Karnataka High Court
Surappa S/O Doddarangaiah vs Bheemaiah on 29 June, 2015
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RSA No.69/2010 A/W
MISC. CVL. No.308/2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JUNE 2015
BEFORE
THE HON'BLE MR.JUSTICE H.G.RAMESH
REGULAR SECOND APPEAL No.69/2010
A/W
MISCELLANEOUS CIVIL No.308/2010
BETWEEN:
SURAPPA
S/O DODDARANGAIAH
DEAD BY HIS L.R.
1 SMT. BHEEMAKKA
W/O LATE SURAPPA
AGED ABOUT 70 YEARS
VENKATESHAPURA
TUMKUR - 572 101
2. RANGANATHA
S/O LATE SURAPPA
AGED ABOUT 50 YEARS
KSRTC DRIVER
C/O VENKATACHALAIAH SCHOOL
MASTER, NEAR NATIONAL SCHOOL
YELLAPURA, TUMKUR - 572 101
2(a) SMT. MINAKSHAMMA
W/O LATE RANGANATHA
AGED ABOUT 42 YEARS
2(b) RAVIKIRAN.R
S/O LATE RANGANATHA
AGED ABOUT 23 YEARS
BOTH RESIDING AT VENKATESHAPURA
SIRA GATE, TUMKUR - 572 106
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RSA No.69/2010 A/W
MISC. CVL. No.308/2010
3. NARAYANA
S/O LATE SURAPPA
AGED ABOUT 48 YEARS
VENKATESHAPURA
TUMKUR - 572 101
4. MANJULA
(NOT MANGAMMA AS TYPED IN ORDER)
W/O PRAKASH
D/O LATE SURAPPA
AGED ABOUT 46 YEARS
R/O KURUBARA STREET
THYAMAGONDALU
BANGALORE RURAL DISTRICT-560 009
...COMMON APPELLANTS
(BY SRI ROHITH D.K., ADVOCATE)
AND:
BHEEMAIAH
S/O YELLAPPA
MAJOR
VENKATESHAPURA, SIRA GATE
TUMKUR - 572 101 ...COMMON RESPONDENT
(BY SRI PATEL D KAREGOWDA, ADVOCATE FOR C/R)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 13.10.2009
PASSED IN R.A.NO.92/2007 (OLD NO.10/2004) ON THE FILE OF
THE PRESIDING OFFICER, FAST TRACK COURT-IV, TUMKUR,
ALLOWING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 3.12.2003 PASSED IN O.S.81/1995 ON THE FILE
OF THE I ADDL. CIVIL JUDGE (JR.DN) & JMFC, TUMKUR.
MISC. CVL. No.308/2010 IS FILED UNDER ORDER 41 RULE
5 READ WITH SECTION 151 OF CPC, PRAYING TO GRANT AN
ORDER STAYING THE JUDGMENT AND DECREE PASSED BY THE
LEARNED FAST TRACK COURT NO.IV, TUMKUR IN
R.A.NO.92/2007 (OLD NO.10/2004) DATED 13.10.2009
REVERSING THE JUDGMENT AND DECREE PASSED IN
O.S.NO.81/1995 DATED 3.12.2003 ON THE FILE OF THE
LEARNED I ADDL. CIVIL JUDGE (JR.DN.) AND JMFC, TUMKUR
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RSA No.69/2010 A/W
MISC. CVL. No.308/2010
AND ALL FURTHER PROCEEDINGS IN PURSUANCE OF THE SAME
DURING THE PENDENCY OF THE ABOVE APPEAL, IN THE INTERST
OF JUSTICE AND EQUITY.
THIS APPEAL ALONG WITH MISC.CVL.NO.308/2010
COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
H.G.RAMESH, J. (Oral):
1. This second appeal is by the legal heirs of the original plaintiff.
2. I have heard the learned counsel appearing for the parties and perused the judgments of the two Courts below.
3. The facts in brief are that the original plaintiff had purchased the suit property which is a site measuring 20ft.X32ft. He sold the said property in favour of Banarangappa (who is not a party to the suit) as per the registered sale deed dtd. 27.6.1966 marked in evidence as Ex.D.2. The said Banarangappa sold the site in favour of the defendant (respondent in this appeal) as per the registered sale deed dtd. 16.5.1980 marked in evidence as Ex.D.3. On these facts, the first Appellate Court, by the judgment impugned in this appeal, has set aside the -4- RSA No.69/2010 A/W MISC. CVL. No.308/2010 judgment and decree of the trial Court and dismissed the suit of the plaintiff filed for declaration of title and for grant of injunction in respect of the suit property referred to above.
4. Learned counsel appearing for the appellants submitted that the defendant has admitted in his evidence that he had not purchased the property of the plaintiff and therefore, he submitted that the judgment of the first appellate Court is vitiated. In support of his submission, he relied on a judgment of this Court in Smt. S.V.Kunhima vs. B.N.Viswanath (ILR 1996 KAR 1853).
This contention has been negatived by the first appellate Court with the following reasoning :
"28. The above said depositions of defendant are contrary to the recitals of the sale-deeds. Immediately after execution of sale-deed during 1966 as per Ex.D.2, plaintiff has not retained any property. Under these circumstances he cannot claim declaration of title over suit schedule property. Merely because defendant has stated that he has not purchased this property, that will not give right or ownership to plaintiff and that will not take away the execution of sale-deed. When once plaintiff contended the fraud, as already discussed above, it is his bounden duty to prove the fraud and he ought to make his father and brother as parties to the suit and without that, he cannot claim any relief of declaration or title only against defendant who is the subsequent purchaser."
(Underlining supplied) -5- RSA No.69/2010 A/W MISC. CVL. No.308/2010
5. I find no legal infirmity in the above reasoning of the first appellate Court. In my opinion, no substantial question of law arises for determination in this second appeal. No ground to admit the appeal. The appeal is accordingly dismissed. In view of dismissal of the appeal, Misc. Cvl. No.308/2010 filed for grant of interim stay also stands dismissed.
Appeal dismissed.
Sd/-
JUDGE BNS