The High Court
Case Details
- 1 - NC: 2025:KHC:13250-DB RFA No. 2487 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR JUSTICE K.SOMASHEKAR AND THE HON'BLE MR JUSTICE VENKATESH NAIK T REGULAR FIRST APPEAL NO.2487 OF 2024 (DEC/INJ) BETWEEN: SMT. THATHAMMA W/O. SRI ANANDAPPA AGED ABOUT 49 YEARS RESIDING AT NO.93 3RD CROSS, BEHIND GANESHA TEMPLE OM SHAKTHI TEMPLE, SANJEEVININAGAR HEGGANAHALLI CROSS, VISHWANEEDAM POST BENGALURU-560 091. (BY SRI HARSHA KUMAR GOWDA H.R., ADVOCATE) …APPELLANT AND: Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: High Court of Karnataka 1. SRI PRETHAM G. HEBBAR S/O. SRI S. GANESH HEBBAR AGED ABOUT 27 YEARS RESIDING AT NO.41 3RD MAIN ROAD, 2ND STAGE NEW INCOME TAX LAYOUT, CHANDRA LAYOUT BENGALURU-560 072. 2. SRI ANANDA @ ANANDAPPA AGED ABOUT 45 YEARS RESIDING AT NO.93, 3RD CROSS BEHIND GANESHA TEMPLE OM SHAKTHI TEMPLE, SANJEEVININAGAR HEGGANAHALLI CROSS, VISHWANEEDAM POST BENGALURU-560 091. (BY SRI G. CHANDRASHEKARAIAH, ADVOCATE, FOR R-1, & SRI NARAYANA S., ADVOCATE, FOR R-2) …RESPONDENTS - 2 - NC: 2025:KHC:13250-DB RFA No. 2487 of 2024 THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER XLI, RULE 1 OF THE C.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 20-12-2023 PASSED IN ORIGINAL SUIT NO.1347 OF 2019 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DECREEING THE SUIT FOR DECLARATION AND INJUNCTION. THIS REGULAR FIRST APPEAL IS COMING ON FOR FURTHER ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR and HON'BLE MR JUSTICE VENKATESH NAIK T ORAL JUDGMENT (PER: HON'BLE MR JUSTICE VENKATESH NAIK T.) The appellant has filed this appeal challenging the judgment and decree dated 20-12-2023 in Original Suit No.1347 of 2019 passed by the learned Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru, whereby the trial
Legal Reasoning
Court decreed the suit of the plaintiff and declared the plaintiff as the absolute owner of the suit schedule property by virtue of the registered Sale Deed dated 4-7-2019 and also granted mandatory injunction against the defendants with a direction to remove the structure in the suit schedule property and hand over the vacant possession of the suit schedule property to the plaintiff within six months, failing which, the plaintiff is at - 3 - NC: 2025:KHC:13250-DB RFA No. 2487 of 2024 liberty to take recourse of law to get the possession of the suit schedule property. 2. For the purpose of convenience, the parties are referred to as per their rankings before the trial Court. The appellant is defendant No.1, respondent No.1 is the plaintiff and respondent No.2 is defendant No.2. 3. The brief facts of the plaintiff are as under: The plaintiff had filed a suit for declaration to declare him as absolute owner of the suit schedule property bearing site No.3, BBMP Ward No.72, Assessment No.76, Herohalli, Yeshwanthpur Hobli, measuring East to West 40 feet and North to South 30 feet, totally measuring 1200 square feet and to further declare that any other documents or deeds made in the pursuance of the Sale Deed are null and void and not binding on the plaintiff. The plaintiff also sought for mandatory injunction directing defendant No.1 to demolish and remove the super structure put up by him over the suit schedule property at defendants cost. - 4 - NC: 2025:KHC:13250-DB RFA No. 2487 of 2024 It is the case of the plaintiff that the land bearing Survey No.76 measuring 2 acre and 30 guntas originally belongs to one Thopaiah, who had purchased the said property under registered Sale Deed dated 11-2-1985 and formed the sites. One Manjunath Ithal was the GPA holder of Thopaiah, who had sold the suit schedule property in favour of the plaintiff under registered Sale Deed dated 4-7-2019 and put in possession of the suit schedule property. Hence, the plaintiff is in peaceful possession and enjoyment of the suit schedule property since from the date of the Sale Deed. Later, the plaintiff constructed the compound wall and shed in the suit schedule property. The plaintiff kept on visiting the suit schedule property twice in a month. Such being a case, on 22-7-2019, when he visited the suit schedule property, he found that the defendants, by demolishing the compound wall and shed, had undertaken construction of building in the suit schedule property. Soon after noticing the said act of the defendants, the plaintiff approached the concerned Police and intimated the illegal act of the defendants to them. Despite it, the Police have not taken any action. The defendants have interfered with the peaceful possession and enjoyment of the plaintiff over the suit schedule - 5 - NC: 2025:KHC:13250-DB RFA No. 2487 of 2024 property. Hence, the plaintiff filed a suit for declaration and other consequential reliefs. 