Karnataka High Court
Smt Shashikala vs Smt K S Sujaya on 3 March, 2023
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RFA No. 144 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR FIRST APPEAL NO. 144 OF 2017 (DEC/INJ)
BETWEEN:
SMT. SHASHIKALA
W/O SRI. SOMASHEKAR,
AGED ABOUT 44 YEARS,
R/AT NO. B-16,
JUMMA MASJID ROAD,
BENGALURU - 560 002
...APPELLANT
(BY SRI: T. SESHAGIRI RAO, ADVOCATE)
AND:
1. SMT. K.S. SUJAYA
W/O M. NANJUNDAPPA
AGED ABOUT 50 YEARS
RESIDING AT NO 86, MALATHAHALLI,
YESHWANTHAPURA HOBLI,
BENGALURU NORTH TALUK
Digitally signed by 2. SRI. V. RANGA MAREGOWDA,
SUNITHA
GANGARAJU S/O. LATE VENKATAPPA,
Location: High AGED ABOUT 55 YEARS,
Court Of Karnataka RESIDING AT NO 290, III 'A' CROSS,
II BLOCK, III STAGE,
BASAVESHWARANAGAR,
BENGALURU - 560 079
3. SRI. N.R. NAGARAJ,
S/O. LATE. K. RAMEGOWDA,
AGED ABOUT 56 YEARS,
RESIDING AT NO 6,
KATHRIGUPPA MAIN ROAD,
BSK III STAGE,
BENGALURU - 560 085.
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RFA No. 144 of 2017
4. SMT. M. SHASHIKALA,
W/O. NARASIMHAIAH,
AGED ABOUT 52 YEARS,
RESIDING AT NO 431/5,
VITH CROSS, PRASHANTH NAGAR,
BENGALURU - 560 059.
...RESPONDENTS
( R1 & R4 ARE SERVED
V/O DATED 03.03.2021 SERVICE OF NOTICE
TO R2 AND R3 ARE HELD SUFFICIENT.)
THIS R.F.A. IS FILED UNDER ORDER 41 RULE 1 R/W SEC.96
OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 24.10.2016
PASSED IN OS NO.8123/2004 ON THE FILE OF THE XVIII ADDL. CITY
CIVIL JUDGE., BENGALURU CITY (CCH NO.10) DISMISSING THE
SUIT FOR DECLARATION AND PERPETUAL INJUNCTION.
THIS R.F.A., COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff is before this Court being aggrieved by the judgment and decree dated 24.10.2016 passed in O.S.No.8123/2004 on the file of the learned XVIII Additional City Civil and Sessions Judge (CCH-10), Bengaluru, (hereinafter referred to as 'the Trial Court' for brevity) dismissing the suit filed for declaration and permanent injunction.
2. For the sake of convenience, the parties are referred to as per their status and rank before the Trial Court. -3- RFA No. 144 of 2017
3. Brief facts of the case are that, the plaintiff filed the suit against defendant Nos.1 to 4 seeking declaration that she is the absolute owner in peaceful possession and enjoyment of the suit schedule property and for permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the property and also for mesne profits. It is contended by the plaintiff that she is the absolute owner in lawful possession of the suit schedule property i.e., the property bearing Site No.22, Khata No.1878 with assessment No.45/01, khanishmari No.1987/2022 measuring East to West: 50 feet, North to South: 30 feet, situated at Mallathalli, Yeshwanthpura Hobli, Bangalore North Taluk and bounded on the East by: 25 feet road, West by: Private property, North by: Site No.23 and South by: Site No.21.
