Karnataka High Court
Muniyappa vs Doddamuniyappa on 22 July, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 22nd DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
R.F.A.NO.936 OF 2014(DEC)
BETWEEN
MUNIYAPPA
S/O LATE MADDURIGA @ MADDURAPPA
AGED ABOUT 65 YEARS
RESIDENT OF S. THELLOHALLI VILLAGE
CHANNARAYAPATNA HOBLI, DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT - 562 110.
...APPELLANT
(BY SRI. K.N. NITISH. FOR
SRI. K.V. NARASIMHAN., ADVOCATE)
AND
1. DODDAMUNIYAPPA
S/O LATE PATEL MUNISHAMAPPA
SINCE DEAD BY HIS LRS.
1A) T.D.NARAYANASWAMY
S/O DODDAMUNIYAPPA
SINCE PRE-DECEASED IS FURTHER
REPRESENTED BY HIS LRS.
1(A.1) NAGAMMA
W/O LATE NARAYANASWAMY
AGED ABOUT 50 YEARS
RESIDENT OF S. THELLOHALLI VILLAGE
CHANNARAYAPATNA HOBLI
DEVANAHALLI TALUK - 562 110
BENGALURU RURAL DISTRICT.
1(A.2) INDRAMMA
W/O S.M. NARAYANASWAMY
2
D/O T.D. NARAYANASWAMY
AGED ABOUT 33 YEARS
RESIDING AT KURUBARAPETE
SULIBELE, HOSKOTE TALUK
PIN - 562 129.
1(A.3) N. RAMESH
S/O LATE NARAYANASWAMY
AGED ABOUT 29 YEARS
RESIDENT OF S. THELLOHALLI VILLAGE
CHANNARAYAPATNA HOBLI
DEVANAHALLI TALUK - 562 110
BENGALURU RURAL DISTRICT.
2. SMT. MUNITHAYAMMA
W/O LATE CHIKKAMUNIYAPPA
SINCE DEAD BY HER LRS
R-3 TO R-10 WHO ARE ALREADY ON RECORD.
3. SRI. MALLESHA
S/O LATE CHIKKAMUNIYAPPA
AGED ABOUT 38 YEARS.
4. SRI. CHANDRAPPA
S/O LATE CHIKKAMUNIYAPPA
AGED ABOUT 31 YEARS.
5. SRI. MUNISWAMY GOWDA
S/O LATE CHIKKAMUNIYAPPA
AGED ABOUT 28 YEARS.
6. SMT. RAJAMMA
D/O LATE CHIKKAMUNIYAPPA
AGED ABOUT 40 YEARS.
7. SMT. NANAJAMMA
D/O LATE CHIKKAMUNIYAPPA
AGED AOBUT 35 YEARS.
8. SMT. SAROJAMMA
D/O LATE CHIKKAMUNIYAPPA
AGED ABOUT 40 YEARS.
9. SMT. ANANDAMMA
D/O LATE CHIKKAMUNIYAPPA
3
AGED ABOUT 30 YEARS.
10. SMT. MANJULA
D/O LATE CHIKKAMUNIYAPPA
AGED AOBUT 28 YEARS.
R-2 TO 10 ARE
RESIDENT OF S. THELLOHALLI VILLAGE
CHANNARAYAPATNA HOBLI
DEVANAHALLI TALUK - 562 110
BENGALURU RURAL DISTRICT.
11. SMT. DODDAKKAYAMMA
D/O LATE MADDURIGA @ MADDURAPPA
SINCE DEAD BY HER LRS
11A) SMT. MUNIYAMMA
W/O LATE GANGAPPA
D/O DODDAKKAYAMMA
SINCE DEAD BY HER LR- THE APPELLANT
SRI. MUNIYAPPA.
11B) SMT. NARAYANAMMA
W/O LATE VENKATESH
AGED ABOUT 50 YEARS.
R-11(A) AND (B) ARE
RESIDENT OF S. THELLOHALLI VILLAGE
CHANNARAYAPATNA HOBLI
DEVANAHALLI TALUK - 562 110
BENGALURU RURAL DISTRICT.
11(C) SMT. RATHNAMMA
W/O VEERAJAPPA
D/O DODDAKKAYAMMA
AGED ABOUT 46 YEARS
R/O NAKKANAHALLI VILLAGE
NANDAGUDI HOBLI, HOSAKOTE TALUK
BENGALURU RURAL DISTRICT - 562 129.
