Allowed

Smt. D. Mariam Priya Darshini, v. Sri. Santhosh George

Karnataka HC4 Dec 2023RFA/1967/2023

Case brief

AI extract

What is this about?

In a regular first appeal against a decree in a permanent injunction suit, the High Court observed that identical issues arose in a second suit filed during the first suit's pendency. The Court allowed the appeal, set aside the lower court's decree, and remitted both suits to a different judge for consolidated trial, transferring the first suit accordingly.

What did the court decide?

The impugned judgment and decree dated 01.09.2023 in OS.No.5500/2017 are set aside and remitted to the Trial Court to be clubbed and disposed of together with O.S.No.25088/2018. The High Court withdre

Smt. D. Mariam Priya Darshini, Vs Sri. Santhosh George — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:43640 RFA No. 1967 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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REGULAR FIRST APPEAL NO. 1967 OF 2023 (INJ)

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BETWEEN:

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SMT. D. MARIAM PRIYA DARSHINI, AGED ABOUT 43 YEARS, DAUGHTER OF MR. DEVANESAN, RESIDING AT NO. 136, BETHEL, KAVERINAGAR, VODDARAPALAY, HORAMAVU AGRA, BANGALORE-560 043.

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…APPELLANT

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(BY SRI. REVBEN JACOB, SENIOR COUNSEL FOR SRI. DEVAIAH.M.P.,ADVOCATE) AND:

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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SRI. SANTHOSH GEORGE, AGED ABOUT 56 YEARS, SON OF LATE GEROGE SABASTIAN RESIDING AT NO. 6, 5^TH CROSS, VGS ALYOUT, EJIPUA, NEAR MUNESHWARA TEMPLE, BANGALORE-560 047. (BY SRI. SURESH.S.LOKRE, SENIOR COUNSEL FOR SRI. SHRAVAN.S.LOKRE, ADVOCATE)

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…RESPONDENT

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 01.09.2023 PASSED IN OS.NO. 5500/2017 ON THE FILE OF THE LEARNED LXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE(CCH 62), DECREEING THE SUIT FOR PERMANENT INJUNCTION

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

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NC: 2023:KHC:43640 RFA No. 1967 of 2023

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JUDGMENT

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Appellant had produced the latest photographs pertaining to the disputed property. The photographs are received on record.

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This appeal by the defendant in O.S.No.5500/2017 is directed against the impugned judgment and decree dated 01.09.2023 passed by the LXI Addl. City Civil and Sessions Judge, Bangalore City, whereby the said suit for permanent injunction and other reliefs filed by the respondent – plaintiff against the appellant – defendant in relation to the suit schedule immovable property was decreed by the Trial Court in favour of the respondent against the appellant.

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Heard learned senior counsel for the appellant and learned counsel for the respondent and perused the material on record.

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The material on record discloses that the respondent – plaintiff instituted the aforesaid suit seeking permanent injunction and other reliefs restraining the appellant – defendant from interfering with his alleged possession and enjoyment of the suit schedule property. It was the specific contention of the respondent – plaintiff that the suit schedule property as described in the plaint

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3 - NC: 2023:KHC:43640 RFA No. 1967 of 2023

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was acquired by him vide Registered Sale Deed dated 23.01.2017 pursuant to which the Revenue records were transferred to his name and he was paying the taxes. It was also contended that the appellant – defendant was residing in the house situated adjacent to suit schedule property on the Western side. It was contended that since the appellant – defendant was interfering with the respondent – plaintiff’s possession and enjoyment of the suit schedule property, the plaintiff instituted the aforesaid suit.

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The appellant – defendant contested the suit interalia disputing and denying the various allegations and claims made by the plaintiff, pursuant to which the Trial Court framed the following issues:

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“ a. Whether the plaintiff proves that he is in peaceful possession and enjoyment of the suit schedule property as on the date of suit?

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b. Whether the plaintiff further proves the alleged interference of the defendant?

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c. Whether the plaintiff further proves that he is entitled for the relief of permanent injunction as prayed?

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d. What order or decree? ”

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The plaintiff examined himself as PW-1 and documentary evidence at Ex.P.1 – P.22 were marked, while the defendant

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examined herself as DW-1 and documentary evidence at Ex.D.1 – D.20 were marked.

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After hearing the learned counsel for the parties, the Trial Court proceeded to pass the impugned judgment and decree, decreeing the suit in favour of respondent – plaintiff against the appellant – defendant who is before this Court by way of the present appeal.

