Allowed

Mrs Jayashree Muralidhar v. Mrs Prescilla

Karnataka HC7 Nov 2023RFA/1537/2007

Case brief

AI extract

What is this about?

In an appeal challenging a decree for declaration of title, the High Court of Karnataka held that the alleged admission in the defendant's written statement regarding property identity was erroneous. The court set aside the trial court's judgment and remitted the matter for fresh recording of evidence and disposal.

What did the court decide?

Allowed appeal, set aside impugned judgment, remitted matter to Trial Court for fresh disposal and recording of evidence.

Mrs Jayashree Muralidhar Vs Mrs Prescilla — Property and Title | Karnataka HC (2023)

¶1

1 - NC: 2023:KHC:39814 RFA No. 1537 of 2007

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 7^TH DAY OF NOVEMBER, 2023

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL No.1537 OF 2007 (DEC)

¶6

BETWEEN:

¶7

MRS JAYASHREE MURALIDHAR W/O MURALIDHAR AGED ABOUT 44 YEARS

¶8

MURALIDHAR AGED ABOUT 48 YEARS

¶9

BOTH ARE RESIDING AT NO.43, 2^ND CROSS ROAD, P AND T COLONY NEAR WATER SUPPLY, R.T.NAGAR BANGALORE – 560 032

¶10

…APPELLANTS

¶11

Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

¶12

(BY SRI Y.R.SADASHIVAREDDY, SENIOR COUNSEL ALONGWITH SRI RAHUL S. REDDY, ADVOCATE)

¶13

AND:

¶14

MRS. PRESCILLA MAREELLINE RODRIGNES AGED ABOUT 55 YEARS RESIDING AT No.6/1, 3^RD CROSS, ANNAYAPPA BLOCK BENSON TOWN BANGALORE -560 046

¶15

…RESPONDENT

¶16

(BY SRI Y K NARAYANA SHARMA, ADVOCATE)

¶17

¶18

NC: 2023:KHC:39814 RFA No. 1537 of 2007

¶19

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CIVIL PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE DATED 7.4.2007 PASSED IN O.S.NO.10688/98 ON THE FILE OF THE XXVIII ADDL. CITY CIVIL JUDGE, MAYOHALL UNIT, BANGALORE, DECREEING THE SUIT FOR DECLARATION.

¶20

THIS REGULAR FIRST APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶21

JUDGMENT

¶22

Heard Sri Y.R. Sadashivareddy, learned Senior Counsel for the appellant and Sri Y.K. Narayanasharma, learned counsel for the respondent.

¶23

The present appeal is filed challenging the validity of the judgment and decree in O.S.No.10688/1998 on the file of Additional City Civil Judge, Mayo Hall Unit, Bengalurr (CCH-29), whereby, suit of the plaintiff came to be decreed.

¶24

Parties are referred to as plaintiff and defendants for the sake of convenience as per their original ranking before the Trial Court.

¶25

Plaintiff filed a suit for declaration and injunction in respect of property building site No.57, 58, House list katha

¶26

3 - NC: 2023:KHC:39814 RFA No. 1537 of 2007

¶27

No.374, Dasarahalli village, Gramathana, Krishnarajapuram Hobli, Bengaluru South Taluk, formed out of Sy.No.33/2, measuring East to West 40 feet and North to South – 70 feet and bounded on the East by House site No.55 and 56, West by 25 feet road, North by 30 feet road and South by House site No.59.

¶28

Plaintiff claims that she is the absolute owner of the suit schedule property by virtue of the sale deed dated 04.03.1992 registered as No.8447 of 91-92, Book I, Volume 481, pages 5961, in the office of the Sub-Registrar, K.R. Puram Hobli, Bengaluru from its erstwhile owner. Ever since the date of purchase, plaintiff claimed that she is in possession and enjoyment of the suit schedule property by mutating the revenue entries and also constructed compound wall surrounding the schedule property.

