Karnataka High Court
Sri Shivaiah vs Sri Ashok Venkatesh Shet on 16 January, 2023
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16Th DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REVIEW PETITION NO.264/2021
IN
R.F.A.NO.1013/2023
BETWEEN:
SRI SHIVAIAH
S/O KEMPEGOWDA,
AGED ABOUT 77 YEARS,
R/AT H.NO.46, I CROSS ROAD,
RAJARAJESHWARI NAGAR, LAGGERE,
BENGALURU-560 058. ... PETITIONER
(BY SRI KRISHNA SWAMY, ADVOCATE FOR
SRI RAMAKRISHNA HEGDE, ADVOCATE)
AND:
SRI ASHOK VENKATESH SHET
S/O LATE VENKATESH SHET,
AGED ABOUT 57 YEARS,
R/AT AMMINAHALLI CHALA,
OPPOSITE TO RTO OFFICE,
CHOWKY MATTA ROAD,
SIRSI TOWN,
UTTAR KANNADA-581 404. ... RESPONDENT
(BY SRI NAGENDRA KUMAR K, ADVOCATE)
2
THIS REVIEW PETITION IS FILED UNDER SECTION 114
R/W ORDER 47 RULE 1 OF CPC, PRAYING TO REVIEW THE
JUDGMENT DATED 02.12.2019 PASSED BY THIS HON'BLE
COURT IN R.F.A.NO.1013/2013.
THIS REVIEW PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 12.01.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
This review petition is filed praying this Court to review the judgment and decree passed in R.F.A.No.1013/2013 dated 02.12.2019, confirming the judgment and decree passed by the Trial Court in O.S.No.4416/2006 dated 27.03.2013.
2. The main contention urged in this review petition is that in spite of the Trial Court directed to produce the original power of attorney, the same has not been produced and ought to have drawn an adverse information with regard to non production of power of attorney. The learned counsel also would vehemently contend that the very title of the plaintiff was denied 3 before the Trial Court. When such being the case, the suit for bare injunction is not maintainable.
3. The learned counsel appearing for the review petitioner would contend that in view of the judgment of the Apex Court in the case of JHARKHAND STATE HOUSING BOARD v. DIDAR SINGH AND ANOTHER reported in (2019) 17 SCC 692, in paragraph No.12, held that, it is for the plaintiff to seek declaration and hence the suit for permanent injunction is not maintainable. The Court is empowered to decide the issue of declaration in the same suit to mitigate the litigation and hence filed the review petition. The learned counsel also would contend that while arguing the appeal by oversight did not place the citation in the case of ANATHULA SUDHAKAR v. BUCHI REDDY (DEAD) BY L.Rs., and Ors. reported in 2008 AIR SCW 2692. This Court while considering the appeal in paragraph No.16 in page No.29 held that "it is left open to the parties to file a comprehensive suit with regard to declaration". Further observed in page No.28 that "both the parties are claiming their respective title based on the sale deed". When 4 such observations are made, the said observations should be made against the plaintiff/respondent particularly and if that is modified to such an extent, the dispute will be decided in a particular manner. Hence, modify the said judgment by allowing the review petition.
4. Per contra, the learned counsel appearing for the respondent/plaintiff would vehemently contend that the suit is filed only for a bare injunction and no need to seek for declaration. The Trial Court framed issue No.3, i.e., whether it needs to seek the relief of declaration, the same is answered as 'negative'. Apart from that, even the review petitioner herein has not cross-examined P.Ws.1 and 2. The Trial Court has given the reasoning in paragraph No.30 of the judgment that when the suit is filed for a bare injunction, need not necessary to seek for declaration and the very case of the plaintiff has not been challenged by the petitioner herein.
5. In reply to the arguments of the learned counsel for the respondent, learned counsel appearing for the review 5 petitioner would vehemently contend that not examined the power of attorney holder and also the executor has not been examined. Exs.D10 and D11 are produced with regard to cancellation and the order sheet is also clear that directed the plaintiff to produce the original power of attorney; the same has not been produced.
6. Having heard the respective counsel and the grounds which have been urged in the review petition and also on perusal of the material available on record, the points that would arise for consideration of this Court are:-
(i) Whether the review petitioner has made out a ground to review the judgment and decree passed in R.F.A.No.1013/2013?
(ii) What order?