4. It is contended that one Patel M Rudrappa inherited the land bearing survey No.45 of Mallathahalli village measuring 2 acres 03 guntas from his father under the Will dated 31.05.1937. The said land was mutated as survey No.45/01, which was in between survey Nos.45/02 and 45/03. He entered into an agreement for sale with K.M Krishnappa and -4- RFA No. 144 of 2017 L. Chandra on 5.2.1983 agreeing to sell one acre of land, on the western side. The intended purchasers developed the land and formed the layout. Thereafter, got executed the sale deeds in respect of various sites in the layout, through Patel M Rudrappa in favour of different persons. The plaintiff in O.S.8123/2004 purchased the suit schedule property i.e., site No.22 from Patel M Rudrappa under the registered sale deed dated 22.10.1994 produced as Ex.P.1. Thus, Patel M Rudrappa lost his right, title and interest over the land bearing survey No.45/01 during 1993. It is contended that, defendant No.1 being the daughter-in-law of Patel M Rudrappa and her children after the death of Patel M Rudrappa and his son M.R.Nanjundaiah, concocted revenue documents in collusion with revenue officials and got mutated the land in survey No.45/01 measuring 2 acres 03 guntas on the basis of the revenue entry IHC/13 of 1996-97 even though no land was available with Patel M Rudrappa to be inherited by them. The defendants have manipulated the documents by referring to the land as survey No.45/04 of Mallathahalli village. On the basis of fabricated documents, defendants sold one acre of land in favour of defendant No.3 vide sale deed dated 15.09.2003. -5- RFA No. 144 of 2017 M.R.Nanjundaiah the son of Patel M Rudrappa, husband of defendant No.1 is a witness to the sale deed executed in favour of the plaintiff. Under such circumstances defendants could not have claimed any right over the schedule property.
5. It is contended that defendant Nos.1 to 3 started interfering with peaceful possession and enjoyment of the suit schedule property by the plaintiff when they started construction of the house. The plaintiff along with other persons who have purchased similar sites from Patel M Rudrappa, filed O.S No.2820/2004 against Smt. Lakshmamma w/o Patel M Rudrappa seeking relief of declaration and for injunction. Defendant no.3 therein had filed the suit O.S No.9073/2003 against the plaintiff and others. The plaintiff and others who were defendants in the said suit have filed their written statement denying the right of the plaintiff in the said suit. In the meantime, permission was sought to withdraw the suit O.S No.2820/2004. Accordingly, the same was ordered to be returned with liberty to the plaintiff to file fresh suit against the defendants as per order dated 20.03.2010. The cause of action for the present suit arose on 30.03.2004 when the defendants tried to interfere with the possession and enjoyment of the -6- RFA No. 144 of 2017 schedule property and therefore the plaintiff filed the suit for the relief of declaration and Permanent Injunction.
6. Defendant No.1 has been placed exparte. Defendant Nos.2, 3 and 4 have filed their separate written statements and defendant Nos.2 and 3 have also filed their additional written statement denying the contentions taken by the plaintiff and contended that defendant No.4 after purchasing site No.22 got her name entered in the municipal records. It is further contended that suit property of the plaintiff comes within survey No.45/1 and not survey No.45/4 and the plaintiff is also aware that defendant No.4 has purchased site No.22. It is further contended that the description of the suit property is incorrect and the suit is barred by limitation as well as for non- joinder of necessary parties. It is further contended that the Court fee paid is incorrect. The alleged interference is also denied. On all these grounds, defendant Nos.2 to 4 have sought for dismissal of the suit with cost.
7. On the basis of these pleadings, the Trial Court framed the following issues as under:
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ISSUES "1. Whether the plaintiff proves that the existence of the site as described in the plaint schedule?
2. Whether the plaintiff proves that he is the owner in possession of the disputed area as pleaded?
3. Whether the 3rd proves that he is the owner in possession of the disputed area as contended?
(Deleted vide order dated 17.02.2010)
4. Whether the plaintiff is entitled for the relief of perpetual injunction prayed?
Addl. issues framed on 14.09.2015
1. Whether the plaintiff proves that she is the absolute owner of the suit schedule property acquired under registered sale deed dated 20.10.1994?
