Allowed

Sri Lakkappa v. Smt Vanajakshi

Karnataka HC15 Nov 2023RSA/393/2014

Case brief

AI extract

What is this about?

In a regular second appeal concerning a property title suit, the High Court held that the First Appellate Court erred in decreeing the suit while ignoring a prior order dismissing the appeal against one respondent. The court set aside the lower decree for violating natural justice principles.)

What did the court decide?

Appeal allowed. Impugned judgment and decree set aside. Matter remitted to First Appellate Court for fresh hearing after issuing notice to absent respondents.

Sri Lakkappa Vs Smt Vanajakshi — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:40742 RSA No. 393 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 393 OF 2014 (DEC/INJ)

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BETWEEN:

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SRI LAKKAPPA S/O DODDA VENKATAPPA, AGED ABOUT 44 YEARS, AGRICULTURIST, R/O M.K. HATTI, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT. PRESENTLY R/AT NEHRUNAGAR, ANAVATTI, SORAB TALUK, SHIMOGA DISTRICT-577 413

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…APPELLANT

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(BY SRI. CHANDRASHEKAR & M. NAGESH, ADVOCATES)

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AND:

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Digitally signed by R DEEPA Location: High Court of Karnataka

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SMT VANAJAKSHI W/O B.MOUNACHAR, AGED ABOUT 54 YEARS, HOUSEHOLD, R/O D.NO.1751, MALLIKARJUNA NILAYA, BEHIND KEB GRID, CHIKKAMMANNI DEVARAJ URS LAYOUT, DAVANAGERE – 577 002

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T.HEMANNA S/O THIPPAIAH, AGED ABOUT 44 YEARS, KEROSENE MERCHANT,

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R/O NEAR SHAKTHI GAS GODOWN, BASAVESHWARA SCHOOL ROAD, NITTUVALLI NEW EXTENSION, DAVANAGERE – 577 002

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S.M.RANGAPPA S/O SHIVALLI MYLAPPA, AGED ABOUT 46 YEARS, WORKING IN BACKWARD CASTE AND MINORITY COMMUNITY HOSTEL, OPP:GMIT, P.B.ROAD, DAVANAGERE – 577 002

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…RESPONDENTS

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(BY SRI. SANATHKUMAR SHETTY K., ADVOCATE FOR R1 R3 SERVED

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V/O DATED 16.02.2021 NOTICE TO R2 IS H/S)

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THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 11.12.2013 PASSED IN R.A.NO. 14/2010 ON THE FILE OF THE II ADDL. DISTRICT JUDGES, DAVANGERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 30.11.2009 PASSED IN OS.NO.332/2005 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) DAVANGERE.

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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 second appeal is filed by the appellant challenging the judgment and decree dated 11.12.2013, passed in R.A.No.14.2010 by the II Addl. District & Sessions Judge, Davanagere.

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For the sake of convenience, parties are referred to as per their ranking before the trial Court. Appellant is defendant No.3 and respondent No.1 is the plaintiff and respondents No.2 and 3 are defendants No.1 and 2.

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The brief facts leading rise to filing of this appeal are as under:

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Plaintiff filed a suit for declaration of title and permanent injunction against the defendants. It is the case of the plaintiff that plaintiff purchased the suit schedule property from defendant No.1 under the registered sale deed dated 05.03.2001. Since from the date of purchase, plaintiff claims that she is in peaceful possession and enjoyment of the suit schedule property. Defendant No.1 had purchased the said property from defendant No.2 under the registered sale deed dated 11.07.2000, and defendant No.2 had purchased the said property from defendant No.3 under the registered sale deed dated 26.05.1997. On the basis of the registered sale deed dated 05.03.2001, the khatha was changed in

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the name of the plaintiff. The City Municipality, Davanagere issued endorsement in favour of the plaintiff on 03.07.2001. It is contended that the defendant No.3 with the help of other persons came to the suit schedule property and tried to dispossess the plaintiff from the suit property and on enquiry plaintiff came to know that defendant No.3 had obtained the Court decree and by virtue of the Court decree, she is the owner of the suit property and claims that with the help of her neighbours she managed to send the defendant No.3 back. The plaintiff thereafter came to know that defendant No.3 had filed a suit in O.S.No.403/1997 on the file of Principal Civil Judge (Jr.Dn.), Davanagere, against defendant No.2 for declaration and cancellation of registered sale deed executed by defendant No.3 in favour of defendant No.2 on 26.05.1997. Defendant No.2 did not contest the said suit and the said suit came to be decreed vide judgment dated 08.11.2001. It is further contended that by virtue of the said decree, defendant No.3 is claiming to be the owner of the suit property. It is contended that the decree

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obtained by defendant No.3 is in collusion with defendant No.2 by suppressing the material facts. It is further stated that neither the plaintiff nor defendant No.1 were the parties to the said suit and therefore, the judgment and decree passed in O.S.No.403/1997 is not binding on the plaintiff. Hence cause of action arose for the plaintiff to file the suit.