4. After initiation of the suit before the trial Court, defendant Nos.1 and 2 appeared through their counsel, but they neither filed any written statement, nor did they cross- examine PW1. Thus, cross-examination of PW1 was taken as 'Nil' and thereafter, the matter was posted for defendants evidence. Despite of which, the defendants have not come forward to lead their evidence and hence, the defendants evidence was taken as 'Nil'. 5. On the basis of pleadings of the parties, the trial Court framed the following issues: 1. Whether the plaintiff proves that he has purchased the suit schedule property through registered sale deed dated 04.07.2019 and thereby he became the absolute owner of the suit schedule property? 2. Whether the plaintiff proves that the defendants by demolishing the compound wall and shed constructed by the plaintiff in the suit schedule property have undertaken construction of new building in the suit property? - 6 - NC: 2025:KHC:13250-DB RFA No. 2487 of 2024 3. Whether the plaintiff is entitled for the relief of declaration? 4. Whether the plaintiff is entitled for the relief of mandatory injunction as sought for? 5. What Order or Decree? 6. The trial Court, after considering the oral and documentary evidence, answered Point Nos.1 to 4 in affirmative and ultimately, the trial Court decreed the suit of the plaintiff and declared the plaintiff as the absolute owner of the suit schedule property by virtue of registered Sale Deed dated 4-7-2019 and hence, granted mandatory injunction to remove against the defendants with a direction to remove the structure in the suit schedule property and hand over vacant possession of the suit schedule property to the plaintiff. 7. Aggrieved by the judgment and decree passed by the trial Court, defendant No.1 has filed the present appeal. 8. Learned counsel for the appellant/defendant No.1 has contended that defendant No.1 had no knowledge about the pendency of the proceedings. Though she had engaged the - 7 - NC: 2025:KHC:13250-DB RFA No. 2487 of 2024 services of an Advocate, but the Advocate has not informed her about the pendency of the proceedings to actively participate in the proceedings to oppose the claim of the plaintiff. The Advocate has not filed written statement and has not cross-examined the plaintiff. Except filing vakalatnama, no progress has been made by the Advocate on record. The suit schedule property belongs to defendant No.1 and therefore, question of decreeing the suit of the plaintiff on the face of record would cause serious dispute regarding ownership of the property for having purchased the same from one
Legal Reasoning
Sri Balakumar Swamy, S/o H.N. Huchegowda. Therefore, the very claim is seriously disputed. Defendant No.1 has filed an independent suit in Original Suit No.1610 of 2019 on the file of II Additional Civil Judge, Bengaluru Rural District, Bengaluru, in which she has sought for injunction against the plaintiff and obtained order of injunction by order dated 30-11-2019, the same has been extended by subsequent order dated 29-10-2024 and the next date of hearing is fixed on 4-12-2024. On the face of such order, the plaintiff has not brought to the notice of this Court, in which event, the judgment and decree could not have been passed. There is a - 8 - NC: 2025:KHC:13250-DB RFA No. 2487 of 2024 manifest error in the judgment and decree passed by the trial Court and it has been passed in the absence of defendant No.1 and it is an ex parte order and hence, the same is not sustainable in law. The judgment and decree is passed without giving any opportunity to defendant No.1 to say in the matter. The judgment and decree is passed without the knowledge of the Advocate on record and defendant No.1 should not suffer on the fault of the Advocate. In the absence of any facts and evidence in support of the plaintiff, the decree cannot be passed in favour of the plaintiff. Hence, on all these grounds, the learned counsel prayed to allow the appeal. 