2. Whether the plaintiff proves the alleged interference of the defendants over suit schedule property?
3. Whether the suit is barred by limitation?
4. Whether the plaintiff is entitled for decree of declaration as prayed?
Addl. issues framed on 26.10.2015
1. Whether the suit is bad for non-joinder of necessary parties and cancellation of sale deeds?
2. Whether the court fee paid is insufficient for the relief sought?
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8. The plaintiff got herself examined as PW.1 and examined two witnesses as PWs.2 and 3 and got marked Exs.P.1 to P.45 in support of her contention. Defendant No.3 got examined himself as DW.1 and defendant No.4 got examined her Special Power of Attorney holder as DW.2 and got marked documents Exs.D.1 to D.147 in support of their defence. The Trial Court after taking into consideration all these materials on record, answered issues Nos.1, 2, 4 in the 'Negative' and Additional Issue Nos.1, 2, 3, 4, dated 14.09.2015 in the 'Negative' and Additional Issue Nos.1 and 2 dated 26.10.2015 in the 'Negative' and dismissed the suit of the plaintiff with cost.
9. Being aggrieved by the same, the plaintiff has preferred this appeal.
10. Learned counsel for the appellant has filed I.A Nos.2/2017 and 3/2017 under Order XLI Rule 27 read with 151 of CPC seeking permission to produce 54 additional documents as additional evidence in support of her claim. -9- RFA No. 144 of 2017
11. Heard Sri T. Seshagiri Rao, learned counsel for the appellant and Perused the materials on record including the Trial Court records.
12. Learned counsel for the appellant submitted that Patel M Rudrappa acquired right over 2 acre 03 guntas of land in survey No.45/01 of Mallathahalli as the same was bequeathed in his favour. Said Patel M Rudrappa entered into an agreement with K.M Krishnappa and L.Chandra agreeing to sell one acre of land in survey No.45/01 (western portion) and agreeing to execute the sale deed in their favour or in favour of their nominees. The said K.M Krishnappa and Chandra have formed the layout with several sites. The schedule property is one amongst the sites formed in the said layout, which was sold in favour of the plaintiff by Patel M Rudrappa under the registered sale deed dated 22-10-1994. On 12.10.1996 Patel M Rudrappa died leaving behind his son Nanjundappa. On 03.07.1997, Nanjundappa also died leaving behind him his wife Sujaya and children Pradeep Kumar and Mamatha. Since Patel M.Rudrappa had already sold all the sites in the layout, he had not left behind any property in survey No.45/1 of Mallathahalli.
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RFA No. 144 of 2017
13. Learned counsel further submitted that defendant No.1 was successful in getting IHC/13-1996-97 reporting the death of her father-in-law Patel M Rudrappa and husband Nanjundappa, in respect of 2 acre 03 guntas of land in survey No.45/01 of Mallathahalli and also managed to execute the sale deed in respect of one acre of land in survey No.45/01 referring to it as survey No.45/04, in favour of defendant No.3 on 15.09.2003. Defendant No.3 got the order of conversion of survey No.45/04 measuring one acre of land, even though there was no such land bearing survey No.45/04 available to be sold in his favour. Defendant No.3 sold several sites referring it to be in existence in survey No.45/04 in favour of defendant Nos.1 and 2 on 17.03.2004.
14. Learned counsel further submitted that, in the meantime, plaintiff and others have filed the suit O.S No.2820/2004 against defendant no.3 and others and obtained an order of status-quo. Defendant No.3 had also filed O.S No.9073/2003 suppressing the material facts that he obtained the order of conversion during the pendency of the suit and alienated several sites in favour of defendant Nos.1 and 2 on 17.03.2004. Even subsequently he sold the remaining sites in
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RFA No. 144 of 2017favour of defendant No.1 under different sale deeds dated 18.10.2007. In view of the subsequent developments and concoction of revenue records by the defendants, O.S No. 2820/2004 was sought to be withdrawn with liberty to file fresh suit. It is thereafter the plaintiff filed the present suit against the defendants.
15. Learned counsel further submitted that the Deputy Director of Land Records (for short 'DDLR') considered the objections raised by the plaintiffs and others regarding phodi of survey Nos.45/01, 45/04 and 45/05 and registered a suo-motto proceedings as per order dated 28.11.2012 and set aside the said phodi and durasth. Therefore, the subject matter of the sale deeds relied on by the defendants are no more in existence.
