Karnataka High Court
Khajane Gowda vs Smt Siddamma on 20 January, 2014
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
R.S.A.No.1574/2012 (INJ)
BETWEEN
Khajane Gowda,
S/o Late Basavaiah,
Aged about 71 years,
Residing at 101, 2nd Cross,
Jayanagar, Mysore - 570 014.
...Appellant
(By Sri M.D.Leelakrishnan, Adv.,)
AND:
1. Smt. Siddamma
D/o Devaiah,
Aged about 61 years,
2. Smt. Devamma,
D/o Devaiah,
Aged about 51 years,
Both residing at
No.100, 2nd Cross,
Jayanagar, Mysore - 570 014.
...Respondents
(By Sri S.K.Manjunath, Adv., for R1 and R2)
This RSA is filed under Section 100 of CPC against the
Judgment and Decree dated 19.4.2012 passed in
R.A.No.436/2011 on the file of Presiding Officer, Fast Track
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Court-IV, Mysore, dismissing the appeal and confirming the
Judgment and Decree dtd.6.4.2011 passed in
O.S.No.329/2001 on the file of IV Additional I Civil Judge &
JMFC., Mysore.
This RSA coming on for admission this day, the court
delivered the following:
JUDGMENT
The plaintiff in O.S. No.329/2001 on the file of IV Addl. I Civil Judge & JMFC., Mysore, has come up in this second appeal challenging the concurrent finding of both the Courts below in dismissing his suit for permanent and mandatory injunction.
2. The case of the plaintiff, who is appellant herein, is that his mother is an allottee of site No.101 from Mysore Urban Development Authority ('MUDA', for short) under reconveyance scheme. It is also his case that the site bearing No.100, which is situated adjacent to his site was regranted in favour of its earlier owner Dollaiah by MUDA., in the year 1965. According to plaintiff, so far as the ownership of his mother - Smt. Siddamma in respect -3- of site No.100 and that of Dollaiah in respect of site No.101, is not in dispute. It is also his case that during the life time of Dollaiah, he has sold half portion of site bearing No.100, measuring East to West 35 feet, North to South 40 feet in favour of one Smt. Rathnamma, who is not a party to this proceeding. According to plaintiff, the extent of site sold to Rathnamma is 17.5 feet x 40 feet, which was subsequently sold by her to D.C. Jayaram, who is also not a party before this Court. According to him, the said Jayaram has constructed a building on the property, which he has purchased from Rathnamma and has been in possession of the same.
3. It is stated that subsequently, the grand children of Dollaiah, defendants 1 and 2 tried to encroach into a portion of site No.101 to an extent of 17 ½ x 40 feet on the pretext that the sale, which was made by their grandfather Dollaiah in favour of Rathnamma is not from out of Sy. No.100 and the said site No.100 is still in their -4- possession as the legal representatives of deceased Dollaiah. In the said suit, admittedly, plaintiff did not produce any of the documents in respect of the aforesaid averments. The said averments were denied by defendants 1 and 2 and they reiterated that no portion of site No.100 is sold by their grandfather either in favour of Rathnamma or any other person and the property, which is now in possession of Jayaram was not portion of site No.100. In the absence of any document in support of plaint averments, suit of the plaintiff came to be dismissed and the said dismissal is also confirmed in R.A. No.436/2011, which is filed by him on the file of Fast Track Court - IV, Mysore.
4. As against the concurrent finding of both the Courts below in dismissing the suit for permanent and mandatory injunction, the plaintiff has filed this second appeal. In this appeal, application in I.A.I/2012 is filed for production of 11 documents to show re-conveyance of -5- site No.100 in favour of Dollaiah and endorsement given by MUDA., to demonstrate that portion of site No.101 of plaintiff is encroached by defendants 1 and 2. By way of these additional documents, the appellant - plaintiff is trying to establish his plea in the original suit, which he has failed to do earlier.
5. After hearing the learned counsel for appellant as well as the contesting respondents, Siddamma and Devamma, who are defendants 1 and 2, both on the merits of appeal as well as on the application, it is clearly seen that the present litigation in O.S. No.329/2001 and earlier suit, which is filed by defendant 1 and 2 in O.S. No.677/1998 as well as another suit, which is filed by owner of Sy. No.102 against present plaintiff in O.S. No.112/1993, are decided without the assistance of these documents. If the said documents were made available before the trial Court, the trial Court would have rightly appreciated the title of plaintiff`s mother, Smt. Siddamma -6- and grandfather of defendants 1 and 2, Dollaiah. Therefore, prima facie, there appears to be some point for consideration, which could not be decided by the trial Court in the absence of the documents, which are now sought to be produced.
6. On going through the judgments of both the Courts below, this Court feel that judgments of both the Courts below are required to be set aside and the matter is liable to be remanded to the trial Court, where Appellant has to file an application for production of additional documents, which are now sought to be produced along with I.A.I/2012. So also, liberty is required to be reserved to appellant to implead the owner of portion of site No.100, namely, D.C. Jayaram, whose predecessor, Rathnamma, is said to have purchased the said portion from Dollaiah, the grandfather of defendants 1 and 2 and also the owner of site No.102 and if necessary, to implead MUDA, who is the custodian of revenue records, which -7- would establish the original title in respect of Site Nos.100, 101 and 102 as well as any sale that has taken place in respect of any portion of site No.100 or 101 and possession and title of each of the parties in the said suit.
7. Reserving the aforesaid liberty to appellant herein, who is plaintiff in O.S. No.329/2001, this appeal is allowed. The judgment and decree dated 06.04.2011 passed in O.S. No.329/2001 on the file of the IV Addl. I Civil Judge & JMFC., Mysore, as well as the judgment and decree dated 20.04.2012 passed in R.A. No.436/2011 on the file of the Fast Track Court-IV, Mysore, are hereby set aside and the matter is remanded back to IV Addl. I Civil Judge & JMFC., Mysore, and O.S. No.329/2001 is restored to file of the trial Court.
8. It is made clear that the plaintiff - appellant herein and defendants - respondents 1 and 2 herein shall appear before the trial Court on 03.03.2014 in the remanded suit without awaiting for fresh summons or -8- notice in the said suit. On that day, the trial Court shall consider the applications to be filed by plaintiff for production of documents and impleading the owners of adjoining sites and MUDA. The trial Court shall also consider additional pleadings, if any, to be filed by the plaintiff and defendants 1 and 2 and other impleaded defendants. Thereafter, the trial Court shall reframe issues and dispose of the matter within 18 months from 03.03.2014.
Sd/-
JUDGE sma/-