Bangalore District Court
Sri. Muniswamy @ Motappa vs Sri. K. Venkataramana S/O K on 19 July, 2016
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
PRESENT:
SRI. VENKATARAMAN BHAT, B.Sc.., LL.B.
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38)
BANGALORE
DATED: THIS THE 19th DAY OF JULY 2016
OS.NO.476 OF 2003
PLAINTIFF/S SRI. MUNISWAMY @ MOTAPPA
SINCE DEAD BY HIS LRs
a) K. MANJUNATHA S/O
KRISHNAPPA, AGED ABOUT 24
YEARS, RESIDING AT No. 3/118,
MANAVARTHI THOTHA, MASEEDI
ROAD, YELAHANKATA OLD
TOWN, BANGALORE - 560 064.
(By Sri. Ramesh Aditya, Adv.)
Versus
DEFENDANT/S 1. SRI. K. VENKATARAMANA S/O K.
GANGULAPPA, MAJOR, RESIDING
AT MASZID ROAD, YELAHANKA,
BANGALORE - 560 064.
2. SRI. A.S. RAJA, AGE: MAJOR,
RESIDING AT YELAHANKA,
BANGALORE - 560 064.
3. SRI. Y.M. PUTTARAJU S/O
CHANNAPPA, AGED ABOUT 59
YEARS, RESIDNIG AT
YELAHANKA, BANGALORE.
4. SRI. M. KRISHNAPPA S/O
MOTAPPA, AGE: MAJOR,
RESIDING AT YELAHANKA,
BANGALORE.
2 O.S.476 /2003
(Defendant No.1 & 2 by Sri. SGA, Adv.
Defendant No.4 by Sri. DNC, Adv;)
Date of Institution of the suit 18.01.2003
Nature of suit Suit for declaration
Date of commencement of 08.09.2008
recording of evidence.
Date on which judgment was 19.07.2016
pronounced.
Total Duration Years Months Days
13 06 01
XXXVII ACCJ, BANGALORE
3 O.S.476 /2003
JUDGMENT / ORDER ON IA 14 TO 16
The plaintiff filed this suit for declaration to the effect that
the alleged sale deed dated 27.08.1988, bearing document No.
3327/88-89 said to have been executed by one Y.M. Puttaraju in
favour of the defendant No.1 is not binding on the plaintiff and to
cancel the same. It is further prayed to grant consequential relief
of permanent injunction restraining the defendant No.1 from
interfering with the plaintiff possession over the suit schedule
property.
2. The brief facts of the case are as under.
The schedule -A property is shown as property site bearing
Sy. No. 3/7A measuring 20 guntas situated at Yelahanka Town,
Jala Hobli, Bangalore North. The plaint 'B' schedule property is
the part of the plaint 'A' schedule property to the extent of East to
West 40 ft. and North to South 50 ft. with mud house. According
to the original plaintiff (now deceased) was the absolute owner in
possession of the plaint 'A' schedule property acquired under the
registered sale deed dated 23.10.1965 executed by one P.
Nanjappa. On the basis of this sale deed, Katha has been
changed into the name of plaintiff, he used to pay municipal
taxes and other taxes. It is alleged that one Krishnappa who is
the son of original plaintiff had addicted to alcohol and claimed
4 O.S.476 /2003
the suit schedule property as his self acquired property. The said
Krishnappa had executed an unregistered General Power of
Attorney in favour of one Y.M. Puttaraju S/o Chinnappa @
Muniyappa with respect to 'B' schedule property. The said Y.M.
Puttaraju on the basis of the said General Power of Attorney
executed a registered sale deed in favour of defendant No.1 on
27.08.1988. According to the plaintiff it was executed behind his
back and not binding on him. It is further submitted that his
son Krishnappa executed General Power of Attorney in favour of
Y.M. Puttaraju. It is further submitted that the plaintiff is in
peaceful possession and enjoyment of the plaint 'A' and 'B'
schedule properties. When the defendant No.1 started interfering
with the possession of the plaint schedule properties on
14.01.200, the plaintiff was constrained to file this suit.
3. On being summoned, the defendant No.1 put an
appearance before this Court through his advocate and filed
written statement. According to this defendant, Y.M. Puttaraju
as a General Power of Attorney holder of the son of plaintiff duly
executed registered sale deed in his favour with respect to plaint
'B' schedule property. It is submitted that the defendant No.1 is
in possession and enjoyment of the plaint 'B' schedule property.
It is alleged that the plaintiff and his son Krishnappa colluded
each other and filed this false suit. It is submitted that the suit
5 O.S.476 /2003
is barred by limitation. The court fee paid is insufficient. The
suit is undervalued. On these grounds, the defendant No.1 prays
to dismiss the suit with cost.
4. Out of the above pleadings, my predecessor had framed the
following issues and additional issues.