16. Learned counsel also submitted that the Deputy Commissioner (for short 'D.C'), Bengaluru District also held an enquiry regarding the order of conversion obtained by defendant No.3 and cancelled the said conversion order vide order dated 05.02.2004 . Therefore, all the sale deeds executed
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RFA No. 144 of 2017on the basis of such order are also not having any legal sanctity.
17. Learned counsel submitted that the trial Court has not taken into consideration any of these facts and circumstances, but proceeded to dismiss the suit. The trial Court held that the plaintiff is not successful in identifying the schedule property. Therefore, I.A No.2/2017 and I.A No.3/2017 filed for production of additional documents would help the Court in deciding the matter in accordance with law. Accordingly, he prays for allowing both the applications and also the appeal in the interest of justice.
18. Per Contra, learned counsel for the respondents Sri. Ravishankar G.S., opposing the appeal and the applications submitted that even though plaintiff has approached the trial Court with specific contentions regarding the schedule property, she has failed to establish her contentions. Even though, the relief of declaration and Permanent Injunction was sought, the plaintiff is not successful in identifying the schedule property. The plaintiff also failed in her attempt to prove her contention
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RFA No. 144 of 2017that the defendants have concocted the revenue records in respect of the schedule property.
19. Learned counsel further submitted that one acre of land in survey No.45/04 was got converted by defendant No.3 and he formed the layout with several sites in it. He sold those sites in favour of defendant Nos.1 and 2 who in turn sold the sites in favour of other defendants under 11 different registered sale deeds. Under such circumstances, the plaintiff is not entitled for any relief. No grounds are made out to allow the applications filed by the appellant. Therefore, he prays for dismissal of both the applications and appeal in the interest of justice.
20. In view of the rival contentions urged by the learned counsel for both the parties to the lis, the following points would arise for my consideration in both the appeals:
"1. Whether I.A No.2/2017 under Order LXI Rule 27 read with 151 of CPC., is required to be allowed?
2. Whether I.A No.3/2017 under Order LXI Rule 27 read with 151 of CPC., is required to be allowed?
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3. Whether the trial Court is right in dismissing the suit of the plaintiffs without taking into consideration the contentions raised therein?"
21. My answer to the above point Nos.1 and 2 in the 'affirmative' and point No.3 in the 'negative' for the following;
REASONS
22. It is the specific contention of the plaintiff that, Patel M Rudrappa who was the owner of survey No.45/01 measuring one acre of land situated at Mallathahalli got several sites formed and sold different sites in favour of different persons under various registered sale deeds. Plaintiff purchased schedule property under the sale deed dated 22.10.1994 where the property is described as site No.22, with assessment No.45/01, khata No.1878 and kanishumari No.1987/22. Even though there is no reference to survey No.45/01, it is the contention of the learned counsel for the plaintiff that deliberately it is shown as assessment No.45/01 to enable Patel M Rudrappa to execute the sale deed as otherwise, such sale deed could not have been registered as the sites formed in the layout was not after getting necessary permission and order of
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RFA No. 144 of 2017conversion. However, Patel M Rudrappa had sold the entire one acre of land under different sale deeds and he was not having any right, title or interest over any piece of land in survey No.45/1 of Mallathahalli. Therefore, defendants who are claiming under Patel M Rudrappa have not acquired any title over any piece of land in survey No.45/01. Taking advantage of the situation that there was no order of conversion and no permission to form layout and sites which were sold by Patel M Rudrappa, defendants said to have managed to concoct the documents got IHC/13-1996-97 and on the basis of the same got phodi and durasthi to the effect that survey no.45/01 renumbered as 45/04 and on the basis of these concocted documents sold one acre of land in survey No.45/04 in favour of defendant No.3 who in turn got the conversion order of one acre of land in survey No.45/04, formed sites and sold the same in favour of defendant No.1. In the meantime, the phodi and durasthi renumbering survey Nos.45/01 as 45/04 and conversion of one acre of land in survey No.45/04 were cancelled by the DDLR and the D.C concerned.
