Karnataka High Court
Sri N K Matadaiah vs Sri M Ananda Raju on 18 September, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:38709
RFA No. 1468 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 1468 OF 2016 (INJ)
BETWEEN:
1. SRI. N. K. MATADAIAH,
@ N K MATTADAPPA,
S/O LATE KEMPANNA,
AGED ABOUT 83 YEARS,
OLD NO. 394,
NEW NO. 51, OLD POST OFFICE ROAD,
KRISHNARAJAPURAM,
BANGALORE - 560 036.
(DELETED V/O DATED
22.03.2019)
2. DR. SUMITHRA T. GOWDA
W/O N M THEERTHE GOWDA,
AGED ABOUT 59 YEARS,
NO. 141/B, 6TH MAIN,
IV BLOCK, RAJAJINAGAR,
BANGALORE - 560 010.
Digitally
signed by ...APPELLANTS
MALATESH (BY SRI. CHANDRASHEKAR REDDY K P, ADVOCATE)
KC
Location: AND:
HIGH
COURT OF
KARNATAKA 1. SRI. M. ANANDA RAJU
S/O LATE MUNISWAMY RAJU,
AGED ABOUT 74 YEARS,
NO. 51/1, OLD POST OFFICE,
KRISHNARAJAPURAM,
BANGALORE - 560 036.
...RESPONDENT
(BY SRI. K N HARIDASAN, ADVOCATE)
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NC: 2024:KHC:38709
RFA No. 1468 of 2016
THIS RFA FILED UNDER SEC. 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 04.08.2016 PASSED IN OS
NO. 3706/1998 ON THE FILE OF THE VII ADDL. CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH 19),
DECREEING THE SUIT FOR PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri.Chandrashekar Reddy K. P., learned counsel for the appellants and Sri.Sheela Adaveeshaiah, learned counsel for the respondent.
2. Defendants are in this appeal challenging the validity of the judgment and decree passed in O.S.No.3706/1998 dated 04.08.2016 on the file of VII Addl. City Civil and Sessions Judge, Bangalore (CCH-19).
3. For the sake of convenience, parties are referred to as plaintiff and defendants as per their original ranking before the Trial Court.
4. Brief facts of the case which are utmost necessary for disposal of the appeal are as under: -3-
NC: 2024:KHC:38709 RFA No. 1468 of 2016 4.1. Plaintiff filed a suit against the defendants for the relief of permanent injunction restraining the defendants or any one acting on their behalf from interfering with the plaintiff's right of ownership, possession and enjoyment in respect of 'B' schedule property which is described hereunder and herein after referred to as suit schedule property:
SCHEDULE B Southern side wall forming part of property No.51/1, measuring East to West 38 and North to south 1 to a height of 9 together with the abutting vacant area measuring East to West 38 and North to South 1'3'' situated at Old Post offie Road, Krishnarajapuram, Bangalore together bounded on the East by Road, West by conservancy Road, North by the remaining portion of the plaintiff's property No.51/1 and south by vacant portion belong to Sri.Matadaiah @ Mattadappa."
4.2. It is the case of the plaintiff that plaintiff is the absolute owner in possession and enjoyment of suit schedule 'A' property bearing No.51/1, old Post office Road, Krishnarajapuram, Bengaluru - 36 having purchased the same from its erstwhile owner Sri.H.C.Ramachandraiah under a registered sale deed dated 19.08.1970.-4-
NC: 2024:KHC:38709 RFA No. 1468 of 2016 4.3. It is also his case that from the date of purchase, he has been enjoying the suit property and there was a trespass by defendant No.1 which necessitated the plaintiff to approach the Court in O.S.No.5762/1989 before the Addl. City Civil and Sessions Judge, Bangalore (CCH-13) seeking relief of mandatory injunction with respect to encroached portion. 4.4. It is further contended by the plaintiff that suit was decreed in favour of the plaintiff and later on defendant No.1 filed a miscellaneous petition which was also dismissed for non prosecution.
4.5. When the matter stood thus, plaintiff made attempts to repair the wall. At that juncture, again defendant No.1 threatened with dire consequences and started interfering with the plaintiff's peaceful possession of the property and therefore, plaintiff filed the present suit.
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NC: 2024:KHC:38709 RFA No. 1468 of 2016 4.6. During the pendency of the suit, plaintiff came to know that the suit schedule 'B' property has been sold in favour of defendant No.2 and therefore, defendant No.2 was impleaded in the suit.
5. After service of suit summons, defendant No.1 appeared and contested the suit by filing detailed written statement.
6. Based on the rival contentions of the parties, Trial Court raised following issues:
1. Whether the plaintiff proves that he was in lawful possession of the suit schedule properties as on the date of filing the suit?