1. Does the plaintiff prove his ownership over the
suit property?
2. Does the plaintiff prove that he was in lawful
possession of the suit property as on the date of
the suit?
3. He has the alleged interference?
4. Does the defendant prove that, plaintiff's title is a
extinguished as pleaded in para 2 of written
statement?
5. Is the suit barred by time as contended by the
defendant?
6. What decree or order?
ADDITIONAL ISSUES:
1. Does the plaintiff prove that he is the absolute
owner in possession of the plaint B schedule
property?
2. Does the plaintiff prove that he is entitled for
the relief sought in the plaint?
5. During the pendency of the suit the plaint got amended
and defendant No.1 filed additional written statement. During the
course of trial the General Power of Attorney holder of the original
6 O.S.476 /2003
plaintiff was examined as PW 1 and Ex.P1 to P32 got marked.
PWs 2 and 3 are the witnesses examined on behalf of the
plaintiff.
6. The defendant No.1 was examined as DW 1 and Ex.D1 to
D26 got marked.
7. On the perusal of the order sheet, it discloses that the
advocate for the plaintiff submitted the notes of written
argument. After hearing the arguments of advocate for the
defendant No.1, this court posted the case for judgment once.
Thereafter the original plaintiff was reported to be dead. One K.
Manjunatha who is said to be the grand son of original plaintiff
filed impleading application under Order I Rule 10 (2) of CPC to
come on record in the place of original plaintiff by virtue of the
alleged Will dated 11.09.2002 executed by original plaintiff. This
court after hearing both the advocate dismissed the said
application with a direction to file LR application under Order
XXII Rule 3 of CPC. Thereafter the said K. Manjunath filed IA-14
under Section 5 of Limitation Act to condone the delay, if any in
filing the LR application, IA-15 under Order XXII rule 9 of CPC to
set aside the order of abatement, if any and IA-16 is filed under
Order XXII Rule 3 of CPC to come on record as legal
representative of the original plaintiff.
7 O.S.476 /2003
8. The defendant No.1 filed objections. However, this court
allowed the said applications. Being aggrieved against the said
order the defendant No.1 had preferred Writ Petition No. 57419 -
57421 of 2013 (GM-CPC) before the Hon'ble High Court of
Karnataka, Bangalore. The Hon'ble High Court of Karnataka by
its order dated 23.04.2014 quashed the order of this court on IA-
14 to 16 and directed to determine the question as to who is the
legal representative of the deceased Muniswamy after recording
the evidence of the parties as per Order XXII rule 5 of CPC.
9. This court provided fullest opportunity to the applicant to
record evidence under Order 22 Rule 5 of CPC. However, the
applicant who is said to be legal representative of the plaintiff did
not enter into the witness box. Even advocate for the applicant
remained absent since long time. This court heard the
submissions of the advocate for the defendant No.1.
ORDER ON IA-14 TO 16
10. Aa already stated IA-14 is under Section 5 of Limitation
Act to condone the delay, if any in filing the LR application, IA-15
is filed under Order XXII rule 9 of CPC to set aside the order of
abatement, if any and IA-16 is filed under Order XXII Rule 3 of
CPC to come on record as legal representative of the original
plaintiff.
8 O.S.476 /2003
11. It is more relevant at this stage to extract the relevant para
of the order passed by the Hon'ble High Court of Karnataka in
W.P. No.57419 to 57421 of 2013 (GM-CPC) dated 23.04.2014. It
is extracted as under.
"Only after determination of the question, as to whether the
respondent is the legal representative of deceased
Muniswamy, the respondent may come on record, if the
trial court decides in his favour. In view of the same, the
impugned order liable to be quashed. Accordingly, the
same stands quashed. The court below is directed to
determine the question as to who is the legal representative
of deceased Muniswamy after recording the evidence of the
parties as per Order 22 Rule 5 of CPC."