11D) SMT. LAKSHMAMMA
W/O MUNIYAPPA
D/O DODDAKKAYAMMA
SINCE DEAD BY HER LR- THE APPELLANT
SRI. MUNIYAPPA.
4
11E) NARASIMHAPPA
S/O DODDAKKAYAMMA
AGED ABOUT 40 YEARS
RESIDENT OF S. THELLOHALLI VILLAGE
CHANNARAYAPATNA HOBLI
DEVANAHALLI TALUK - 562 110
BENGALURU RURAL DISTRICT.
...RESPONDENTS
(BY SRI. SPOORTHY HEGDE.N., ADVOCATE FOR R-1 (A) (3)
SRI. H. SHANTHI BHUSHAN., ADVOCATE FOR R-1(A) (1&2)
V/O/DT: 17.11.2014 NOTICE TO R-3 TO R-10 ARE H/S
V/O/DT: 20.09.2021 R-3 TO R-10 ARE LRS OF DECEASED R-2)
THIS APPEAL IS FILED UNDER SECTION 96 R/W ORDER 41,
RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:
02.04.2014 PASSED IN O.S.NO. 1185/2007 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI DECREEING THE
SUIT FOR DECLARATION AND INJUNCTION.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by defendant No.10 in O.S.No.1185/2007 is directed against the impugned judgment and decree dated 02.04.2014 passed by the Senior Civil Judge and JMFC, Devanahalli (for short "the trial Court), whereby the said suit filed by respondent No.1-plaintiff against the appellant- defendant No.10 and other defendants-respondents for declaration permanent injunction and other reliefs in respect of 5 the suit schedule immovable property was decreed by the trial Court in favour of the plaintiff against the defendants.
2. Heard learned counsel for the appellant, learned counsel for respondents and perused the material on record.
3. The material on record indicates that the plaintiff instituted the aforesaid suit for declaration that he is the absolute owner in possession of the suit schedule property and also for a declaration that the compromise decree dated 12.11.2007 passed in O.S.No.1036/2007 between defendant No.10(appellant), defendant No.11 and defendant Nos.1 to 9 on the file of the Senior Civil Judge and JMFC, Devanahalli was not binding upon the plaintiff and for permanent injunction and other reliefs. In the suit, while defendant Nos.1 to 9 remained exparte and did not contest the suit, defendant Nos.10 and 11 filed their written statement and contested the suit.
4. Based on the pleadings of the parties, the trial Court framed the following issues:
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1) Whether the plaintiff proves that he has acquired the suit property in the family partition dated 18-9-
1984 and has been in lawful possession of the same as its absolute owner?
2) Whether the plaintiff proves that the defendants colluded each other have falsely instituted O.S.No.1036/07 and obtained a collusive compromise decree and that decree does not bind the right of plaintiff in the suit property?
3) Whether the plaintiff proves that from 6-8-1962 along with the family members of Late. Patel Munishamappa he was in joint possession and from 1984 he alone has been in continues, uninterrupted and peaceful possession and enjoyment of the suit property adverse to the interest of defendants and all other persons at large?
4) Whether defendants.10 and 11 prove that out of 5 acre 13 guntas of land in Sy.No.8 of Shotriya Thellohally Village, 2 acre 27 guntas was granted to Madduriga @ Maddurappa who was their father, on 25-4-1962 and there was a mistake crept in R.T.C. column No.9 indicating the name of Patel. Chikkamuniyappa showing the source 'though sale' and in that view of matter O.S.No.1036/07 was filed against defendants 1 to 7 9 and on 12-9-2007 a compromise decree was passed and it is a legal decree binds the plaintiff?
5) Whether the defendants 10 and 11 prove that the plaintiff and others taking advantage of compromise decree passed in O.S.No.1036/2007 taking advantage of innocence and weakness of defendant 10 and 11 entered an agreement to relinquish the right of plaintiff and others by agreeing to receive a consideration of Rs.31,00,000/- and executed a deed of relinquishment of possession on 24-12-2007 and that deed binds the plaintiff?
6) Whether the plaintiff is entitled for the relief prayed for?
