NC: 2024:KHC:30777 RSA No. 1018 of 2015 O.S.No.213/2003, as not maintainable. The first Appellate Court on re-appreciation of material evidence on record was justified in dismissing the appeal. I do not find any substantial question of that arises for consideration in this appeal.
14. In view of the aforesaid facts and circumstances, I proceed to pass the following:
ORDER The appeal is dismissed The judgments and decree passed by the Courts below are hereby confirmed. No order as to the costs.
In view of dismissal of the appeal, pending I.As., if any, do not survive for consideration.
Sd/-
(ASHOK S.KINAGI) JUDGE SSB