23. In the backdrop of these specific contentions taken by the plaintiff, the materials that are placed before the Court
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RFA No. 144 of 2017are to be taken into consideration. The plaintiff is relying on Ex.P23 and 24 to substantiate his contention regarding the order passed by the D.C and the DDLR to set aside phodi durasthi and conversion of the land in question. This fact would lead to very serious consequence as the defendant No.7 being the contesting party is claiming right under the said phodi and durasthi and conversion of land to claim ownership over the large extent of land including the schedule property, in survey No.45/04 of Mallathahalli. When such orders were cancelled or set aside, the very basis for the claim of the defendants will be under challenge.
24. The plaintiff has filed applications I.A Nos.2/2017 and 3/2017 under Order LXI Rule 27 of CPC., to produce as many as 54 documents as additional documents as additional evidence produced along with the applications. These additional documents are certified copies of the record of rights, judgment and decrees in various suits, complaints, sale deeds etc. Prima facie many of these documents are public documents and may not be under serious dispute.
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RFA No. 144 of 2017
25. The contention of the learned counsel for the appellant that the appellant was under the impression that the documents that are relied on before the trial Court were sufficient to prove her contention, is prima facie a justifiable ground for non production of the additional documents before the trial Court under the facts and circumstances of the case. At this stage, it cannot be concluded that the additional documents were deliberately suppressed or those documents were concocted by the plaintiff. Even though there is a bar for production of additional evidence before the appellate Court as per Rule 27 of Order 41 of CPC, sub rule (1) provides exceptions to the general rule to enable the appellate Court to receive the additional evidence. From the facts and circumstances of the case, the additional documents that are produced by the plaintiff will definitely enable the Court to pronounce the judgment after determining the rights of the parties.
26. There is rival claim between the plaintiff and defendants and serious allegations are made against the defendants regarding commission of fraud, misrepresentation, concoction of documents and even it is stated that criminal
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RFA No. 144 of 2017complaint was also filed against some of the defendants. Considering all these facts and circumstances, I am of the opinion that production of additional documents by the plaintiff would enable the Court to have the holistic view of the developments in arriving at a conclusion and appreciating the contentions of the parties.
27. The discussion held above disclose that all the relevant documents were not produced before the trial Court to enable it to arrive at a just conclusion while disposing of the matter. Therefore, I am of the opinion that the impugned judgment and decree passed by the trial Court is liable to be set aside, while allowing both the applications filed by the appellant.
28. Since the additional documents are to be admitted in evidence for which adducing additional oral evidence by the plaintiff is very much necessary and at the same time, an opportunity is to be given to the defendants to lead rebuttal evidence, in case of necessity, definitely it would amount to re- trial and under such circumstances the matter is required to be remanded back to the trial Court under Order 41 Rule 23 (a) of
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RFA No. 144 of 2017CPC. Hence, I answer the point Nos.1 and 2 in the 'affirmative' and point No.3 in the 'negative'. Accordingly, I proceed to pass the following:
ORDER The appeal is allowed.
The judgment and decree dated 24.10.2016 passed in O.S.No.8123/2004 on the file of the learned XVIII Additional City Civil and Sessions Judge (CCH-10), Bengaluru is set aside.
The applications I.A No.2/2017 and I.A No.3/2017 filed under Order XLI Rule 27 of CPC are allowed. The additional documents produced by the plaintiff is permitted to be produced.
In the result, the matter is remanded back to the trial Court with a direction to hold re-trial by affording a reasonable opportunity to both the parties to lead their evidence in the interest of justice.
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Since the suit of the plaintiff was of the year 2004, both the parties are directed to appear before the trial Court on 04.04.2023 without waiting for fresh summons and they are also directed to co-operate with the trial Court in early disposal of the matter on merits. If any party to the suit seeks adjournment unreasonably, the trial Court will be at liberty to put them on terms as found just and proper and to dispose of the suit within six months from the date fixed for appearance of the parties.
The Registry is directed to return the trial Court records along with the applications I.A No.2/2017 and I.A No.3/2017 filed under Order XLI Rule 27 of CPC and the additional documents produced there with.
Under the peculiar facts and circumstances of the case, parties are directed to bear their own costs.
Sd/-
JUDGE SKS