12. There is a specific direction to determine the question as to
who is the legal representative of the deceased Muniswamy after
recording the evidence of the parties, as per order 22 Rule 5 of
CPC. It is not in dispute that the original plaintiff Muniswamy
died on 03.08.2011. The applicant Manjunatha claims right over
the plaint schedule property by virtue of the Will executed by the
original plaintiff dated 11.09.2002. The nature of enquiry under
Order 22 Rule 5 CPC is summary in nature. When the applicant
Manjunath claims his right over the suit schedule property by
virtue of the registered Will dated 11.09.2002, it is necessary to
produce the so called Will during the course of evidence. In spite
of sufficient opportunity the applicant did not adduce any
evidence on this Will nor Will has been tendered in evidence. The
defendant No.1 did not adduce any evidence. In other words,
9 O.S.476 /2003
though there is specific direction in the writ petition to record the
evidence under Order 22 Rule 5 of CPC none of the parties
adduced any evidence. It can be noticed that at one stage, this
applicant had filed application under Order 10 Rule 10(2) of CPC
to come on record in the place of original plaintiff. This court
dismissed that application and reserved liberty to file application
under Order 22 Rule 3 CPC. However, the legatee / applicant
Manjunath did not adduced any evidence. No documents are
produced on his side. In other words, the alleged Will dated
11.09.2002 is not proved formally. When the applicant is not
able to prove that by virtue of the Will he represented the estabe
of the deceased Muniswamy, it cannot be held that he is a legal
representative of the deceased Muniswamy. It can be noticed that
the defendant No.3 is none other than son of the deceased
Muniswamy. Of course, he is a natural heir of the deceased
Muniswamy. But there is conflict of interest between the
defendant No.3 and original plaintiff. The original plaintiff being
the father of the defendant No.3 has questioned the execution of
the General Power of Attorney in favour of one Y.M. Puttaraju
and alleged sale transaction. There is difference between the
legal heir and the legal representation. Legal representative
represents the estate of the deceased, so as to proceed with the
case, under Order 22 Rule 5 of CPC. There is no final decision
regarding heirship of the deceased. Under these circumstances,
10 O.S.476 /2003
though the defendant No.3 being the son of the deceased
Muniswamy, he cannot be considered as legal representative in
view of the conflict of interest between these persons. That being
the position of law, in case on hand there is no legal
representative of the deceased Muniswamy. In other words, right
to sue does not survive to the applicant as legal representative.
In other words, the suit stands abated. Accordingly, it is held
that the applicant failed to prove that he is legal representative of
the deceased Muniswamy.
JUDGMENT
ISSUES AND ADDITIONAL ISSUES:
13. A specific finding has been given to the effect that there is no legal representative of the deceased Muniswamy. The applicant who claims a right over the suit schedule property by virtue of the Will dated 11.09.2002 did not participate in the enquiry held under Order 22 Rule 5 CPC. The defendant No.3 being the son of the deceased plaintiff did not participate in the said proceedings. Of course, the parties have adduced evidence and got marked number of documents. During the course of examination of DW 1 has duly admitted to the effect that he has already sold 'B' schedule property in favour of one A.S. Raja, who is defendant No.2 in this case. But the defendant No.2 did not file any written statement. It is pertinent to note that there is no legal representative to represent the estate of the deceased 11 O.S.476 /2003 Muniswamy. It is settled principle of law that any decree against the dead person amounts to nullity. In the case on hand, original plaintiff is no more. There is no legal representative of the deceased Muniswamy. If any finding has been given on the above said issues, it amounts to deciding the dispute on merits.
In other words, there is no scope to decide the case against any dead person. Under these circumstances, this court is not going to decide the dispute on merits. That being the position, question of giving finding on the issues and additional issues does not arise.
14. In the result, I proceed to pass the following.
ORDER Suit is dismissed as right to sue does not survive. No order, as to cost.
(Dictated to the Judgment Writer, typed by him, corrected and then pronounced by me in open court, this the 19TH DAY OF JULY 2016) (VENKATARAMAN BHAT) XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE 12 O.S.476 /2003 ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 Sri.C. Paparaju PW2 Sri. Venkatesh PW3 Sri.Purushotham
Documents marked on behalf of the plaintiff/s:
Ex.P1 Special Power of Attorney Ex.P2 Sale deed Ex.P3 RTC extract Ex.P4&5 Tax paid receipts Ex.P6 Patta book Ex.P7 & 8 Certified copy of RTC Ex.P9 RTC Ex.P10&11 RTC Ex.P12 Certified copy of sale deed Ex.P13 Applications Ex.P14 to 19 Tax paid receipts Ex.P20 Photograph Ex.P20A Negative Ex.P21 to 25 RTC Ex.P26 Form II Ex.P27&28 Encumbrance Certificate Ex.P29to32 Survey records List of witnesses examined on behalf of the Defendant/s:
DW1 Sri. Venkataramana Documents marked on behalf of the Defendant/s:
Ex.D1 General Power of Attorney Ex.D2 Sale deed Ex.D3 Endorsement Ex.D4 Cash Receipt Ex.D5 Licence Ex.D6 Approved plan Ex.D7 Another approved plan Ex.D8 Tax paid receipt Ex.D9&10 Encumbrance certificate 13 O.S.476 /2003 Ex.D11to16 Tax paid receipts Ex.D17to22 Self Assessment Tax paid receipt Ex.D23&24 Tax paid receipt Ex.D25 Endorsement Ex.D26 Endorsement.
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE.14 O.S.476 /2003
Judgment passed and pronounced in the open court (vide separate judgment). The operation portion of the order reads thus -
ORDER Suit is dismissed as right to sue does not survive. No order, as to cost.
XXXVII ACCJ, (CCH-38)