Karnataka High Court
Smt. P.B. Janaki vs Sri M.L.N Rao on 11 August, 2022
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL NO.1041 OF 2014 (DEC/INJ)
BETWEEN:
1. SMT. P.B. JANAKI
W/O LATE P.M.BHEEMAIAH,
AGED ABOUT 86 YEARS.
2. SMT. P.B.PARVATHI,
D/O.LATE P.M.BHEEMAIAH,
AGED ABOUT 60 YEARS.
3. SRI P.B.THIMMAIAH,
S/O LATE P.M.BHEEMAIAH,
AGED ABOUT 59 YEARS.
4. SMT. RITA BHEEMAIAH,
D/O.LATE P.M.BHEEMAIAH,
AGED ABOUT 86 YEARS.
APPELLANTS 1 & 4 ARE
LEGAL HEIRS OF LATE P.M.BHEEMAIAH
AND RESIDING AT NO.3549,
III CROSS, SERVICE ROAD,
HAL II STAGE, BANGALORE-560 008.
...APPELLANTS
(BY SRI.A.R.HOLLA., ADVOCATE)
AND:
1. SRI.M.L.N.RAO
AGED ABOUT 70 YEARS
R/O: NO.3550, III CROSS
2
HAL II STAGE
BANGALORE - 560 008.
2. BANGALORE DEVELOPMENT AUTHORITY
KUMARA PARK (WEST)
BANGALORE
REPRESENTED BY ITS COMMISSIONER.
...RESPONDENTS
(BY SRI.KARTHIK B. ADEKAR., ADVOCATE FOR
SRI.SOMNATH.H.S., ADVOCATE FOR C/R1;
SRI.M.V.VEDAMURTHY., ADVOCATE FOR R2)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 READ WITH
SECTION 96 OF CIVIL PROCEDURE CODE, 1908.
THIS RFA COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri.A.R.Holla., learned counsel for appellants and Sri.Karthik B. Adekar., learned counsel on behalf of Sri.Somnath.H.S., for caveator/ respondent No.1 have appeared in person.
2. For the sake of convenience, the parties are referred to as per their rankings before the Trial Court.
3. The brief facts of the case:
The case of the Plaintiff's in brief is that, in the layout formed by second respondent known as H.A.L II Stage, 3 Bangalore, the Plaintiff's were allotted with site No.3549 totally measuring 240.34 Sq. meters in the year 1984. But, in view of availability of marginal land as a result of uneven measurement of the sites, the plaintiff came in possession of site area measuring 247.79 Sq.meters more than 240.34 Sq. meters which was allotted. The plaintiff in their site totally measuring 247.79 Sq. mtrs put up construction by leaving a set-back of 4 feet on the Southern side. The first defendant who is the adjacent owner of the site bearing No.3550 towards the South of the plaintiff's site though allotted with a site area measuring 256.20 Sq. meters he came in possession of the site area measuring 259.16 Sq. meters more than 256.20 Sq.
meters which was allotted, in view of availability of marginal land as a result of uneven measurement of the sites.
As per building by-laws, three side compound walls have to be constructed by the site owner except left side compound wall of the site facing road.
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It is the further case of the plaintiff's that during the year 1993 when the first defendant tried to put up construction upon the entire car garage by raising pillar they strongly objected and to some extent they stopped his illegal construction.
The first defendant who was not in good terms with the plaintiffs after the above said incident during the year 1998 tried to encroach upon 4 feet back area on the Southern side of the plaintiff's property. The plaintiffs with no other alternative approached the Civil Court by filing a suit seeking perpetual injunction in O.S.No.8338/1998. In the said suit the first defendant appeared and contended that, the plaintiff's are unauthorizedly occupying the marginal (4 feet set-back area) alleged to be existing in between his site bearing No.3550 and the site of the plaintiff's 3549 and that, half of the marginal land is allotted to him by the second defendant. But it was the specific case of the plaintiff's that, there is no marginal land 5 existing in between Site No.3550 and 3549. In the said suit, the first defendant relied upon P.C.[Ex.D4] Memo dated 10/02/1998 [Ex.D5] and Sale Deed dated 27.03.1998 [Ex.D3] to support his contention that, there exists a marginal land in between site No.3550 and 3549 and that, the second defendant has allotted the same to him. The Court relying upon the documentary evidence thereby believing that there exists marginal land in between site No.3550 and 3549 dismissed the suit of the plaintiff's and the appeal preferred by them in RFA No.396/2003 also came to be rejected.
Then, the plaintiff's had filed an application seeking detailed information regarding allotment of marginal land in favor of first defendant alleged to be existing in between the site of the plaintiff's and the first defendant with the second defendant, but, the second defendant did not provide any information. Hence, a Writ Petition came to be filed before this Court in WP.No.25008 & 25197- 99/2003(BDA) seeking direction to the second defendant to 6 issue certified copy of the order passed if any in respect of granting of marginal land in favor of first defendant alleged to be existing in between site of the plaintiff's 3549 and that of the first defendant bearing No.3550.