Point No.(i):
7. Having heard the respective counsel and on perusal of the material available on record and also the grounds urged in this review petition, the same are replica of the earlier grounds which have been urged in the appeal. No doubt, relied upon the 6 judgment of the Apex Court in JHARKHAND STATE HOUSING BOARD's case (supra), regarding maintainability of the permanent injunction suit. I have also considering the grounds urged in the review petition, no where urged the ground that this Court has committed an error apparent on the face of the record to invoke the review jurisdiction. Only in ground No.12, urged with regard to the observations made by this Court with regard to "it is left open to the parties to file a comprehensive suit with regard to declaration" since "both the parties are claiming their respective title based on the sale deed".
8. Having perused the grounds urged in the review petition, I have already pointed out that no where, it is contended that this Court has committed an error apparent on record and not considered the material on record. The error apparent on the face of the record requires invoking the review jurisdiction. The learned counsel would contend that the observations made by this Court in dismissing the appeal in paragraph No.16 that both the parties are claiming their respective rights based on the sale deed executed by the power 7 of attorney holder and another executed by the original owner and it is left open to the parties to file a comprehensive suit with regard to declaration and such observation has to be modified by reviewing the order that the plaintiff has to seek the relief of comprehensive suit with regard to declaration. The said contention cannot be accepted and the said observation is also made looking into the material available on record and even the appellant took the defense of claiming right but not cross examined P.Ws.1 and 2.
9. This Court in paragraph No.16 came to the conclusion that the defendant/review petitioner herein has claimed right based on the sale deed dated 16.05.2006 and denied the very power of attorney contending that no right was conferred upon the plaintiff and he has not filed any suit for cancellation of the Sale Deed on the ground that the power of attorney was cancelled. It is contended that based on the cancelled power of attorney he has executed the Sale Deed in favour of the plaintiff. The very contention of the learned counsel appearing for the review petitioner is that either the 8 executant of the power of attorney or the power of attorney holder has been examined; the said contention cannot be accepted. When the defendant took the defense that the power of attorney was cancelled and when he asserts the same, the burden is on the defendant to prove the same and not the plaintiff and the plaintiff cannot lead negative evidence and the defendant has to prove the same once he asserts the same.
10. This Court in paragraph No.16 has observed that the main contention of the plaintiff is that the defendant has interfered with the possession of the plaintiff and in order to substantiate his contention he has produced Exs.P19 and 20 and further observed that the defendant claiming right based on the Sale Deed-Ex.D1 and both Courts have not committed any error. When both parties are claiming their respective rights based on the sale deed, one executed by the power of attorney holder and another executed by the original owner and when the suit is filed for the relief of bare injunction, it is left open to the parties to file a comprehensive suit with regard to declare their right, the same cannot be modified as contended by the review petitioner 9 and if he is claiming the right based on the sale deed, which is subsequent to the sale deed in favour of the plaintiff, it is left to the review petitioner to approach and seek the relief of declaration and in a suit for bare injunction, the plaintiff has established the possession by relying upon the document that he has been in possession as on the date of the suit and also the Courts have to take note of the same whether the plaintiff was in possession as on the date of the suit and whether there is any interference. When such fact has been established, the Trial Court rightly granted the decree. The very contention is that when the title has been disputed, the plaintiff ought to have sought for the relief of declaration cannot be accepted and there was a sale deed in favour of the plaintiff executed on 13.02.2006 and the defendant/review petitioner seeking the right based on the subsequent sale deed dated 16.05.2006. Hence, the contention of the review petitioner is that the judgment and decree ought to be reviewed cannot be accepted and also the modification sought during the course of the arguments also cannot be accepted. The judgment, which has been relied upon by the learned counsel for the review petitioner in ANATHULA 10 SUDHAKAR' case (supra), will not comes to the aid of the review petitioner and the Court has to take note of the facts and circumstances of each case and also the judgment of the Apex Court in JHARKHAND STATE HOUSING BOARD's case (supra), will not comes to the aid of the review petitioner. In view of the relief sought by the plaintiff for bare injunction and he claimed the possession based on the Sale Deed which was earlier to the defendant and no cloud over the title of the plaintiff since the defendant relying upon his sale deed, which is subsequent to the Sale Deed of the plaintiff based on the earlier Sale Deed. Under the circumstances, the plaintiff can maintain a suit for bare injunction with regard to his possession based on the earlier Sale Deed. Hence, I do not find any merit in the review petition to entertain the review petition when there is no error apparent on the face of the record in not considering the material on record and the similar grounds are urged in the appeal itself and the same has been considered while disposing of the appeal. Hence, the review petition is devoid of merits. 11 Point No.(ii):
11. In view of the discussions made above, I pass the following:
ORDER The review petition is dismissed.
Sd/-
JUDGE cp*