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Though defendants No.1 and 2 appeared before

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the Court, they have not filed written statement. Hence written statement of defendants No.1 and 2 was taken as not filed.

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Defendant No.3 filed written statement denying the averments made in the plaint. It is contended that defendant No.3 purchased the schedule property under registered sale deed dated 21.03.1997, from its previous owner and defendant No.3 is in actual possession and enjoyment of the suit schedule property. Defendant No.2 in collusion with the Sub-Inspector of Gandhinagar Police Station, Davanagere, created sale deed dated 26.05.1997,

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and therefore defendant No.3 filed a suit for cancellation of

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registered sale deed dated 26.05.1997 in O.S.No. 403/1997 on the file of Prl. Civil Judge (Jr.Dn.), Davanagere and the said suit came to be decreed vide judgment dated 08.11.2001. Defendants No.1 and 2 colluding with the plaintiff, created registered sale deeds dated 11.07.2000 and 05.03.2001. It is contended that the plaintiff and defendant No.2 are absolutely not having any right, title or interest over the suit schedule property and it is further contended that the plaintiff is not in possession of the suit schedule property and the judgment and decree passed in O.S.No.403/1997 is binding on the plaintiff and defendants No.1 and 2. It is contended that the suit filed by the plaintiff is barred by limitation. On these grounds, sought for dismissal of the suit.

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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1. Whether the plaintiff proves that he is the absolute owner and in possession of the suit schedule property?

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1. Whether the plaintiff further proves the interference of the defendant?

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1. Whether the suit filed by the plaintiff is hit by the principles of res judicata?

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1. Whether the defendant No.3 proves that the defendants 1 & 2 and the plaintiff colluded together and created sale deeds dated 11-72000 and 5-2-2001?

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1. What order and decree ?

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In order to prove the case of the plaintiff, the plaintiff examined her power of attorney holder i.e., her husband as PW-1 and got examined two witnesses as PW2 & PW-3 and got marked 31 documents as Exs.P1 to P31.

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Defendant No.3 examined himself as DW-1 and got marked 9 documents as Exs.D1 to D9. The trial Court considering the oral and documentary evidence of the parties, answered issue Nos.1, 3 and 4 in negative and issue No.2 will not survive for consideration and consequently dismissed the suit vide judgment dated 30.11.2009.

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The plaintiff aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.14/2010 before the II Additional District & Sessions Judge, Davanagere. The First Appellate Court, after hearing the parties, has framed the following points for consideration:

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1) Whether the plaintiff proves that she is the absolute owner, in possession and enjoyment of the suit schedule property?

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2) Whether the judgment and decree passed by the trial Court in O.S.No.403/1997 is binding on the plaintiff?

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3) Whether the judgment and decree passed by the trial Court is illegal and perverse and the same is required to be intervened by this Court?

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4) What order?

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The First Appellate Court, on re-appreciating the

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oral and documentary evidence, answered points No.1 to 3 in affirmative and allowed the appeal filed by the plaintiff and consequently set aside the judgment and decree passed by the trial Court and decreed the suit of the plaintiff. It is declared that the plaintiff is the absolute

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owner of the suit schedule property and restrained the defendants by way of permanent injunction from interfering or dispossessing the plaintiff from the suit schedule property and it is declared that the judgment and decree passed in O.S.No.403/1997 is not binding on the plaintiff. Defendant No.3 aggrieved by the judgment and decree passed by the First Appellate Court, has filed this second appeal.

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This court admitted the appeal on the following substantial question of law :

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"Whether the Lower Appellate Court was justified in decreeing the suit despite the fact that the appeal came to be dismissed against defendant No.3 vide order dated 15.06.2012?"

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Heard learned counsel for defendant No.3 and

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learned counsel for the plaintiff.

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Learned counsel for the defendant No.3 submits that the plaintiff filed the appeal before the First Appellate Court challenging the judgment and decree passed by the trial Court. The First Appellate Court issued notice.

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Plaintiff has not taken steps against defendant No.3. The First Appellate Court vide order dated 23.04.2010, dismissed the appeal against respondents No.2 and 3 / defendants No.2 and 3. He submits that the plaintiff filed an application in I.A.No.1 to recall the order dated 23.04.2010. The said application came to be allowed on 07.04.2011. Though the order of dismissal against defendants No.2 and 3 was recalled, plaintiff has not taken steps against defendant No.3 and hence, vide order dated 15.06.2012, the First Appellate Court dismissed the appeal against defendant No.3. The First Appellate Court, without looking into the order dated 15.06.2012, proceeded to pass the impugned judgment decreeing the suit of the plaintiff and restrained the defendants from interfering or dispossessing the plaintiff from the suit schedule property. He submits that the First Appellate Court committed an error in passing the impugned judgment decreeing the suit against defendant No.3, when the appeal against defendant No.3 came to be dismissed vide order dated

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15.06.2012. Hence on these grounds, prays to allow the appeal.