¶29

It is the contention of the plaintiff that the defendant having no right, title and interest over the suit schedule property, started interfering with the suit property. Therefore, she filed the suit seeking for the said relief.

¶30

¶31

NC: 2023:KHC:39814 RFA No. 1537 of 2007

¶32

In pursuance of the suit summons, defendant No.1 appeared and filed detailed written statement denying the plaint averments in toto and claimed that she is the owner of the suit property by virtue of the sale deed executed by her vendor - Smt. Narayanamma, who is the erstwhile owner of the property, through General Power of Attorney holder Sri J. Rajanna and thereafter obtained plan and licence and constructed a house thereon and she is in possession of the suit property and sought for dismissal of the suit.

¶33

Based on the rival contentions of the parties, following issues were framed:

¶34

(1) Whether the plaintiff proves that identity of suit property is clear and that it is in existence?

¶35

(2) Whether the plaintiff proves that she is the absolute owner of suit schedule property?

¶36

(3) Whether the plaintiff proves that defendants illegally demolished existing structure and put up construction in suit property?

¶37

(4) Whether plaintiff is entitled to declaration and possession sought?

¶38

(5) Whether plaintiff is entitled to mandatory injunction sought?

¶39

5 - NC: 2023:KHC:39814 RFA No. 1537 of 2007

¶40

(6) What order or decree?

¶41

In order to prove the case of the plaintiff, plaintiff got examined herself as P.W.1 and relied on 21 documents which were exhibited and marked as Exs.P.1 to P.21, comprising of sale deed as Ex.P.1, receipt as Ex.P.2, encumbrance certificate as Ex.P.3, certified copy of sale deed as Ex.P.4, certified copy of mutation extract as Ex.P.5, layout plan as Ex.P.6, extract of demand register as Exs.P.7, tax paid receipts as Exs.P.8 to P.12, another encumbrance certificate as Ex.P.13, photos as Exs.P.14 to P16, certified copy of sale deed as Ex.P.17, certified copy of sale deed as Ex.P.18, certified copy of record of rights and pahani as Ex.P.19, encumbrance certificate as Ex.P.20 and legal notice as Ex.P.21.

¶42

On behalf of the defendants, apart from the first defendant and second defendant, two more witnesses namely; J.Rajanna, vendor of the first defendant and an independent witness by name Nanjappa, have been examined as D.Ws.1 to 4. Defendants relied on six documents which were exhibited and marked as Exs.D.1 to D.6, comprising of General Power of Attorney as Ex.D.1, RTC extract as Ex.D.2, Mutation register as

¶43

¶44

NC: 2023:KHC:39814 RFA No. 1537 of 2007

¶45

Ex.D.3, sanction for electricity connection as Ex.D.4, approved sanction plan as Ex.D.5 and sale deed as Ex.D.6.

¶46

On conclusion of recording of evidence, the learned Trial Judge decreed the suit of the plaintiff. While answering issue No.1, in paragraph No.7 of the impugned judgment, the learned trial Judge has held as under:

¶47

“7. To substantiate her version plaintiff got herself examined as P.W.1 by filing her affidavit evidence. P.W.1 reiterates the plaint averments and states that she is the absolute owner of the immovable properties bearing Nos. 57 and 58, HI. Katha No.374 (formed out of Sy.no.33/2), Dasarahalli village, Gramathana, K.R.Puram Hobli, Bangalore South taluk. P.W.1 states that she acquired the schedule properties under a deed of purchase dated 4.3.92 registered as No.8447 of 91-92 in Book 1, Volume 481, pages 59-61 in the Office of the Sub-Registrar, K.R.Puram Hobli, Bangalore PW.1 states that her vendor Smt.Narayanamma formed a layout/sites in Sy No 33/2 and disposed off the same periodically. P.W.1 states that she has purchased the schedule property by her vendor Smt Narayanamma. P.W.1 further states that her two sites together measures East to West 40' and North to South 70' and the 2 sites are adjacent to each other. P.W.1 states that her property is bounded on the East by house site No.55 and 56, West by 25' Road, North by 30' road and South by House site No.59. P.W.1 states that she was put in possession of the sites. No doubt the plaint