2. Whether the plaintiff proves the alleged interference by the defendant?
3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?
4. What decree or order?
7. In order to prove the case of the plaintiff, plaintiff got examined himself as P.W.1 and placed on record thirty three documents which were exhibited and marked as Exs.P.1 to Ex.P.33 wherein the judgment of the -6- NC: 2024:KHC:38709 RFA No. 1468 of 2016 previous suit in O.S.No.5762/1989 was also placed on record.
8. As against the evidence placed on record, defendant No.1 got examined himself as D.W.1 and placed on record ten documents which were exhibited and marked as Exs.D.1 to Ex.D.10.
9. During the pendency of the suit, a Court Commissioner was also examined for the local inspection of the suit properties as there was dispute with regard to identity and alleged encroachment. Court Commissioner visited the spot and after noting ground realities, filed report which was marked before the Trial Court as Ex.C.4. The sketch which accompanied the report is marked at Ex.C.3.
10. On cumulative consideration of the oral and documentary evidence placed on record, learned Trial Judge decreed the suit of the plaintiff.
11. Being aggrieved by the same, defendants are before this Court, in this appeal.
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NC: 2024:KHC:38709 RFA No. 1468 of 2016
12. During the pendency of the appeal defendant No.1/appellant No.1 died and therefore, appeal stood dismissed as against appellant No.1/defendant No.1. Appellant No.2 is prosecuting the matter claiming that she has purchased the property from defendant No.1 and therefore, the injunction passed against her is incorrect.
13. Sri.Chandrashekar Reddy K. P., learned counsel for the appellants reiterating the grounds urged in the appeal memorandum, contended that suit in O.S.No.5762/1989 on which the Trial Court placed heavy reliance was decreed ex-parte and miscellaneous petition filed by defendant No.1 was dismissed for non prosecution.
14. He also pointed out that name and address of defendant No.1 was not properly mentioned either in O.S.No.5762/1989 or in the present suit resulting in miscarriage of justice and therefore, sought for admitting the appeal for further consideration. -8-
NC: 2024:KHC:38709 RFA No. 1468 of 2016
15. Per contra, Smt.Sheela Adaveeshaiah, learned counsel contended that address of defendant No.1 is properly mentioned and name of defendant No.1 is also properly mentioned and if there is any spelling mistake or name of the person has been wrongly spelt out, the same shall not cause any serious prejudice to the rights of defendant No.1 inasmuch as schedule of the property in O.S.No.5762/1989 and the present suit are practically one and the same and sought for dismissal of the appeal.
16. Having heard the parties in detail, this Court perused the material on record meticulously.
17. On such perusal of the material on record, it is crystal clear that the schedule of the property in O.S.No.5762/1989 and the present suit are practically one and the same.
18. For the reasons best known to defendant No.1, he did not prosecute the miscellaneous petition which was filed to set aside the ex-parte decree passed in O.S.No.5672/1989. Admittedly, the said decree is a -9- NC: 2024:KHC:38709 RFA No. 1468 of 2016 decree of declaration and mandatory injunction. When such a decree is already available on record in favour of the plaintiff, defendants cannot now turn around and say his name was not properly spelt out in the suit. Had that been so, why would he venture to file a miscellaneous petition seeking setting aside the ex-parte decree is a matter that assumes sufficient significance.
19. Moreover in the miscellaneous petition, he has spelt out his name as Mattadaiah and therefore, in the plaint, his name being shown as N.K.Mattadaiah @ N.K.Mattadappa is just and proper. If he is Mattadaiah or Mattadappa, his miscellaneous petition should have also name had the same name of Mattadaiah or Mattadappa.
20. Moreover, what is to be looked into is the property particulars. Since the property particulars in both the suits are one and the same and if defendant No.1 had nothing to do with the property, he would not have contested the present suit or the earlier suit by filing miscellaneous petition.
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NC: 2024:KHC:38709 RFA No. 1468 of 2016
21. Therefore, mere non-mentioning the proper name of defendant No.1 who is no more, cannot be a ground to admit the appeal for further consideration.
22. Further, defendant No.2 being a party for the reasons best known, did not chose to place any evidence on record.
23. Under such circumstances, if defendant No.2 has got an independent right other than what defendant No.1 possessed, it is always open for defendant No.2 to take action in accordance with law before the appropriate forum.
24. Reserving the liberty for defendant No.2 and reserving the rights of the plaintiff to be urged in such an intended proceedings, this Court is of the considered opinion that appeal needs to be dismissed.
25. Hence, following:
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NC: 2024:KHC:38709
RFA No. 1468 of 2016
ORDER
i. Admission declined.
ii. Appeal is dismissed.
iii. No order as to costs.
Sd/-
(V SRISHANANDA)
JUDGE
KAV/List No.: 1 Sl No.: 29