Karnataka High Court
Sri P V Kameshkumar vs Thoti Muniyappa on 27 August, 2019
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF AUGUST, 2019
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
REVIEW PETITION No.115 OF 2013
IN R.F.A. No.776 OF 2008
BETWEEN:
Sri. P.V.Kameshkumar
Aged about 62 years,
S/o. Sri. P.Jayaram,
No.191, Castle Street,
Ashoknagar, Bangalore-25.
...PETITIONER
(By Sri. P.V.Ramesh Kumar, Advocate)
AND:
1. Thoti Muniyappa
S/o. Venkatappa,
Aged about 77 years,
Agriculturist,
Residing at Roopena Agrahara,
Madiwal P.O.
Bangalore South Taluk,
Bangalore.
2. Thoppaiah
S/o. Shown as Thoopai Veeran,
Aged about 53 years,
Agriculturist,
R/o. Roopena Agrahara,
(Begur Hobli)
R.P. NO.115/2013 in
R.F.A.No.776/2008
2
Bangalore South,
Bangalore.
3. Shekar
(S/o. details not known)
Claiming to be in
S.No.56/2 & 3
Bommanahalli,
Bangalore South Taluk,
Bangalore-68.
...RESPONDENTS
(By Sri. H.S.Somanath, Advocate for R1;
Petition dismissed against R2 and R3
vide order dated 30.06.2016)
This Review Petition is filed under Order 47 Rule 1 of
CPC, praying to review the order passed by this Court
dated 19.02.2013 in RFA No.776/2008.
This Review Petition coming on for Admission along
with I.A. Nos.1/13 and 2/13 this day, the Court made the
following:-
ORDER
Learned counsel from both side present. Heard both side on the matter.
2. The present review petition is filed by the appellant in RFA 776/2019 who in turn was the plaintiff in the O.S. No.10771/1987 which was filed by him for the relief of permanent injunction. It appears that the suit also R.P. NO.115/2013 in R.F.A.No.776/2008 3 includes the prayer for mandatory injunction in the counter claim filed by the defendant No.1 therein. The Trial Court by its Judgment and Decree dated 26.05.2008 appears to have dismissed the suit of the plaintiff and decreed the counter claim of the defendant.
3. Challenging the said decree, the plaintiff preferred RFA No.776/2008 before this Court which also came to be dismissed by the Judgment of this Court dated 19.02.2013. Alleging that this Court in the said RFA did not consider various points and as such, there is apparent error on the face of the record, the appellant in said RFA (plaintiff in the original suit) has preferred this review petition.
4. Learned counsel for the review petitioner in his arguments submitted that the very points for consideration framed by this Court in RFA No.776/2008 are not pertaining to and suffice to dispose of the appeal on merit. Further, as shown in the memorandum of appeal itself, this Court has not appreciated the evidence placed before it R.P. NO.115/2013 in R.F.A.No.776/2008 4 and proceeded to dispose of the appeal on the basis of the pleadings of the parties. As such, there is prima facie error apparent on the face of the record.
5. Learned counsel for the respondent submits that when admittedly the plaintiff was not a party to the sale deed at Ex.P8 and under which the defendants had acquired the properties, he cannot maintain the suit which the Trial Court has considered while decreeing the counter claim of the defendant. That apart, the Trial Court as well as this Appellate Court has considered all the aspects agitated before it and as such there is no error apparent on the face of the record.
6. A perusal of the impugned Judgment would go to show that the Trial Court had framed the following issues and additional issues in the matter:
ISSUES:
"1. Whether the plaintiff proves that he is in possession of the suit schedule property?
R.P. NO.115/2013 in R.F.A.No.776/2008 5
2. Whether the plaintiff proves that the defendant interfered with his possession of the suit property?
3. Whether defendant proves that he is in possession of Sy. No.56/7, measuring 1 Acre 13 guntas situated in Bommanahalli, Begur Hobli, Bangalore South Taluk?
4. Whether the defendant proves that the plaintiff interfered with his possession of 1 Acre 13 guntas of land in Sy. No.56/7?
5. What relief the parties are entitled to?
ADDITIONAL ISSUES FRAMED ON 31.3.97:
1. Whether the defendant proves that he has been living in the huts which are in the suit schedule lands several years prior to the institution of the suit and/or that he is in actual possession of the suit property as contended in para No.1 of his additional written-statement?
2. Whether the defendant proves that he did not put up any huts during the pendency of the suit or after granting of the order of Temporary injunction?
R.P. NO.115/2013 in R.F.A.No.776/2008 6
3. Whether the plaintiff is entitled to a decree for Mandatory injunction for the removal of 2 huts put up the defendant in the suit property, as contened in para No.10 of his plaint?
ADDITIONAL ISSUES FRAMED ON 22.02.2000:
1. Whether the plaintiff proves that inspite of grant of injunction, the defendant in breach of the said order has put up 2 huts, as averred in para No.6(a) of the plaint?
2. Whether the plaintiff proves that the defendant along with his 2 sons have entered into an Agreement of Sale and that the defendant and his sons have issued GPAs in favour of Anjanappa and others as averred in para No.6(b) of the plaint?
ADDITIONAL ISSUE FRAMED ON 23.02.2000:
1. Whether the plaintiff proves that there are 2 buildings as averred in para No.6(c) and
(e) of amended plaint?
R.P. NO.115/2013 in R.F.A.No.776/2008 7
7. After hearing both side, this Court in the Regular First Appeal, framed the following points for consideration:
1. Whether the suit property as described in the schedule to the plaint belongs to the plaintiff as claimed by him in the pleadings?
2. Whether the suit schedule property is the property as shown in the written statement filed by defendant No.1?
3. Whether the counter claim of defendant No.1 is barred for want of proper averment as to the cause of action?
8. This Court in para 23 of its Judgment has given a detailed reasoning by stating that it is not necessary for it to go into the details of the evidence of the parties and it is suffice to refer to the pleadings as pleaded in the plaint. A perusal of the subsequent paras in the Judgment would go to show that this Court has considered all the contentions that was placed before it by the parties and arrived at a finding leading to the dismissal of the appeal.
R.P. NO.115/2013 in R.F.A.No.776/2008 8
9. The said process adopted and the Judgment pronounced cannot be called as containing any error apparent on the face of the record. If the contentions of the appellant / review petitioner are taken into consideration and the petition if admitted for review purpose, then it would amount to re-appreciation of the materials and evidence placed on record which only an Appellate Court can do and since the scope of the review petition is very much limited, as such, I do not find any error apparent on the face of the record or any reasons for admitting this review petition.
Accordingly review petition stands rejected. In view of the rejection of the review petition, I.A. Nos.1 and 2 of 2013 do not survive for consideration.
Sd/-
JUDGE sac*