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Per contra, learned counsel for the plaintiff submits that the First Appellate Court has committed an irregularity while passing the impugned judgment. Hence he submits that the matter may be remanded to the First Appellate Court to reconsider the appeal afresh and pass appropriate judgment.

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Perused the records and considered the submissions of learned counsel for the parties.

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It is not in dispute that the plaintiff filed a suit for declaration of title and permanent injunction against the defendants. Defendant No.3 filed written statement. The trial Court framed issues and thereafter the parties have adduced evidence before the trial Court and produced documents. The trial Court considering the oral and documentary evidence, dismissed the suit of the plaintiff. The plaintiff aggrieved by the judgment and

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decree passed by the trial Court, preferred an appeal in R.A.No.14/2010 before the First Appellate Court. I have perused the order sheet of R.A.No.14/2010. The plaintiff preferred the appeal on 15.02.2010. The matter was listed before the First Appellate Court on 18.02.2010. The First Appellate Court ordered to issue notice to the respondents/ defendants. Notice was served on respondent No.1 / defendant No.1 and it was ordered to take steps in respect of respondents No.2 and 3 / defendants No.2 and 3. Since steps were not taken against defendants No.2 and 3, vide order dated 23.04.2010, the First Appellate Court dismissed the appeal against defendants No.2 and 3. The plaintiff filed an application in I.A.No.1 on 17.08.2010, to recall the order dated 23.04.2010. On 07.09.2010, there was no representation on behalf of the appellant/plaintiff and again on the same day the case was called after 3 p.m. Even after 3 p.m., there was no representation for the plaintiff and the First Appellate Court dismissed I.A.No.1 for non-prosecution and posted the matter for final

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hearing. On 20.09.2010, the plaintiff filed I.A.No.2 to recall the order of dismissal of appeal against defendants No.2 and 3. The said application came to be allowed vide order dated 07.04.2011. It was ordered to issue notice to defendant No.2 through court process and to defendant No.3 through RPAD. The plaintiff filed an application for substituted service through paper publication. The said application came to be allowed and plaintiff has taken notice to respondent No.2/defendant No.2 by way of substituted service through paper publication. Defendant No.2 did not appear before the First Appellate Court. Defendant No.2 was absent. On 15.06.2012, it was recorded that since the plaintiff has not taken steps against defendant No.3, appeal as against respondent No.3/defendant No.3 was ordered to be dismissed. Thereafter, plaintiff filed I.A.No.4 on 20.09.2012, for amendment of plaint. Vide order dated 14.03.2013, the said application was ordered to be heard along with the main appeal. On 06.09.2013, the First Appellate Court allowed the application, I.A.No.4 for amendment of plaint.

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Thereafter, the First Appellate Court heard the matter on merits and allowed the appeal vide judgment dated 11.12.2013, and consequently decreed the suit of the plaintiff.

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From the perusal of the cause-title of the judgment of the First Appellate Court, it is clearly mentioned that the appeal against respondent No.3/ defendant No.3 is dismissed vide order dated 15.06.2012. Inspite of the fact that the appeal was dismissed against defendant No.3, the First Appellate Court has proceeded to decree the suit against defendant No.3. The First Appellate Court has overlooked the order dated 15.06.2012. The judgment and decree passed by the First Appellate Court is in violation of principles of natural justice. Hence, on this ground alone, the impugned judgment is liable to be set aside. In view of the above discussion, I answer the substantial question of law in negative.

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In view of the aforesaid facts and circumstances,

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I proceed to pass the following:

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ORDER

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The appeal is allowed.

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The judgment and decree passed by the First Appellate Court in R.A.No.14/2010 dated 11.12.2013, is set aside.

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Matter is remitted to the First Appellate Court to reconsider the appeal afresh and pass appropriate judgment in accordance with law.

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As defendant No.3 / respondent No.3 has appeared in this appeal, the parties are directed to appear before the First Appellate Court on 18.12.2013, without awaiting any further notice.

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Defendants No.1 & 2 / respondents No.1 & 2 are absent in this appeal. In view of the same, First Appellate Court is directed to issue notice to defendants No.1 & 2 / respondents No.1 & 2, before hearing the appeal on merits.

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Registry is directed to transmit the records to the First Appellate Court.

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All the contentions of the parties are kept open.

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As the appeal is of the year 2010, the First Appellate Court is directed to dispose of the appeal within a period of one year from the date of receipt of copy of this order.

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SD/JUDGE

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Sri Lakkappa v. Smt Vanajakshi

Case brief

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Sri Lakkappa v. Smt Vanajakshi

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