Partly allowed

Basanna v. Devendrappa

Karnataka HC14 Jun 2016RSA/620/2004

Case brief

AI extract

What is this about?

Three regular second appeals concerning land boundary, pathways, trees, and bunds were disposed of. The High Court held that a final ex parte decree generally binds subsequent litigants but dismissed one appeal due to lack of res judicata material. It upheld a finding protecting a bund beyond a public pathway in another appeal. In the third, it noted a serious dispute on property identity should h

What did the court decide?

The appeal in RSA No.620/2004 dismissed; cross-appeal in RSA No.723/2004 allowed with protection of bund; appeal in RSA No.621/2004 allowed with leave to file comprehensive suit.

Basanna Vs Devendrappa — Partition | Karnataka HC (2016)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH

¶3

DATED THIS THE 14^TH DAY OF JUNE, 2016

¶4

BEFORE

¶5

THE HON’BLE MR.JUSTICE ANAND BYRAREDDY

¶6

REGULAR SECOND APPEAL NO.620/2004 CONNECTED WITH REGULAR SECOND APPEAL NO.621/2004 REGULAR SECOND APPEAL NO.723/2004

¶7

REGULAR SECOND APPEAL NO.620/2004:

¶8

BETWEEN:

¶9

Basanna S/o Apparaya Madiyal Age: Major, Occupation: Agriculture, Resident of village Savaleshwara, Taluk: Aland, District: Gulbarga.

¶10

… APPELLANT

¶11

(Shri N.S. Deshpande, Advocate)

¶12

AND:

¶13

Devendrappa S/o Saibanna Since deceased through his LR’s

¶14

a) Shantappa S/o Devendrappa

¶15

b) Saibannappa S/o Devendrappa (both are residents of Savaleshwar Taluk: Aland)

¶16

¶17

c) Padmavathi Bai W/o Manikchand, Age: Major, Resident of Asifkanj, District: Gulbarga.

¶18

d) Sonabai W/o Shivalal Age: Major, Resident of Mashal Kiniji, Taluk: Aland, District: Gulbarga. … RESPONDENTS

¶19

[Shri B.V. Jalde, Advocate for Respondents No.1(a) to (d)]

¶20

This Regular Second Appeal is filed under Section 100 of Civil Procedure Code��1908, against the Judgment and Decree dated 19.03.2004 passed in R.A.No.89/2003 on the file of the Civil Judge (Senior Division) Aland dismissing the appeal confirming the Judgment and Decree dated 18.09.2000 passed in Original Suit No.253/1989 on the file of the Civil Judge (Junior Division) Aland.

¶21

REGULAR SECOND APPEAL NO.621/2004:

¶22

BETWEEN:

¶23

Basanna S/o Apparaya Madiyal Age: Major, Occupation: Agriculture, Resident of village Savaleshwara, Taluk: Aland, District: Gulbarga.

¶24

… APPELLANT

¶25

(Shri N.S. Deshpande, Advocate)

¶26

AND:

¶27

Devendrappa S/o Saibanna Since deceased through his LR’s

¶28

¶29

a) Shantappa S/o Devendrappa

¶30

b) Saibannappa S/o Devendrappa (both are residents of Savaleshwar Taluk: Aland)

¶31

c) Padmavathi Bai W/o Manikchand, Age: Major, Resident of Asifkanj, District: Gulbarga.

¶32

d) Sonabai W/o Shivalal Age: Major, Resident of Mashal Kiniji, Taluk: Aland, District: Gulbarga. … RESPONDENTS

¶33

[Shri B.V. Jalde, Advocate for Respondents No.1(a) to (d)]

¶34

This Regular Second Appeal is filed under Section 100 of Civil Procedure Code��1908, against the Judgment and Decree dated 19.03.2004 passed in R.A.No.88/2003 on the file of the Civil Judge (Senior Division) Aland, dismissing the appeal confirming the Judgment and Decree dated 18.09.2000 passed in Original Suit No.69/1996 on the file of the Civil Judge (Junior Division) Aland.

¶35

REGULAR SECOND APPEAL NO.723/2004:

¶36

BETWEEN:

¶37

Basanna S/o Apparaya Madiyal Age: Major, Occupation: Agriculture, Resident of village Savaleshwara,

¶38

¶39

Taluk: Aland, District: Gulbarga.

¶40

… APPELLANT

¶41

(Shri N.S. Deshpande, Advocate)

¶42

AND:

¶43

Basanna S/o Gurappa Marbe Age: Major, Occupation: Agriculture, Resident of village Savaleshwar, Taluk: Aland, District: Gulbarga.

