Allowed

R Rangaswamy Since Dead by Lrs Gowramma v. Veerabhadraiah S/O Dasappa Since Dead by Lrs

Karnataka HC4 Jan 2021RSA/588/2005

Case brief

AI extract

What is this about?

The High Court allowed the second appeal filed by deceased plaintiff's LRs in a property suit filing matter. Appellants withdrew the appeal with liberty to file a comprehensive suit regarding the disputed passage and title.

What did the court decide?

Appellants permitted to withdraw the appeal with liberty to file a comprehensive suit.

R Rangaswamy Since Dead by Lrs Gowramma Vs… — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF JANUARY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

R.S.A.No.588/2005

BETWEEN:

R RANGASWAMY

SINCE DEAD BY L.RS

1. GOWRAMMA

W/O LATE R RANGASWAMY AGED 68 YEARS.

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2 . NAGARATHNA R D/O LATE R RANGASWAMY AGED ABOUT 46 YEARS.

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3 . SUSHEELA R

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D/O LATE R RANGASWAMY AGED ABOUT 44 YEARS.

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4 . LAKSHMI DEVI R D/O LATE R RANGASWAMY AGED ABOUT 42 YEARS

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5 . MANJULA R

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D/O LATE R RANGASWAMY AGED ABOUT 40 YEARS

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6 . SARVAMANGALA

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@ SHANTHALA

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D/O LATE R RANGASWAMY AGED ABOUT 38 YEARS

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7 . YASHODA R @ ROOPA D/O LATE R RANGASWAMY AGED ABOUT 29 YEARS.

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8 . MANJUNATHA S/O LATE R RANGASWAMY AGED ABOUT 36 YEARS.

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9 . RAGHAVENDRA S/O LATE R RANGASWAMY AGED ABOUT 34 YEARS.

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ALL ARE RESIDING AT DEVANGA STREET, NELAMANGALA TOWN, NELAMANGALA BANGALORE RURAL DISTRICT – 562 123.

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…APPELLANTS

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(BY SRI T SESHAGIRI RAO, ADVOCATE)

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AND:

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1 . VEERABHADRAIAH S/O DASAPPA SINCE DEAD BY L.RS

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1a). SMT.LAKSHMI DEVI W/O LATE VEERABHADRAIAH AGED ABOUT 63 YEARS

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1b). MS.RUDRAMMA D/O LATE VEERABHADRAIAH AGED ABOUT 53 YEARS

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1c). SHIVARUDRAIAH S/O LATE VEERABHADRAIAH AGED ABOUT 48 YEARS

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1d). RUDRAPPA S/O LATE VEERABHADRAIAH SINCE DEAD BY HIS LRs.

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1d(i) SMT.SUNANDAMMA W/O LATE RUDRAPPA AGED ABOUT 48 YEARS.

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1d(ii) SMT.NANDINI D/O LATE RUDRAPPA AGED ABOUT 25 YEARS.

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1d(iii) SRI PAPANNI S/O LATE RUDRAPPA AGED ABOUT 23 YEARS.

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ALL ARE RESIDING AT BEML LAY-OUT, BEHIND 21^ST BMTC DEPOT RAJARAJESHWARI NAGARA BANGALORE – 98.

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1e) VENKATESH S/O LATE VEERABHADRAIAH AGED ABOUT 46 YEARS.

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1f) GOVINDAIAH S/O LATE VEERABHADRAIAH AGED ABOUT 43 YEARS

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ALL ARE RESIDING AT No.126, NEAR KANTEERAVA STADIUM, YESHAWANTHAPURA BANGALORE – 560 022.

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7 . SRINIVASAIAH S/O RUDRAPPA AGED 52 YEARS R/O DEVANGA STREET

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NELAMANGALA TOWN NELAMANGALA – 562 123. …RESPONDENTS

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(BY SRI S RANGASWAMY, ADVOCATE AND SMT.S B RASHMI, FOR C/R1(a-f) AND R2. V/O DATED 27.2.15 SERVICE OF NOTICE TO LRs. OF DEED, R1(d) IS HELD SUFFICIENT)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 6.1.2005 PASSED IN R.A.No.35/1997 ON THE FILE FO THE DISTRICT AND SESSIONS JUDGE/PRESIDING OFFICERFTC-IV, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 6.7.1996 PASSED IN OS No.75/1986 ON THE FILE OF THE MUNSIFF AND JMFC, NELAMANGALA.

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THIS RSA COMING ON FOR ORDERS THIS DAY, THE COURT THROUGH VIDEO CONFERENCE AT BENGALURU DELIVERED THE FOLLOWING:

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JUDGMENT

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The appeal is directed against the judgment and

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decree dated 06-01-2005 passed in R.A.No.35/1997 by the learned Presiding Officer, Fast Track Court-IV and District and Sessions Judge, Bangalore Rural District, Bangalore, wherein the appeal came to be allowed and the judgment and decree dated 06-07-1996 passed in O.S.No.75/1986 by the learned

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Munsiff and JMFC, Nelamangala came to be set aside and vacated the injunction granted.

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The trial court had decreed the suit of the

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plaintiff in O.S.No.75/1986 on 06-07-1996 and the operative portion is as under:

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“The suit of the plaintiff is decreed in part without cost. The defendants are hereby restrained by means of permanent injunction along with their agents, or anybody claiming under them from putting up any construction over 4 feet passage retained by plaintiff out of 23 feet North-South from the northern wall of the plaintiff’s house.”

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In order to avoid confusion and

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overlapping, the parties herein are addressed in accordance with their rankings as stood by them before the trial court.

