Dismissed

Nanjegowda, Since Dead v. Jayamma

Karnataka HC16 Feb 2022RSA/675/2012

Case brief

AI extract

What is this about?

This second appeal challenges a first appellate order granting permanent injunction to a plaintiff who claimed title to land, despite a prior decree relied upon being against a deceased person and held to be a nullity. The High Court upheld the injunction based on settled possession.

What did the court decide?

Second appeal dismissed; permanent injunction in favour of respondent upholds.

Nanjegowda, Since Dead Vs Jayamma — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF FEBRUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S. KAMAL

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RSA No. 675 OF 2012(DEC/INJ)

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BETWEEN:

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NANJEGOWDA, SINCE DEAD REPRESENTED BY HIS LR'S

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1a) SMT CHANDRAMMA W/O LATE NANJEGOWDA AGED ABOUT 57 YEARS R/O HULLIKERE VILLAGE

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HALEBEEDU HOBLI

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BELUR TALUK

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HASSAN DIST - 573 115.

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1b) SHANTH KUMAR H.N. S/O LATE NANJEGOWDA AGED ABOUT 35 YEARS R/O HULLIKERE VILLAGE

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HALEBEEDU HOBLI

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BELUR TALUK

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HASSAN DIST - 573 115.

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1c) H.N. SHAKUNTHALA D/O LATE NANJEGOWDA AGED ABOUT 33 YEARS

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R/O HULLIKERE VILLAGE HALEBEEDU HOBLI

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BELUR TALUK

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HASSAN DISTRICT -573 115.

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(SINCE DEAD, REPRESENTED BY LR'S V/O DATED:01.06.2017

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... APPELLANTS

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(BY SRI. VINAYAKA B., FOR SRI. SUBRAMANYA R., ADVOCATE)

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AND:

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JAYAMMA W/O SHIVAMALLEGOWDA AGED ABOUT 55 YEARS HULIKERE VILLAGE HALEBEEDU HOBLI BELUR TALUK - 573 115.

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…RESPONDENT

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(BY SRI. K. KRISHNASWAMY, ADVOCATE)

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THE REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 24.08.2011 PASSED IN R.A.NO.2/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, BELUR, PARTIALLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:28.10.2009 PASSED IN O.S.NO.84/2003 ON THE FILE OF THE CIVIL JUDGE (JR.DN) BELUR.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The present appeal is filed by the

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appellants/defendants aggrieved by the judgment and order dated 24.08.2011 passed in R.A.No.2/2011 on the file of the Senior Civil Judge, Belur (hereinafter referred to as the 'first appellate court'), in and by which, the First Appellate Court partly allowing the appeal of the respondent/plaintiff set aside the judgment and decree dated 28.10.2009 of dismissal passed in O.S.No.84/2003 on the file of the Civil Judge (Jr.Dn.) Belur, (hereinafter referred to as the 'trial Court') and granted decree of

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permanent injunction, restraining the

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appellants/defendants permanently from interfering with the possession and enjoyment of the suit schedule property by the plaintiff till her dispossession as per law.

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Smt.Jayamma the plaintiff filed the above suit

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for declaration that she is the absolute owner in possession of the suit schedule property being dry land measuring 19 guntas in Sy.No.58/AP on the premise that her father -Hampegowda had acquired the same as his share in a partition that had taken place in the year 1960. That the said Hampegowda died on 11.05.1993 leaving behind him, his widow -kamalamma and three daughter, namely, Jayammaplaintiff herein, Ganagamma and Gurupadhamma. That there was a partition on 10.02.1985 in which the suit schedule property was allotted to the share the plaintiff. As such,

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she has been in possession and enjoyment of the same as owner thereof. That the plaintiff learnt about an execution proceedings in Execution Petition No. 65/1998 on the file of the Trial Court filed by the defendant

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seeking possession of the suit schedule property on the basis of a decree dated 15.06.1998 passed in RSA No.669/1991 to which neither the plaintiff nor her mother and sisters were parties. Further, Hampegowdathe father of the plaintiff, who was arraigned as a party to the said RSA No.669/1991 had passed away on 11.05.1993. That the defendant being a relative of Hampegowda had willfully managed to obtain the aforesaid decree against the deceased -Hampegowda without bringing the legal representatives on record. That the decree passed against the dead person is nullity and does not bind the plaintiff or the other legal representatives of Hampegowda. This constrained the plaintiff to file the above suit for declaration that she is the absolute owner in possession of the suit schedule property and also for declaration that a decree dated 15.06.1998 passed in RSA No.669/1991 as null and void and not binding on her.