In the said Writ Petition this Court observed that, the Court cannot record any finding about the disputed facts under Articles 226 & 227 of the Constitution of India without there being any trial. In view of the said observations the plaintiff's approached the Civil Court seeking various declaratory reliefs as hereunder:
(i) there is no marginal land situated in between Suit 'A' Schedule Property (Site No.3549 belonging to the plaintiffs) and Suit B Schedule Property (Site No.3550 belonging to the first defendant);
(ii) confirmation of the alleged marginal land in favor of the first defendant by the second defendant is void ab-initio and hence it will not confirm any right, title or interest on the first defendant in respect of the alleged marginal land alleged to be existing in between Suit A Schedule Property and Suit 'B' Schedule Property;7
(iii) in case, if the marginal land is existing then, it should be held that, plaintiffs have perfected their title being in settled possession of the marginal land to the knowledge and adverse to the interest of defendants 1 and 2.
The plaintiffs also sought for consequential relief of injunction against the defendants restraining them, their agents, servants or any one claiming through them, from interfering with the plaintiffs peaceful possession and enjoyment of Suit 'A' Schedule Property i.e., Site No.3549.
Upon service of suit summons, defendants appeared and filed their Written Statement. The first defendant contended that, there exist a marginal land in between his site bearing No.3550 and that of the plaintiffs 3549. The second defendant who had executed the Sale deed for half of the alleged marginal land alleged to be existing in between the site of plaintiffs bearing No.3549 and of the first defendant bearing site No.3550, filed Written Statement supporting the contentions of first defendant. 8
On behalf of plaintiff's the third plaintiff was examined as P.W.1 and Ex.P1 to Ex.P41 were marked and Ex.P42 to Ex.P54 were marked in the Cross-examination of defendant No.1/D.W.1.
The first defendant examined himself as DW1 and got marked documents at Ex.D1 to Ex.D16.
The second defendant did not step into the witness box. During trial, application under Order XVI Rule 7, 14, 21 read with Section 151 of C.P.C., was filed by the plaintiffs seeking direction of the Court to the second defendant or to its offer of the rank Assistant Executive Engineer, East Sub-Division/Executive Engineer, East Division to give evidence with regard to Ex.P 36/Ex.P 42 the true copy of the file pertaining to Site No.3550 (Schedule-B Property) of the first defendant obtained by the plaintiff's during pendency of the suit under R.T.I. The second defendant contended that, when the whole record pertaining to Site No.3550 is placed on record is admitted 9 by it, the question of leading evidence in respect of the said document does not arise. The Trial Court taking into consideration the contention of the second defendant rejected the application of the plaintiffs with an observation that "Civil cases are decided based upon the documents rather than the oral evidence. If no evidence is led on behalf of defendant No.2 under law of Evidence Act plaintiff can take advantage of the same and parties to the suit who fails to lead evidence, adverse inference against the party can be drawn."
The trial Court upon the pleadings, evidence and documents on record by its Judgment and Decree dated 11.04.2014 dismissed the suit. Hence, this appeal is filed on several grounds as set out in the memorandum of appeal.
4. Learned counsel for respective parties have urged several contentions.
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5. Heard the contentions urged on behalf of parties and perused the records with care.
6. The simple point which requires consideration is whether the dismissal of the suit is just and proper?
7. The facts have been sufficiently stated. The first defendant contended that the suit is barred by time and hit by principles of res-judicata as well as Order 2 Rule 2 of CPC. It was specifically contended that there was no cause of action to file the present suit and the cause of action if any had arisen in the year 1984 itself.
Suffice it to note that the Trial Court framed as many as 10 issues and one additional issue based on the material propositions put forth by the parties to the suit. One of the issues i.e., Issue No.8 relates to principles of res-judicata.
It is not in dispute that the plaintiff had initiated action in O.S.No.8338/98 and the same was disposed of against the plaintiff. It is also not in dispute that plaintiff 11 challenged the same before this court in RFA No.396/2002 and this court confirmed the judgment and decree of the Trial Court. It is interesting to note that the issue involved in the present suit was involved in the earlier suit. Hence the present suit is barred under Order 2 Rule 2 of CPC since the plaintiff had filed a suit earlier and the relief claimed in the present suit were well within the knowledge of the plaintiff at the time of filing of the earlier suit because all allegations made in the previous suit were enough to ask for relief prayed for in the present suit.
As is well known that where a plaintiff omits sue in respect of or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
I have no doubt at all that the decision at which the learned judge arrived is substantially in consonance with the provisions of the Code of Civil Procedure and the dismissal of the suit is just and proper.
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There is nothing more than this in the case. In view of what I have said as to the facts, I agree therefore, with the judgment passed by the Trial Court. Resultantly, I decline to invite the interference.
Accordingly, the Regular First Appeal is dismissed.
Sd/-
JUDGE TKN