Allowed

Sri Sunchappa @ Chunchappa v. Sri Ananda S/O Dyavappa

Karnataka HC9 Nov 2023RFA/1939/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the appeal against the dismissal of a suit for declaration and injunction regarding immovable property. The court set aside the impugned judgment, remitted the matter to the trial court for reconsideration to allow additional evidence, and reserved liberty for both parties.

What did the court decide?

The impugned judgment and decree were set aside, and the matter was remitted to the trial court for reconsideration afresh. Liberty was reserved for both sides to adduce oral and documentary evidence.

Sri Sunchappa @ Chunchappa Vs Sri Ananda S/O Dyavappa — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:40156 RFA No. 1939 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 1939 OF 2019 (DEC/INJ)

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BETWEEN:

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SRI. SUNCHAPPA @ CHUNCHAPPA SINCE DECEASED BY HIS LR'S

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1a. MANJU,

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S/O. LATE SUNCHAPPA @ CHUNCHAPPA,

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AGED ABOUT 65 YEARS,

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R/AT NO. 82/2, OPPO. BHAGHAVATHI TEMPLE, KARIYAMMANA AGRAHARA, BELLANDUR, BANGALORE - 560 103.

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1b. LOKESH S.

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S/O. LATE SUNCHAPPA @ CHUNCHAPPA, AGED ABOUT 64 YEARS, R/AT NO. 159, KARIYAMMANA AGRAHARA, BELLANDUR, BANGALORE - 560 103.

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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1c. BASAVARAJU S.

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S/O. LATE SUNCHAPPA @ CHUNCHAPPA,

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AGED ABOUT 61 YEARS, R/AT N.15, NEW NO.6/2, BEHIND ESHWARA TEMPLE, YEMALUR, BANGALORE SOUTH, BANGALORE - 560 037.

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…APPELLANTS

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(BY SMT. K. K. THAYAMMA., ADVOCATE)

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NC: 2023:KHC:40156 RFA No. 1939 of 2019

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AND:

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SRI. ANANDA, AGED ABOUT 60 YEARS, S/O. DYAVAPPA, RESIDING AT OPPOSITE TO FLOUR MILL, YEMLUR MAIN ROAD, YEMLUR, BANGALORE - 560 037.

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SRI. MANJUNATHA, AGED ABOUT 54 YEARS S/O SHIVANNA, RESIDING AT OPPOSITE TO FLOUR MILL, YEMLUR MAIN ROAD, YEMLUR, BANGALORE - 560 037.

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…RESPONDENTS

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(BY SRI. S. SRIVATSA, SENIOR COUNSEL FOR SRI. FREUD RICHARDSON, ADVOCATE FOR R1; R2 IS SERVED AND UNREPRESENTED)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED 30.08.2019 PASSED IN O.S.NO.7768/2014 ON THE FILE OF THE XXXVII ADDITIONAL CITY CIVIL JUDGE, BENGALURU, DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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

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ORDER

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This appeal by the unsuccessful plaintiff is directed against the impugned judgment and decree dated 30.08.2019 passed in O.S.No.7768/2014 by the XXXVII Addl. City Civil and Sessions

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Judge, (CCH-38), Bengaluru, whereby the said suit filed by the appellant - plaintiff against the respondents - defendants for declaration, permanent injunction, mandatory injunction and other

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NC: 2023:KHC:40156 RFA No. 1939 of 2019

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reliefs in relation to the suit schedule immovable property was dismissed by the trial Court.

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Heard the learned counsel for the appellant and the learned Senior Counsel, Sri. S. Srivatsa appearing for respondent No.1 and perused the material on record.

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The material on record discloses that the appellant - plaintiff instituted the aforesaid suit seeking declaration and injunction in respect of the suit schedule immovable property described as 15 feet road from west to east in survey No.52/1 of Yemlur Village, Varthur Hobli, Bengaluru East Taluk said to be situated on the northern side of the property of the defendant No.1. In the said suit, respondent No.1 - defendant No.1 entered appearance and contested the suit pursuant to which, the trial Court framed the following issues:

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"1. Whether plaintiff proves that he has easementary right of way through the suit schedule property as contended?

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2. Whether plaintiff further proves the existence of Rajakaluve and cart track as contended?

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3. Whether plaintiff further proves the interference by the defendants as contended?