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The appellant has filed a memo along with latest photographs depicting the suit schedule property. In this context, learned senior counsel for the appellant submits that there was a compound wall situated on the Northern side of the suit schedule property which has been demolished recently by the respondent. It is also submitted that during the pendency of the suit before the Trial Court, the appellant – defendant has also instituted one more suit in O.S.No.25088/2018 in which the respondent – plaintiff has entered appearance and is contesting the said suit. It is submitted that the aforesaid suit in O.S.No.25088/2018 is a comprehensive suit for declaration and injunction and since the present appeal arises out of a suit for permanent / bare injunction simpliciter, the impugned judgment and decree passed in the instant suit may be

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set aside and the matter remitted back to the Trial Court for reconsideration afresh in accordance with law.

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Per contra, learned senior counsel for the respondent – plaintiff submits that the Trial Court has correctly and properly considered and appreciated the entire material on record comprising of the pleadings and evidence of the parties and recorded Court including the admission of the appellant in her evidence and has come to the correct conclusion that the respondent was in lawful and peaceful possession and enjoyment of the suit schedule property and was consequently entitled a decree for permanent injunction. It was therefore, submitted that the impugned judgment and decree passed by the Trial Court does not warrant interference in the present appeal.

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Alternatively, on the instructions learned senior counsel for the respondent submits that in the event, this Court were to set aside the impugned judgment and decree and remit the matter back to the Trial Court to for disposal, for reconsideration afresh along with O.S.No.25088/2018, the respondent may be permitted

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to utilize/use the pleadings and evidence already on record and both the suits may be directed to be clubbed / consolidated for

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disposal together in accordance with law within a stipulated time frame.

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I have given my anxious consideration to the rival submissions and perused the material on record.

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A perusal of the material on record will indicate that it is an undisputed fact that the present appeal arises out of a suit for bare / permanent injunction, simpliciter filed by the respondent – plaintiff against the appellant – defendant in the year 2017.

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It is also not in dispute that during the pendency of the said suit, the appellant has instituted one more suit O.S.No.25088/2018 against the respondent for declaration, permanent injunction and other reliefs in relation to the very same suit schedule property and the said suit is being contested by the respondent and is pending adjudication before the Trial Court. Under these circumstances, though several contentions urged by both sides in support to their respective claims in the instant suit and in the present appeal, as well as in O.S.No.25088/2018 referred to supra, having regard to the undisputed fact that the parties to present appeal and the suit schedule property involved in both the suits are one and the same and the issues in controversy

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are identical, I deem it just and appropriate to set aside the impugned judgment and decree and remit the matter back to the Trial Court for reconsideration afresh along with O.S.No.25088/2018 in accordance with law.

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Further, since the instant suit in O.S.No.5500/2017 was disposed by LXI Addl. City Civil and Sessions Judge, Bengaluru City (CCH-62) while the subsequent suit in O.S.No.25088/2018 before the Hon’ble City Civil court, Court Hall No.22 Mayo Hall, Bangalore.

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I deem it just and appropriate to exercise my powers under Section 24 of CPC read with Article 227 of the Constitution of India and withdraw O.S.No.5500/2017 from the file of the LXI Addl. City Civil and Sessions Judge, Bengaluru City (CCH-62) and transfer the same to the Court of the Addl. City Civil Judge, Court Hall No.22 Mayo Hall, Bangalore, to be clubbed, consolidated and tried and disposed of along with O.S.No.25088/2018 in accordance with law.

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In the result, I pass the following orders:

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i) Appeal is hereby allowed.

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NC: 2023:KHC:43640 RFA No. 1967 of 2023

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ii) Impugned judgment and decree dated 01.09.2023 passed in O.S.No.5500/2017 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 registry of the Trial Court is directed to withdraw O.S.No.5500/2017 from the file of LXI Addl. City Civil and Sessions Judge, Bengaluru City (CCH-62) and transfer the same to the Court of XIII Addl. City Civil and Sessions Judge, Mayohall (CCH22), to be clubbed, consolidated and disposed of together along with O.S.No.25088/2018 in accordance with law.

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v) Both parties are directed not to put up any construction on the suit schedule property nor demolish any existing structure on the suit schedule property till disposal of the suit.

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vi) The Trial Court shall consider the rival contentions including the pleadings and evidence of the parties in both O.S.No.5500/2017 and O.S.No.25088/2018 and dispose of both the suits together in accordance with law, within a period of nine months from the date of receipt of a copy of this order.

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NC: 2023:KHC:43640 RFA No. 1967 of 2023

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vii) All rival contentions on all aspects of the matter in both O.S.No.5500/2017 and O.S.No.25088/2018 are kept open and no opinion is expressed on the same.

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Sd/JUDGE

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DHA List No.: 1 Sl No.: 26

Smt. D. Mariam Priya Darshini, v. Sri. Santhosh George

Case brief

What is this about?

What did the court decide?

Smt. D. Mariam Priya Darshini, v. Sri. Santhosh George

Case brief

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