9. Learned counsel for respondent No.1/plaintiff has contended that the plaintiff becomes the absolute owner of the suit schedule property by virtue of registered Sale Deed vide Ex.P2 and he has been put in possession of the suit schedule property. The plaintiff has been paying taxes to the concerned Authority vide Exs.P3 and P14. However, prior to initiation of the suit, i.e. on 22-7-2019, the defendants trespassed the suit schedule property. Hence, the plaintiff lodged a complaint vide Ex.P15. The Police issued endorsement vide Ex.P16 and registered an F.I.R. in Crime No.271 of 2019. Considering the - 9 - NC: 2025:KHC:13250-DB RFA No. 2487 of 2024 oral and documentary evidence on record, the trial Court decreed the suit of the plaintiff and the plaintiff is declared as the absolute owner of the suit schedule property. Thereby, ordered for vacation of the defendants from the suit schedule property. In this regard, the learned counsel for the plaintiff relied on certified copy of spot mahazar dated 7-12-2024 and the certified copy of the memo dated 9-12-2024 for having taken the physical possession of the suit schedule property under delivery warrant in execution proceedings. Learned counsel also furnished certified copy of the affidavit filed by the plaintiff dated 13-12-2024 stating that he has taken physical possession of the suit schedule property through the Court in Execution Petition and to that extent, he has produced photographs and compact disk for having taken the possession under execution proceedings in Execution Petition No.62 of 2024 on the file of the learned Senior Civil Judge, Bengaluru Rural District, Bengaluru, arising out of Original Suit No.1347 of 2019. He further submits that since delivery warrant has been executed and the plaintiff has taken possession of the suit schedule property, nothing remains in the matter and hence, - 10 - NC: 2025:KHC:13250-DB RFA No. 2487 of 2024 the appeal filed by the appellant/defendant No.1 is liable to be dismissed. 10. After hearing the learned counsel for the parties and perusing the material available on record, the points that would arise for our consideration in this appeal are: I. Whether the plaintiff/respondent No.1 proved that he purchased the suit schedule property under registered Sale Deed dated 4-7-2019 and thus, became the absolute owner of the suit schedule property? II. Whether the trial Court is justified in decreeing the suit in favour of the plaintiff/respondent No.1 and hence, no interference is called for? III. Whether defendant No.1/appellant proved that she purchased the suit schedule property under registered Sale Deed dated 16-2-2019 and thus, became the absolute owner of the suit schedule property? IV. Whether defendant No.1/appellant has made out sufficient grounds to remand the matter for fresh consideration? V. What order or decree? - 11 - NC: 2025:KHC:13250-DB RFA No. 2487 of 2024 Point Nos.I to III: 11. It is the specific case of the plaintiff/respondent No.1 that he is the absolute owner in possession and enjoyment of the suit schedule property. One Thopaiah purchased land bearing Survey No.76 measuring 2 acre and 30 guntas from one Huchaiah under registered Sale Deed dated 11-2-1985 and in the said land, Thopaiah formed sites. In turn, Thopaiah executed GPA in favour of his agent, by name Manjunath Ithal, who in turn sold the suit schedule property in favour of the plaintiff under registered Sale Deed dated 4-7-2019. 12. In order to establish the said aspect, the plaintiff examined on oath as PW1 and reiterated the plaint averments in his chief-examination. In support of his oral evidence, he relied upon Ex.P1-GPA, executed by Thopaiah in favour of Manjunath Ithal, Ex.P2-registered Sale Deed dated 4-7-2019 executed by GPA, Manjunath Ithal, in favour of the plaintiff, Exs.P3 to 14-tax paid receipts, Exs.P15 and 16-copies of the complaint and endorsement issued by the Police, Exs.P17 to 20-Encumbrance Certificates, Ex.P21-'B' khata Certificate, Ex.P22-F.I.R. in Crime No.271 of 2019 and Ex.P23-copy of the police complaint. - 12 - NC: 2025:KHC:13250-DB RFA No. 2487 of 2024 13. Defendant No.1/appellant did not file the written statement, nor adduced any evidence. Hence, the trial Court after hearing the learned counsel for the plaintiff and considering material available on record, decreed the suit and declared the plaintiff as the absolute owner of the suit schedule property by virtue of the Sale Deed dated 4-7-2019 and also directed the defendants to remove structure in the suit schedule property and to hand over the vacant possession of the same to the plaintiff. 14. By virtue of the judgment and decree passed in Original Suit No.1347 of 2019, the Executing Court issued delivery warrant in Execution Petition No.62 of 2024 and accordingly, on 7-12-2024, the plaintiff has taken possession of the suit schedule property. 