Dismissed

Sri T Narayanaswamy v. Smt Ammannamma

Karnataka HC19 Sept 2013RSA/1709/2009

Case brief

AI extract

What is this about?

In a regular second appeal, the High Court of Karnataka allowed the appeal and dismissed the suit instituted by the appellant for declaration and injunction. The Court upheld the dismissal of the suit for failure to establish title and quashed the finding on defendant's possession as unwarranted.

What did the court decide?

The finding on issue No.7 regarding defendant's possession is set aside; the dismissal of the suit by the Courts below is upheld.

Sri T Narayanaswamy Vs Smt Ammannamma — Property and Title | Karnataka HC (2013)

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RSA 1709/09

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 19^TH DAY OF SEPTEMBER, 2013

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BEFORE:

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THE HON’BLE MR. JUSTICE A.S.PACHHAPURE

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REGULAR SECOND APPEAL No.1709 OF 2009

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BETWEEN:

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T. Narayanaswamy, S/o. late Thammannagowda, Aged about 70 years, Halagur, Malavalli Taluk, Mandya District - 571 401. Rep. by P.A. Holder H.T. Srinivasa, S/o. Thammannagowda, Aged about 61 years, R/at Halgur, Malavalli Taluk, Mandya District - 571 401. ... APPELLANT/S [By Sri. A. Nagarajappa, Adv.] AND: Ammannamma, W/o. Thimmegowda, Aged about 80 years, Halagur, Malavalli Taluk, Mandya District - 571 401. ... RESPONDENT/S [By Sri. S.N. Bhat & Sri. M.S. Devaraj, Advs. for C/R.]

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RSA 1709/09

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This RSA is filed u/Section 100 r/w. Order XLII OF CPC, against the Judgment and Decree dated 16.09.2009 passed in R.A. No.88/2006 on the file of the Civil Judge (Sr.Dn.) & JMFC, Malavalli, dismissing the appeal filed against the Judgment and Decree dated 25.08.2005 passed in O.S. No.74/1995 on the file of the Civil Judge (Jr.Dn.), Malavalli.

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This RSA coming on for Final Hearing this day, the Court delivered the following:

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JUDGMENT

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The unsuccessful plaintiff has approached this

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Court in this appeal challenging dismissal of his suit filed for declaration and injunction and also his appeal before the first appellate Court.

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The facts relevant for the purpose of this appeal are as under:

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The parties are referred to as per their rank before the trial Court for the sake of convenience.

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The appellant/plaintiff instituted a suit for declaration of his title to the suit property bearing No.39, V.P.khatha No.28, measuring East-

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RSA 1709/09

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West: 14 ft., North-South: 110 ft. at Halagur, Malavalli Taluk, Mandya District with the boundaries mentioned in the schedule to the plaint. It is the contention of the appellant that the suit property stands in his name and he is in possession of the same. He complains obstruction by the defendant and therefore instituted the aforesaid suit.

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The defendant appeared before the trial Court and filed her written statement denying the allegations made and contended that the plaintiff is not the owner and he is not in possession of the suit property. It is also her contention that she has been in possession of the suit property.

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The trial Court framed the issues on the basis of the pleadings and permitted the parties to lead evidence. The plaintiff examined his general power of attorney holder as P.W.1 and a witness P.W.2 and documents Exs.P1 to 15 were marked in their evidence. The defendant was examined herself as

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RSA 1709/09

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D.W.1 and a witness D.W.2 and documents Exs.D1 to 16

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were marked in their evidence.

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The trial Court after hearing learned counsel for the parties and on appreciation of the material on record, dismissed the suit. Anyhow, it held that the defendant is in possession of the suit property. Aggrieved by the Judgment and Decree, the appellant approached the first appellate Court in R.A. No.88/2006 and the said appeal came to be dismissed on 16.09.2009. Aggrieved by the concurrent findings of the Courts below, the present appeal is filed.

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At the time of admission this Court has raised the following substantial question of law for consideration:

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1. Whether the courts below were justified in holding that the respondent had made out a case for possession when it was found as a fact that the respondent had failed

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RSA 1709/09

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to establish the title as claimed over the suit property?

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1. Whether courts below were justified in not ascertaining whether the respondent’s possession was lawful possession?

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Heard learned counsel for both the parties.

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The perusal of the material placed on

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record would reveal that the plaintiff has produced

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the khata extract at Ex.P5 and it is for the year 1959-60, wherein his name appears in the owners column of the suit property. Ex.P6 is also another khata extract for the year 1961-62, wherein the name of the plaintiff appears in the owners column. But, subsequent to the period after 1961-62 onwards till

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the date of institution of the suit, the plaintiff has not produced any document to show that he has continued to be in possession of the suit property

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as the owner and also is in possession of the same.

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In such a situation, the Court below justified in

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6 RSA 1709/09

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dismissing the suit of the appellant as he did not establish his title to the suit property. The trial

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Court has framed issue No.7 to the effect as to;

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Whether the defendant proves that she is in peaceful possession and enjoyment of the suit schedule property?

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In a suit instituted by the plaintiff seeking the relief of declaration and injunction, the question of framing such an issue does not arise for consideration. In such a suit, it is necessary for the Court to frame only the issues with regard to the title to the plaintiff and his possession and in case if he has failed to establish any of these, then the plaintiff’s suit has to be dismissed. When the defendant has not claimed any relief by filing a counter-claim or otherwise, the question of framing such an issue and giving a finding that the defendant is in possession is unwarranted in the suit filed. The defendant was at liberty to file a

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RSA 1709/09

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counter-claim if he/she had any grievance against the plaintiff. The appreciation of the evidence by the Courts below so far as possession of the defendant is unwarranted and is not required in such a suit instituted by the other party. Therefore, in my considered opinion, the finding arrived at by the Court below on issue No.7 does not deserve to be affirmed.

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In the result, I hold that it was not necessary for the Court below to give any finding in respect of possession of the defendant over the suit property. The finding of the Court below on issue No.7 is unwarranted and is set aside. Hence, the substantial questions of law are answered in negative. Dismissal of the suit by the Courts below is upheld and as the appeal fails, it is accordingly dismissed.

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Sd/JUDGE.

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Ksm*

Sri T Narayanaswamy v. Smt Ammannamma

Case brief

What is this about?

What did the court decide?

Sri T Narayanaswamy v. Smt Ammannamma

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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