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4 - NC: 2023:KHC:40156 RFA No. 1939 of 2019

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4. Whether plaintiff is entitled for the relief as sought?

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5. What order or decree?"

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The plaintiff examined himself as PW-1 and two

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witnesses as PW-2 and PW-3 and documentary evidence at Exs.P1 to P27 were marked on his behalf. The respondent No.1 - defendant No.1 neither cross examined PW-1 and his witnesses nor adduced any oral or documentary evidence on his behalf. The respondent No.1 also did not contest the matter thereafter, subsequent to filing the written statement. The trial Court heard the plaintiff and proceeded to pass the impugned judgment and decree dismissing the suit, aggrieved by which, the appellant is before this Court by way of the present appeal.

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In addition to reiterating the various contentions urged in the Memorandum of Appeal and referring to the material on record, learned counsel for the appellant submits that the trial Court fell in error in rejecting the claim of the appellant - plaintiff despite the unimpeached, uncontroverted and unchallenged oral and documentary evidence adduced by the appellant and his witnesses and this has resulted in the erroneous conclusion. It is also submitted that the appellant intends to produce additional evidence

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5 - NC: 2023:KHC:40156 RFA No. 1939 of 2019

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to indicate that subsequent to the impugned judgment and decree, respondent No.1 has sold the entire property situated to the south of the suit schedule property by forming sites in favour of third parties and he has no subsisting right title or interest over the said property and as such, the impugned judgment and decree passed by the trial Court deserves to be set side.

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Per-contra, Learned Senior Counsel appearing for respondent No.1 submits that due to bonafide reasons, unavoidable circumstances and sufficient cause and inability on part of the respondent No.1 to give necessary instructions to his counsel, it was not possible for respondent No.1 to contest the suit after filing the written statement. It is also submitted that, pursuant to his earlier counsel retiring from the suit, court notice was issued to respondent No.1 and despite the shara on the postal acknowledgment to the effect that defendant No.1 was not traced, the trial Court proceeded to place the respondent No.1 exparte and passed the impugned judgment and decree. It is submitted that, in the event, this Court were to allow the appeal and set aside the impugned judgment and decree, liberty may be reserved in favour of the respondent No.1 to cross examine the plaintiff and his

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witnesses as well as adduce oral and documentary evidence in support of his defense.

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I have given anxious consideration to the rival

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submissions and perused the material on record.

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Though several contentions have been urged by both sides in support of their respective claims, in light of the submission made on behalf of the appellant - plaintiff, that he has additional evidence to be adduced on his behalf as well as the submission made on behalf of respondent No.1 that an opportunity is to be provided to him to cross examine the plaintiff and his witnesses and also adduce oral and documentary evidence on his behalf, without expressing any opinion on the merits/demerits of rival contentions and in order to enable both sides to adduce additional oral and documentary evidence, I deem it just and appropriate to exercise my powers under Section 107 r/w Order XLI Rule 23A and Rule 33 of CPC and in order to complete substantial justice, set aside the impugned judgment and decree and remit the matter back to the trial Court for reconsideration afresh in accordance with law by leaving open all contentions to be decided by the trial Court.

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NC: 2023:KHC:40156 RFA No. 1939 of 2019

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9. In the result, I pass the following:-

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ORDER

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(i) Appeal is hereby allowed .

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(ii) The impugned judgment and decree dated 30.08.2019 passed in O.S.No.7768/2014 by the XXXVII Addl. City Civil and Sessions Judge, (CCH-38), Bengaluru is hereby set aside.

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(iii) The matter is remitted back to the trial Court for reconsideration afresh in accordance with law.

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(iv) The parties undertake to appear before the trial Court on 06.12.2023 without awaiting further notice from the trial Court.

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(v) The trial Court is directed to dispose off the suit within a period of three months from 06.12.2023.

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(vi) Liberty is reserved in favour of both sides to adduce oral and documentary evidence in support of their respective claims and also to

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8 - NC: 2023:KHC:40156 RFA No. 1939 of 2019

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cross examine the other side and their witnesses.

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(vii) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.

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Sd/JUDGE

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MCR

Sri Sunchappa @ Chunchappa v. Sri Ananda S/O Dyavappa

Case brief

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What did the court decide?

Sri Sunchappa @ Chunchappa v. Sri Ananda S/O Dyavappa

Case brief

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