¶48

¶49

NC: 2023:KHC:39814 RFA No. 1537 of 2007

¶50

averments is corroborated by the affidavit evidence of P.W.1. It is to be seen whether the other documents placed before the court corroborates the said version of P.W.1. First it is necessary to see the identity of the suit property. In this regard Sec.58 of the Indian Evidence Act 1872 states that facts admitted need not he proved According to this Section no fact need be proved in any proceeding which the parties thereto or their agent agree to admit at the hearing, before the hearing, they agree to admit by any writing under their hands or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings. So if the written statement of defendant No.1 is perused at para 8 of page 5 it states thus:-

¶51

"The plaintiff also very well knows the true facts that the defendant No.1 is the absolute owner of the schedule property purchased by her under the registered sale deed dated 12.6.96, wherein the schedule discloses that vacant land measuring 0-02 guntas out of survey No. 33/2...."

¶52

This statement is an admission as defined under Sections 17 and 18 of Indian Evidence Act, 1872. The first defendant herself states about the schedule property and hence the properties claimed by both plaintiff and first defendant are one and the same and clearly identifiable. Apart from this admission the very same advocate who is appearing for the first defendant has given a reply notice on behalf of one Krishna which is marked at Ex P.21. It is clear from Ex.P 21 that plaintiff agreed to purchase these

¶53

¶54

NC: 2023:KHC:39814 RFA No. 1537 of 2007

¶55

sites under an agreement and Smt.Narayanamma having executed the sale deed in respect of site Nos 57 and 58. This is another admission even prior to filing of the written statement by the very same advocate appearing for defendant No.1 which only probabalises that the properties are one and the same and it also indicates the execution of the sale deed by Smt Narayanamma in favour of the plaintiff Again both plaintiff and defendants have produced certain documents which are RTC extracts. Plaintiff produces the RTC extract marked at Ex P.19 and defendants also produce the RTC extract marked at Ex.D.2. Both these documents are in respect of Sy.No. 33/2 and it discloses MR No. 34/95-96 in both the documents. Ex P.19 further indicates about the sites being formed in Sy.no.33/2. Similarly the witness D.W1 denies that plaintiff' is in possession of the schedule property. She does not say that the said property is not identifiable or that it is a different property as claimed in her written statement which again probabalises that both the properties claimed by the plaintiff and the first defendant are one and the same which is the suit schedule property.“

¶56

Being aggrieved by the said judgment and decree, the defendants have preferred the present appeal.

¶57

Sri Y.R. Sadashivareddy, learned Senior Counsel

¶58

representing the appellants, reiterating the grounds urged in the appeal, drew the attention of this Court about the finding of

¶59

9 - NC: 2023:KHC:39814 RFA No. 1537 of 2007

¶60

the learned trial Judge in the impugned judgment on issue No.1 and contended that there was no admission made by the appellant in paragraph 8 of the written statement and the facts have been narrated in paragraph 8 of the written statement have been wrongly construed by the learned Trial Judge to hold that the property purchased by the plaintiff and the property purchased by the defendants are one and the same property. Thereby there is a grave error committed by the learned Trial Judge in answering issue No.1 and therefore, matter requires reconsideration at the hands of the Trial Court and sought for setting aside the impugned judgment and remitting the matter to the Trial Court.