15. In this case, according to the plaintiff, the plaintiff purchased the suit schedule property from original vender, Thopaiah through his GPA, Manjunath Ithal. On the other hand, according to defendant No.1, one Chaluvaiah was the owner of the suit schedule property and he got the suit schedule property under partition deed dated 10-8-2016, who in turn - 13 - NC: 2025:KHC:13250-DB RFA No. 2487 of 2024 sold the suit schedule property to Balakumar Swamy under registered Sale Deed dated 7-10-2016 for a sum of Rs.20,35,000/-. Later, Balakumar Swamy sold the suit schedule property in favour of defendant No.1/appellant under registered Sale Deed dated 16-2-2019 for total sale consideration of Rs.27,24,000/-. 16. In fact, one Huchaiah was the original owner of land bearing Survey No.76 of Herohalli, Yeshwanthpur Hobli, who sold land measuring 2 acre and 30 guntas in favour of Thopaiah under registered Sale Deed dated 11-2-1985. Thopaiah formed sites and residential layout in the said land. Thus, Thopaiah executed registered Sale Deed dated 4-7-2019 in favour of the plaintiff/respondent No.1 through his GPA, Manjunath Ithal. However, it is not clear in the contention of defendant No.1/appellant as to how one Chaluvaiah and his brother, Bettaswamy, acquired the suit schedule property and no material is placed on record in that regard. Further, defendant No.1 has not placed any record to show that there was partition between Chaluvaiah and his brother, Bettaswamy. On the other hand, the plaintiff furnished his title deed and the sources of title. Further, subsequent to the judgment and decree - 14 - NC: 2025:KHC:13250-DB RFA No. 2487 of 2024 passed in Original Suit No.1347 of 2019, the plaintiff filed Execution Petition No.62 of 2024. Defendant No.1 did not raise any objection or protest in the Execution Petition. Hence, the delivery warrant has been executed in favour of the plaintiff and the decree passed in Original Suit No.1347 of 2019 has been satisfied. Point No.IV: 17. Learned counsel for the appellant/defendant No.1 contended that since defendant No.1 did not contest the suit before the trial Court, an opportunity may be granted to her by remanding the matter for fresh consideration. In order to remand the matter back to the trial Court for fresh consideration, it is just and necessary to analyse Order XLI, Rule 23 of the Code of Civil Procedure, 1908 (for short, 'CPC'), which read as under: "Rule 23. Remand of case by Appellate Court.—: Where the Court from whose decree an appeal is preferred
Decision
has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried - 15 - NC: 2025:KHC:13250-DB RFA No. 2487 of 2024 in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand." 18. Further, as per Order XLI, Rule 23A of CPC, the Appellate Court may remand a case, where it consider necessary to do so in the interest of justice. A conjoint reading of Order XLI, Rules 23, 23A and 24 of CPC brings forth the scope as also contours of the powers of remand that, when the available evidence is sufficient to dispose of the matter, the proper course for this Court is to follow the mandate of Order XLI, Rule 24 of CPC and to determine the appeal of the appellant, whether it requires remand or not. It is only in this circumstance, where the decree in challenge is reversed in appeal and a re-trial is necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be - 16 - NC: 2025:KHC:13250-DB RFA No. 2487 of 2024 passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. 19. It is admitted fact that the appellant/defendant No.1 has already filed the suit in Original Suit No.1610 of 2019 before the trial Court and the same is pending consideration. Since the title of the appellant is under cloud, she may seek appropriate relief in pending Original Suit No.1610 of 2019 and hence, the question of remanding the present appeal would not arise. 20. The trial Court, after considering the oral and documentary evidence on record, has rightly decreed the suit of the plaintiff and hence, no interference is called for in that regard. Point No.V: 21. In view of the above discussions, we proceed to pass the following: O R D E R i. The appeal filed by defendant No.1 is dismissed. - 17 - NC: 2025:KHC:13250-DB RFA No. 2487 of 2024 ii. The judgment and decree dated 20-12-2023 in Original Suit No.1347 of 2019 passed by the learned Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru, is hereby confirmed. iii. No order as to costs. In view of the dismissal of the main appeal, pending applications do not survive for consideration and accordingly, they are also dismissed. Sd/- (K.SOMASHEKAR) JUDGE Sd/- (VENKATESH NAIK T) JUDGE KVK List No.: 1 Sl No.: 24