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The defendant filed written statement

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contending interalia that the counsel for Hampegowda

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ought to have reported his death during the pendency of the appeal. As such, no fault could be found in the decree passed in RSA No.669/1991. That the suit schedule property belonged to husband of one Gowramma and the said Gowramma had fostered the defendant during her lifetime and after death of her husband, she had bequeathed the suit schedule property in his favour by way of Will. That the suit in O.S.No.377/1974 was filed by the defendant for declaration and possession in respect of 1 acre of land in Sy.No.58/3 and 38 guntas of land in Sy.No.58/4 against Kalegowda, Halegowda, Hampegowda, Basavegowda and others which was dismissed. The matter was carried in an appeal in R.A.No.101/1984, which was also dismissed resulting in the defendant filing the second appeal in RSA No.669/1991. The High Court allowed the said RSA No.669/1991 and decreed the suit of the plaintiff and directed the aforesaid persons including the father of the plaintiff to handover the possession of the property. Accordingly, an execution petition in Execution Petition

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No.65/1998 was filed. As such, he sought for dismissal of the suit.

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The Trial Court based on the pleadings framed

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issues and recorded evidence. On appreciation of pleadings and evidence, dismissed the above suit in O.S.No.84/2003 by its judgment and decree dated 10.7.2003. Aggrieved by the same, the plaintiff filed a regular appeal in RA No.2/2011 on the file of first appellate court.

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The First Appellate Court by its judgment and order dated 24.08.2011 while accepting the contentions of the plaintiff with regard to the judgment in RSA No.669/1991 being a nullity for having passed against

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the dead person, has however declined to grant relief of declaration in favour of plaintiff. The First Appellate Court taking into consideration of the fact that the very decree in RSA No.669/1991 was one for possession and the said decree having been held to be not binding on the plaintiff, the plaintiff is deemed to be continuing in settled possession of the suit land. Thereby partly

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allowed the appeal granting permanent injunction, resulting in appellant/defendant filing the present second appeal.

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Learned counsel for the appellant/defendant

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reiterating grounds urged in the appeal memorandum submitted that;

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(a) the first appellate court while declined to grant the main relief of declaration of title of the plaintiff ought not to have granted consequential relief of permanent injunction merely relying upon the entries in the revenue records.

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(b) that the first appellate court erred in not noticing that the plaintiff was essentially trying to deny the execution of Will by Gowramma in favour of the defendant on the premise of questioning the validity or otherwise of the decree passed in RSA No.669/1991. Such a collateral challenge cannot be permitted and as such, the first appellate court grossly erred in entertaining the suit. Thus , he submits appeal involves a substantial question of law requiring consideration.

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On the contrary Sri. K. Krishnaswamy learned

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counsel for the respondent/plaintiff submits that the very suit of the defendant in O.S.No.377/1974 being one for declaration and possession and the decree passed in RSA No.669/1991 having held to be a nullity as against the legal representatives of Hampegowda, the appellant/defendant cannot derive the benefit of the said decree. He further submits that the first appellate court in the instant case has only granted a decree of permanent injunction restraining the appellant/defendant from interfering with the possession and enjoyment of the suit schedule property by the plaintiff till her dispossession in accordance with law. That no substantial question of law would arise for consideration.

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Heard learned counsel for the parties. Perused the records.

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There is no dispute that the decree dated 15.06.1998 passed by this Court in RSA No.669/1991 was against the father of the plaintiff and others. The

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said father of the plaintiff had passed away on 11.05.1993, much prior to passing of the aforesaid decree. It is settled law that the decree passed against a dead person is a nullity. The first appellate court therefore, justified in declaring that the decree passed in RSA No. 669/1991 dated 15.06.1998 is not binding on the plaintiff. As such, no fault can be found with the said reasoning.

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As regards the decree passed by the First Appellate Court granting permanent injunction restraining the appellant/defendant from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff until her dispossession in accordance with law, as rightly observed by the first appellate court, the very suit in O.S. No.377/1974 filed by the appellant/defendant was one for declaration and possession which was granted in favour of the appellant/defendant in the aforesaid RSA No.669/1991, which is now held to be not binding on the respondent/plaintiff, there is no infirmity or illegality in

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possession of the plaintiff being protected until her dispossession in accordance with law.

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It is brought to the notice of this Court that Execution Petition No.65/1998 filed by the

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appellant/defendant seeking execution of decree passed in RSA No.669/1991 is also dismissed.

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The First Appellate Court has merely granted an order of permanent injunction restraining defendant from interfering with the possession and enjoyment of the plaint schedule property by the plaintiff till her dispossession in accordance with law. It is settled law that even a trespasser is entitled for relief of injunction protecting his possession till dispossession in accordance with law.

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In the instant case, the appellant/defendant who is claiming better title over the respondent/plaintiff in respect of the suit schedule property may have to seek appropriate remedy in accordance with law, seeking dispossession of the plaintiff from the suit schedule

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property. Till such time, the settled possession of the respondent/plaintiff which is established and even as admitted by the appellant/defendant has to be protected under the law.

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For the aforesaid analysis, the reasons assigned by the First Appellate Court at paragraph 14 of its judgment do not suffer from any infirmity or illegality. In view of the above, no substantial question of law arises for consideration in the matter. Hence, appeal is dismissed.

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Sd/JUDGE

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Nanjegowda, Since Dead v. Jayamma

Case brief

What is this about?

What did the court decide?

Nanjegowda, Since Dead v. Jayamma

Case brief

What is this about?

What did the court decide?

What the court decided

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