¶61

Sri Y.K. Narayanasharma, learned counsel for the respondent/plaintiff however tried to support the impugned judgment by contending that even assuming that the finding recorded by the learned Trial Judge in the impugned judgment with regard to issue No.1, by taking advantage of Section 58 of the Indian Evidence Act and also resorting to the power vested in the Court under Section 17 of the Indian Evidence Act is incorrect, there are other material evidence on record which would be in a position to establish that the property purchased

¶62

10 - NC: 2023:KHC:39814 RFA No. 1537 of 2007

¶63

by the plaintiff is the suit property and therefore, appeal can be disposed of by this Court on the merits.

¶64

In the light of the arguments, put forth on behalf of the parties, on the question of issue No.1, as extracted at paragraph No.7 of the impugned judgment supra, it is seen that the first defendant never admitted that the suit property is the property that has been purchased by the defendants.

¶65

On the contrary, there is a specific mention as to the schedule property purchased by the defendant under registered sale deed dated 12.06.1996. Few lines earlier to the said extracted portion of the paragraph No.8 of the written statement, the defendant has traversed with the sale deed of the plaintiff specifically mentioning the schedule of the sale deed and also mentioning the date of the sale deed as 04.03.1992 and denied that plaintiff has purchased any property and the property said to have been purchased by the plaintiff is a non existing property.

¶66

11 - NC: 2023:KHC:39814 RFA No. 1537 of 2007

¶67

On close reading of entire paragraph No.8 of the written statement, it is evident that the defendant never admitted that the suit property and the property purchased by the defendant is one and the same property, as such, the finding recorded by the learned Trial Judge on issue No.1 is incorrect.

¶68

Further, it is also to be noted that in the sale deed executed by the vendor of the plaintiff, there is no mention in the schedule that the said property is part of Sy.No.33/2. These are all the matters which go to the very root of the matter, especially when the prayer is one for declaration of the title of the plaintiff.

¶69

Under such circumstances, it is just and necessary for this Court to remit the matter for recording a fresh finding on issue No.1.

¶70

At this stage, both the counsels submit that in the event of the matter being remitted to the Trial Court, let it be a open remand and the parties be permitted to lead additional evidence on record.

¶71

12 -

¶72

NC: 2023:KHC:39814 RFA No. 1537 of 2007

¶73

Accordingly, placing the submission of both the counsels on record, following order is passed:

¶74

ORDER

¶75

(i) Appeal is allowed.

¶76

(ii) Impugned judgment and decree dated 07.04.2007 is hereby set aside.

¶77

(iii) Matter is remitted to the Trial court for

¶78

fresh disposal in accordance with law.

¶79

(iv) The parties are at liberty to place additional evidence on record, if so advised.

¶80

(v) It is made clear that this Court has not expressed any opinion on the merits of the matter while setting aside the impugned judgment and decree.

¶81

(vi) It is also made clear that none of the parties are at liberty to withdraw the admissions already available on record.

¶82

(vii) Parties shall appear before the Trial Court

¶83

without further notice on 27.11.2023.

¶84

(viii) Having regard to the fact that the suit in the Trial Court is instituted in the year 1998, the

¶85

NC: 2023:KHC:39814 RFA No. 1537 of 2007

¶86

13 -

¶87

Trial Court shall bestow its attention in disposing of the suit as early as possible, but not later than 31.07.2024.

¶88

(ix) Needless to emphasizes that parties shall

¶89

cooperate for the same.

¶90

(x) No order as to costs.

¶91

Sd/JUDGE

¶92

Mrs Jayashree Muralidhar v. Mrs Prescilla

Case brief

What is this about?

What did the court decide?

Mrs Jayashree Muralidhar v. Mrs Prescilla

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

B M Ramachandregowda Vs B M Tulasiramegowda

Smt Rangamma W/O Shamanna D/O Annaiah Vs Sri Santhoorama Rao S/O Late Smt.Rani Bayamma

R Krishna Singh Vs Smt G H Sharadhamma

Dharam Das Dalwani Vs Sarathi International Inc.

Smt Kannamma Vs Smt Y S Annapurna

Sri T. Narayanaswamy Vs Sri T. Gopal