7) What order or decree?
5. The sole plaintiff having expired during the pendency of the suit, one of the legal representatives of the plaintiff i.e., plaintiff Nos.1(aiii) examined himself as PW.1 and two witnesses as PWs.2 and 3 and documentary evidence at Exs.P-1 to 18 were marked. However, the appellant(defendant No.10) and defendant No.11 did not cross-examine PWs.1 to 3 nor did they adduce any oral or documentary evidence. 8
6. The trial Court proceeded to decree the suit in favour of the plaintiff, aggrieved by which, the appellant is before this Court by way of the present appeal.
7. During the pendency of this appeal, the appellant has filed an application, I.A.No.1/2022 under Order 41 Rule 21 CPC for permission to produce documents by way of additional evidence. In addition to opposing the said application, the LRs of respondent No.1 - plaintiff have filed I.A.No.2/2022 also under Order 41 Rule 21 CPC for permission to produce documents by way of additional evidence. The appellants have opposed I.A.No.2/2022.
8. The following points arise for my consideration in the present appeal:
i. Whether the appellant and legal representatives of respondent No.1 have made out sufficient grounds to allow I.A.No.1/2022 and 2/2022 filed by them respectively?
9ii. Whether the impugned judgment and decree warrants interference by this Court in the present appeal?
Re. point No.(i):
9. A perusal of the material on record will indicate that despite filing his written statement and contesting the suit on merits by claiming right, title, interest and possession over the suit schedule property and by denying the claim of the plaintiff, the appellant-defendant No.10 did not cross-examine the plaintiff and his witnesses nor adduced oral and documentary evidence in support of his defence. In my considered opinion, having regard to the nature of dispute involved between the parties and the reliefs sought for in the suit involving valuable possessary and proprietary rights over suit schedule immovable properties, by adopting a justice oriented approach, I deem it just and proper to provide one more opportunity to the appellants to defend their suit and substantiate their defence by setting aside the impugned judgment and decree and remit the matter back to the trial Court for reconsideration afresh in accordance with law. 10
10. It is also significant to note that both sides have sought for permission to adduce additional evidence in support of their respective claims; in this context, it is relevant to note that a perusal of the documents produced along with I.A.No.1/2022 and I.A.No.2/2022 will indicate that the same are relevant, material, necessary and essential for not only the purpose of disposal of the present appeal, but also for the purpose of adjudication of the issues in controversy between the parties. Under these circumstances, I am of the considered opinion that both I.A.No.1/2022 and I.A.No.2/2022 deserve to be allowed and accordingly, both the applications are hereby allowed and the documents produced along with the applications are received on record.
Point No.(i) is accordingly answered. Re. point No.(ii):
11. Having come to the conclusion that an opportunity has to be provided to the appellant to substantiate his defence and having allowed both parties to produce additional documents by way of additional evidence, having 11 regard to the nature of controversy involved between the parties, it would be just and appropriate to set aside the impugned judgment and decree and remit the matter back to the trial Court for reconsideration afresh in accordance with law.
Point No.(ii) is also answered accordingly.
12. In the result, I pass the following:
ORDER
(i) The appeal is hereby allowed.
(ii) The impugned judgment and decree
dated 02.04.2014 passed in
O.S.No.1185/2007 by the Senior Civil Judge and JMFC, Devanahalli is hereby set aside.
(iii) The matter is remitted back to the trial
Court for reconsideration afresh in
accordance with law.
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(iv) I.A.Nos.1/2022 and 2/2022 are hereby
allowed and the documents produced
along with them are received on record.
(v) Registry is directed to transmit the trial Court records back to the trial Court forth with along with I.A.Nos.1/2022 and 2/2022 and the documents produced along with the said interlocutory applications.
(vi) Liberty is also reserved in favour of the parties to adduce oral and documentary evidence/further oral and documentary evidence in support of their claims.
(vii) All rival contentions are kept open and no opinion is expressed on the same.
(viii) Both parties undertake to appear before the trial Court on 22.08.2022 without awaiting further notice from the trial Court. 13
(ix) In view of the fact that the suit is of the year, 2007, the trial Court is hereby directed to dispose of the suit as expeditiously as possible and preferably within a period of six months from the date of receipt of a copy of this judgment.
Sd/-
JUDGE BMC