¶44

(Shri Venkatesh C. Mallabadi, Advocate for Shri Ameet Kumar Deshpande, Advocate)

¶45

This Regular Second Appeal is filed under Section 100 of Civil Procedure Code��1908, against the Judgment and Decree dated 30.03.2004 passed in R.A.No.38/2003 on the file of the Civil Judge (Senior Division) Aland, dismissing the appeal setting aside the Judgment and Decree dated 01.07.1998 passed in Original Suit No.15/1989 on the file of the Civil Judge (Junior Division) Aland.

¶46

These appeals coming on for hearing this day, the Court delivered the following:

¶47

J U D G M E N T

¶48

These three appeals have been clubbed together, since the appellant is one and the same in all these three appeals. However, there are minor variations, or rather the appeals

¶49

¶50

pertain to three different suits and hence, the background may briefly be mentioned.

¶51

The appellant in RSA No.723/2004 had originally filed O.S.No.15/1989 against one Basanna S/o Gangappa claiming

¶52

that he was the owner of land bearing Sy.No.31/3 of Savaleshwar village and that the neighbourer was the defendant and since the defendant was seeking to interfere with a portion of the land along the length of the eastern boundary of his land, claiming that there was a pathway running along the boundary, connecting Hirolli road to Aland, was denied by the plaintiff in filing the suit for a declaration and injunction. The defendant had entered appearance and engaged counsel but did not choose to file any written statement. The suit is said to have been decreed, holding that the appellant herein was indeed the owner of land bearing Sy.No.31/3 however there was a bund existing in the pathway or cartway along the eastern boundary of the appellant’s land. It transpires that an appeal was filed by the

¶53

¶54

plaintiff to the lower appellate court. The defendant in turn had filed a cross appeal challenging the injunction granted in favour of the appellant restraining the defendant from interfering with his property. The Lower Appellate Court had dismissed the appeal and had allowed the cross appeal. It is this which is under challenge in the appeal in RSA No. 723/2004.

¶55

RSA No.620/2004 is filed by the appellant challenging the decree in O.S.No.253/1989 filed by one Devendrappa S/o Saibanna against the present appellant, which was filed seeking a declaration that there was a pathway running along the eastern boundary of the appellant’s land, separating the said plaintiff’s land and that of the appellant. That suit was decreed after contest, in the year 2000; against which an appeal was filed by the appellant herein before the Lower Appellate Court which stood dismissed. As against which, the appeal in RSA No.620/2004 is filed.

¶56

¶57

In RSA No.621/2004 the respondent had filed a suit in O.S.No.69/1996 seeking to restrain the appellant herein from cutting and removing trees which were said to be existing on a bund. The suit was for permanent injunction. The suit having been contested, injunction was granted in favour of respondents herein restraining the appellant from cutting and removing the trees. The appeal preferred against the said suit has been dismissed by the Lower Appellate Court. Hence, the present second appeal.

¶58

These appeals having been taken up together, this Court has framed a substantial question of law by its order dated 03.11.2015, as to whether the judgment and decree of the lower appellate Court is vitiated, in ignoring the previous judgment and decree passed in O.S.No.54/1983 between the same parties.

¶59

It is noticed that it is in O.S.No.253/1989 that such a plea was set up namely, that there was already a decree against the respondent in O.S.No.54/1983 and that it was an exparte decree

¶60

¶61

in respect of the very controversy as to whether or not there existed a path way along the eastern boundary of the appellant’s land and it has been decided in his favour. However, it was an exparte decree and the trial Court has opined that notwithstanding the fact that the defendant having been served and having entered appearance through counsel, had not chosen to contest the suit, however the plaintiff having tendered evidence in support of his case and the suit having been decreed, exparte, would not however bind the respondent the appellant herein, since there was no adjudication on merits. Hence it would not bind the respondents who have succeeded in a subsequent suit namely O.S.No.253/1989, after a full-fledged trial and therefore there was a complete adjudication and hence the exparte decree that may have been obtained in respect of the same controversy, would not bind the party. This view of the Courts below is erroneous and the substantial question of law would have to be answered in the affirmative, as even if it was an exparte decree, if the same had attained finality, it is as much

¶62

¶63

a decree and would bind the defendant and it cannot be said that merely because it was not contested, it would not be binding.

¶64

But yet again, whether the said judgment operated as res judicata in respect of the subsequent suit filed by the respondent in O.S.No.253/1989 would have to be decided by reference to the circumstance whether it was between the same parties, with reference to the pleadings, to ensure that the facts and circumstances alleged and contested were identical with the issues framed in the suit and the findings arrived at by the Court below. In ensuring that the very same issues of fact and law had been addressed in the earlier suit and further circumstance that the learned Counsel for the appellant candidly submits that apart from producing the order sheet in the case in O.S.No.54/1983 there is no other material produced, it would be difficult for this Court to conclude that the subsequent suit filed by the respondent in O.S.No.253/1989 was barred by res judicata and this is especially so, when it was not an issue that

¶65

¶66

was tested before the trial Court, by reference to the relevant material which was significant in arriving at a finding as to whether the suit was barred by res judicata . Therefore, the point would have to be answered partly in the affirmative in that the trial Court may not be correct in its opinion that an exparte decree would not bind the respondents even though such an exparte decree has attained finality.

