Allowed

Smt. H. Sarojamma v. Smt. Rathnamma

Karnataka HC21 Nov 2023RFA/322/2017

Case brief

AI extract

What is this about?

In Regular First Appeal No. 322 of 2017, this Court allowed an appeal against an order dismissing a suit for acquisition of title by adverse possession on the ground of non-maintainability. Relying on Ravinder Kaur Grewal's case which overruled Gurudwar Saheb, the Court set aside the lower court's order on the question of maintainability and remitted the matter for piecemeal disposal.

What did the court decide?

The appeal was allowed; the impugned order and decree were set aside; and the matter was remitted to the Trial Court for reconsideration afresh.

Smt. H. Sarojamma Vs Smt. Rathnamma — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:42142 RFA No. 322 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST 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.322 OF 2017 (DEC/INJ)

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BETWEEN:

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SMT. H. SAROJAMMA W/O. SRI. B.C. RAMAKRISHNAPPA, AGED ABOUT 62 YEARS,

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SRI. B.C. RAMAKRISHNAPPA S/O. LATE PATEL CHOLURAIAH, ALIAS CHOLURAPPA, AGED ABOUT 69 YEARS,

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BOTH ARE R/AT HOUSE NO.81, BEHIND GOVERNMENT LIBRARY MAGADI MAIN ROAD, HAMLET OF HEROHALLI VILLAGE, VISHWANEEDAM POST, BANGALORE-560 091.

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…APPELLANTS

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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(BY SRI. D.L. JAGADEESH, SR. COUNSEL FOR SRI. RAKSHITHA D.J., ADVOCATE)

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AND:

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SMT. RATHNAMMA W/O. SRI. B.C. GOVINDARAJU, AGED ABOUT 55 YEARS,

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SRI. B.C. RAJANNA S/O. LATE PATEL CHOLURAIAH ALIAS CHOLURAPPA, AGED ABOUT 52 YEARS,

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R1 AND R2 ARE R/AT PIPE LINE ROAD, NEAR ANJANANAGAR BUS STOP, ANJANANAGAR,

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2 - NC: 2023:KHC:42142 RFA No. 322 of 2017

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VISHWANEEDUM POST, BANGALORE-560 091.

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SRI. B.C. THIMME GOWDA S/O. SRI. B.C. CHIKKANNA, AGED ABOUT 50 YEARS,

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SRI. B. C. THIMMA RAJAMMA W/O. SRI. B.C. THIMME GOWDA, AGED ABOUT 45 YEARS,

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R3 AND R4 ARE R/AT BYADARAHALLI VILLAGE, HAMLET OF HEROHALLI VILLAGE, MAGADI MAIN ROAD, VISHWANEEDUM POST, BANGALORE-560 091.

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…RESPONDENTS

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(BY SRI. B T INDU SHEKAR, ADVOCATE FOR C/R1 & R2; R3 & R4 ARE SERVED AND UNREPRESENTED)

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THIS RFA IS FILED UNDER SEC. 96 R/W ORDER XLI RULE 1 OF CPC AGAINST THE ORDER DATED 02.01.2017 PASSED ON IA IN OS NO.69/2010 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE SUIT FOR DECLARATION.

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

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JUDGMENT

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This appeal by the unsuccessful plaintiffs in O.S.No.69/2010

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is directed against the impugned order dated 02.01.2017 and the decree passed by the II Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru, whereby issue No.1 regarding maintainability of the suit was treated as preliminary issue and answered against the

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NC: 2023:KHC:42142 RFA No. 322 of 2017

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appellants – plaintiffs and consequently, dismissed the suit filed by the appellants – plaintiffs.

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Heard learned Senior Counsel for the appellants and perused the material on record.

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The material on record discloses that the appellants – plaintiffs instituted the aforesaid suit against respondents – defendants seeking declaration that they had acquired title to the suit schedule property by prescriptive right of adverse possession and for permanent injunction and other reliefs.

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The said suit was contested by the respondents – defendants, who took up several defences including the contention that the suit seeking declaration of title by adverse possession was not maintainable. Pursuant to the pleadings of the parties, the Trial Court framed the following issues:

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(i) Whether the plaintiffs prove that they have acquired title to the schedule property by way of adverse possession by prescriptive right over the statutory period against the defendants right if any claiming under deceased Patel Cholurappa @ Choluraiah and his wife Smt. Doddakka?

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(ii) Whether the plaintiff proves their lawful possession and enjoyment over the suit schedule property?

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

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(iv) Whether the plaintiff is entitle for relief of permanent

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injunction?

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(v) Whether the defendants prove that the partition deed dated 26.02.1996 is a anti-dated created document?

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(vi) Whether the suit is properly valued and court fee paid

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is sufficient?

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(vii) Whether this Court has got territorial jurisdiction to try this suit? (viii) Whether the suit is barred by limitation? (ix) What order or decree?

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The plaintiff Nos.1 and 2 examined themselves as

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PW1 and PW2 and documentary evidence at Ex.P1 to Ex.P50 were marked on their behalf. Defendant No.2 examined himself as DW1 and documentary evidence at Ex.D1 to Ex.D3 were marked. At the stage of cross-examination of DW1, instead of continuing with the evidence, defendants contended that issue regarding maintainability of the suit as framed in issue No.1 had to be decided as preliminary issue before proceeding further in the matter. Accepting the said contention of the defendants, the Trial Court proceeded to consider issue No.1 regarding maintainability of the suit as a preliminary issue and proceeded to answer the same against the appellants – plaintiffs and consequently, dismissed the suit as not maintainable by placing reliance upon the judgment of

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the Apex Court in the case of Gurudwar Saheb Vs. Gramapanchayath Village and another – 2014(1) SCC 669. As

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can be seen from the impugned order passed by the Trial Court, no findings have been rendered on the remaining issues framed by the Trial Court nor is their any finding on the merits / demerits of the rival contentions on the basis of the evidence adduced by the parties. Aggrieved by the impugned order passed by the Trial Court, particularly its finding on issue No.1, the appellants – plaintiffs are before this Court by way of the present appeal.

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As stated supra, the sole ground on which the Trial Court proceeded to answer issue No.1 against the plaintiffs and holding that the suit for declaration of title by adverse possession was not maintainable in the light of the judgment of the Apex Court in the Gurudwar’s case supra. However, during the pendency of the present appeal, the larger Bench of the Apex Court in the case of Ravinder Kaur Grewal and others Vs. Manjit Kaur & others –

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AIR 2019 SC 3827 has over-ruled the judgment of its earlier judgment in the Gurudwar’s case supra and has categorically held that the plea of adverse possession can be used both as a shield and sword and was available to the plaintiff in the suit and the said

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NC: 2023:KHC:42142 RFA No. 322 of 2017

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suit claiming declaration of title on the basis of adverse possession

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was maintainable in law. It is also relevant to state that except holding that the suit was not maintainable by placing reliance upon the Gurudwar’s case supra, the Trial Court has not recorded / rendered any findings on the merits / demerits of the rival contentions. Under these circumstances, since the basis of the order of the Trial Court has been over-ruled by the subsequent judgment in Ravinder Kaur Grewal’s case supra, I am of the considered opinion that the impugned order passed by the Trial Court and consequential judgment and decree deserve to be set aside and matter remitted back to the Trial Court for reconsideration afresh on all aspects of the matter and on all issues, in accordance with law.

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