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The substance of the case of the plaintiff-

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Rangaswamy is that, he had purchased the vacant site

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bearing Khaneshumari No.359 measuring East to West 40 feet and North to South 27 feet. He claims to have purchased the schedule property on 5-5-1965 through a registered sale deed from Hosallaiah and Gangappa. After the purchase, the katha and other records were transferred in favour of the plaintiff from the Municipality. The plaintiff constructed the house using East-West 40 feet and North-South 19 feet and retained 4 feet wide passage for his use for the purpose of reaching toilet towards the northern side. Therefore, the passage is within the property of the plaintiff. Plaintiff also opened the door towards the northern side towards the passage for easy access. The length and breadth of the passage is 4 feet x 40 feet. The plaintiff is using this passage exclusively for himself since the date of construction of the house. The defendants have no right over the schedule property and started interfering with the peaceful

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possession and enjoyment of the schedule property by the plaintiff. Thus, the apprehension of the plaintiff was that the defendant has no title over the schedule property.

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5. The contentions of the defendants are that

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the vendor of the plaintiff had no right, title, interest or possession over the suit schedule property to sell the same to the plaintiff. There is no question of deriving title under his vendor. The 1^st defendant owned the property No.409/1 and 375/1 at Nelamangala. The house of the 1st defendant is old and was constructed about 100 years back it is a mud roofed house. Rain water from the roof of the defendants’ property falls towards the southern side of the house. The defendants ancestors and 1^st defendant have retained 4 to 5 feet of passage towards the southern side of the house in order to repair the house and further for the flow of roof water

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on this passage. The role of second defendant is his

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house is located to the southern side which is a tile roofed house. This passage is required for the purpose

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of repairing the house. The defendants are using the passage from times immemorial and it is an easement of necessity for them.

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On the basis of the pleadings and

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contentions of both the parties, the trial court framed the following issues:

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(i) Whether plaintiff proves that he is in lawful possession and enjoyment of he suit schedule property as on the date of suit?

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(ii) Whether the plaintiff proves the alleged interference by the defendants?

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(iii) What order or decree?

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The learned trial judge was accommodated

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with the oral evidence of PW1-Rangaswamy and documentary evidence of Exs.P1 to Ex.P4 Sketch on behalf of plaintiff and oral evidence of DW1

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Veerabhadraiah, DW2 Sreenivasiah, DW3

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Thirumalaiah and DW4 Arasappa and documentary evidence of Exs.D1 to D18 on behalf of defendants.

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Upon conclusion of the trial, the suit of he plaintiff came to be decreed. Aggrieved by the said judgment and decree, defendants have preferred regular appeal in R.A.No.35/1997 before the learned Presiding Officer, Fast Track Court IV and District and Session Judge, Bangalore. During the pendency of the appeal, plaintiff died and his LRs were brought on record, which came to be allowed on 06-01-2005 and judgment and decree passed by the learned trial Judge in OS..No.75/1986 was set aside and vacated the injunction granted to the plaintiff.

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Being aggrieved by the said judgment and decree, the plaintiff represented by his legal

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representatives have presented this regular second appeal.

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The appeal came to be admitted by this

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Court on 6.3.2007 to consider the following

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substantial question of law:

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“Whether the lower appellate court was justified in reversing the judgment and decree of the trial court when the plaintiff has prima facie shown his tile to the suit schedule property and when admittedly the defendant had no title and he was claiming adverse possession and easement of necessity?”

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The plaintiff Rangaswamy filed a suit against Veerabhadraiah and Srinivasaiah in O.S.No.75/1986 seeking permanent injunction to restrain the defendants or their agents, servants or anybody under them from putting up construction over the passage which belongs to the plaintiff within the site of the plaintiffs house. Defendant No.1-

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Veerabhadraiah died during the pendency of the proceedings before the trial court and his legal representatives were brought on record before the trial court itself. However, the appeal was preferred by Veerabhadraiah son of Dasappa dead by legal representatives and regular defendant No.2 Srinivasaiah. When the matter is pending before the appellate court, plaintiff died and his LRs were brought on record. It is the said appeal that came to be allowed, wherein the judgment and decree passed by the trial court was set aside.

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The appellate judge in its judgment at paragraph 11 has observed as under:

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“In the sale deed the description of the property is given. It was a vacant land bounded by East: road, West: by property Gangappa North by property of Gangappa and government galli and thereafter Dasappa’s house and South by Gangappa’s house measuring east-west 46 feet and North-South 27 feet. After purchasing

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this property plaintiff constructed the house on a measurement of 40 feet x 23 feet and plant Ex.P4 is the approved plan for construction of the house. The constructed area is shown as 23 feet north-south and 40 feet east-west. The disputed passage is marked in red ink towards northern side.”

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At this stage, learned counsel Sri. T.Sheshagiri Rao for the appellants submits that the suit is filed only for bare permanent injunction and both the defendants are dead and in the nature and circumstances of the case, he may be permitted to withdraw the appeal with a liberty to go for a comprehensive suit if he chooses.

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Placing the submission of the learned counsel for the appellants on record, appellants are permitted to withdraw the appeal.

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However, liberty is reserved to the appellants to file a comprehensive suit if they desire so.

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With the above observation, appeal is disposed

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of.

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Sd/JUDGE

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tsn*

R Rangaswamy Since Dead by Lrs Gowramma v. Veerabhadraiah S/O Dasappa Since Dead by Lrs

Case brief

What is this about?

What did the court decide?

R Rangaswamy Since Dead by Lrs Gowramma v. Veerabhadraiah S/O Dasappa Since Dead by Lrs

Case brief

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What did the court decide?

What the court decided

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