¶67

Further, the requirement in order that the appellant should succeed in the present appeal namely, that the subsequent suit filed by the respondent was barred by res judicata cannot be answered in his favour without the benefit of the necessary material. Consequently, the appeal in RSA No.620/2004 stands dismissed.

¶68

In so far as the appeal in RSA No.723/2004 is concerned, it is to be noticed that the trial Court having declared that there was indeed a path way separating the property of the plaintiff and the defendant, has thought it fit to grant an injunction in so

¶69

¶70

far as the alleged interference by the defendant, apart from the path way, with the plaintiff’s property. The plaintiff having filed an appeal questioning the finding of the trial Court as to the existence of the path way before the lower appellate Court, the defendant who is the respondent herein had also filed a cross appeal questioning the grant of injunction against him restraining him from interfering with the plaintiff’s property. Apart from claiming the use of the path way, the defendant had not sought to interfere with any portion of the plaintiff’s property. Having granted an injuction in so far as interference with the bund that existed beyond the path way in the plaintiff’s property and the lower appellate Court having dismissed the appeal and having allowed the cross appeal, the present appeal in RSA No.723/2004 is filed. Since the said appeal though does not raise any substantial question of law, having been clubbed along with RSA No.620/2004, the fact that it is not in dispute that the path way was claimed by the plaintiff as his property and since the Court has held that he was indeed the

¶71

¶72

owner of the land but there existed a path way which was used by the general public, the plaintiff could not also be deprived of the bund, which is admittedly beyond the path way and therefore the injunction granted by the trial Court was to protect interference, if any, by the defendant with the bund and consequently, the lower appellate Court having allowed the cross appeal and therefore having set aside the injunctory relief granted in favour of the plaintiff, was bad in law. Though there is no restraint for the defendant to utilize the path way, the further relief of allowing him to interfere with the bund of the plaintiff does not arise. Consequently the plaintiff ought to be protected with injunctory relief of preventing interference with any portion, other than the path way, of his property. To that extent it is made clear that the defendant shall not interfere with any portion of the plaintiff’s property including any bund beyond the path way.

¶73

¶74

In so far as RSA No.621/2004 is concerned, it again arises out of a suit for bare injunction filed by the respondent seeking a restraint on the appellant from cutting and removing the trees which are said to be existing in the land bearing Survey No.27 which exclusively belongs to the respondentplaintiff therein. However, it was disputed that the bund existed in land bearing Survey No.27 and it was contended by the appellant that the bund actually existed in Survey No.31/3. The suit being one for bare injunction, the Court ought to have relegated the parties to a more comprehensive suit since there was a serious dispute about the location of the bund and identity of the same. The Court has proceeded to decree the suit in favour of the respondent herein who was the plaintiff therein. An appeal preferred against the said judgment and decree has been dismissed. Therefore, the second appeal. This appeal does not give rise to any substantial question of law, except that in a suit for bare injunction, if there is a serious dispute about the identity and location of the property, it is a settled principle

¶75

¶76

that the parties ought to be relegated to a comprehensive suit. Therefore, if the bund is actually in existence in the appellant’s property and a suit for bare injunction has been filed restraining the appellant from cutting and removing the trees on the bund which may in fact exist in his property, no prejudice would be caused to the respondents if the appellant is now permitted to file a comprehensive suit laying claim to the bund and the ownership of the trees. The parties shall be restrained from cutting and removing trees, pending any such final adjudication. Since in fact it is also the relief that was granted in favour of the respondent, the status-quo to continue, would not effect either of the parties and since the appellant would be faced with the bar of limitation, if he should file such a suit, without leave of this Court, this Court, having regard to the controversy and the manner in which the suit was entertained, though the parties ought to have been relegated to a comprehensive suit, grants leave to the appellant to file such a suit if he is so inclined, within three months from today, failing

¶77

¶78

which the bar of limitation would apply to any such proposed

¶79

suit.

¶80

In terms of the above, these appeals are disposed of.

¶81

��

¶82

sdu/swk

Basanna v. Devendrappa

Case brief

What is this about?

What did the court decide?

Basanna v. Devendrappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Sidram @ Sidaraya S/O Vithoba Ingalagi Vs Sri Mukund Adoptive S/O Gurubal Ingalagi

Nagendrappa S/O Rajappa Vs the State through

Malagondappa S/O Basawantraya Andani Vs the State of Karnataka

Shivagondappa Vs Iragondappa

Shanta Vs Mahantesha

Praveen S/O Basavaraj Sappanna Vs the State of Karnataka