Allowed

B.T.Puttappa v. B.C.Anurupa

Karnataka HC23 Jan 2024MSA/14/2014

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a first appellate order which had remanded a property suit for fresh trial. The High Court set aside the remand and confirmed the trial court decree, holding that without a proper challenge from all affected parties and with unproven delay allegations, the remand was illegal.

What did the court decide?

The judgment and decree in R.A.No.13/2013 dated 11.10.2013 is set aside and the judgment and decree in O.S.No.284/1995 dated 14.02.2007 is confirmed.

B.T.Puttappa Vs B.C.Anurupa — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:3256 MSA No. 14 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS SECOND APPEAL NO. 14 OF 2014 (RO)

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BETWEEN:

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B.T. PUTTAPPA,

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AGED ABOUT 50 YEARS, S/O B.T. VEERAPPA.

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B.T. SIDDESH, AGED ABOUT 48 YEARS, S/O B.T. VEERAPPA.

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B.C. SARASWATHI, AGED ABOUT 45 YEARS, W/O B.T. CHANNABASAPPA.

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Digitally signed by JAI JYOTHI J Location: HIGH COURT OF KARNATAKA

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B.T. RUDRAMMA, AGED MAJOR, W/O B.T. VEERAPPA.

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ALL ARE RESIDING AT BHEEMASAMUDRA VILLAGE, CHITRADURGA TALUK AND DISTRICT - 577 501.

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…APPELLANTS

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(BY SRI. B.M. SIDDAPPA, ADVOCATE)

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AND:

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B.C.ANURUPA, D/O B.T. CHANNABASAPPA,

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NC: 2024:KHC:3256 MSA No. 14 of 2014

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AGED ABOUT 21 YEARS, R/O BHEEMASAMUDRA VILLAGE, CHITRADURGA TALUK AND DISTRICT - 577 501.

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SABULAL,

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AGE: MAJOR, S/O RAZAKSAB.

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SUFRUNNISA, AGE: MAJOR, W/O L. RIZULLAKHAN.

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HASEENA BANU, AGED ABOUT 47 YEARS, W/O LATE SYED BASHA.

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SANULLA, AGED ABOUT 29 YEARS, S/O SYED BASHA.

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SAIFULLA, AGED ABOUT 27 YEARS, S/O SYED BASHA.

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SADATH, AGED ABOUT 25 YEARS, S/O SYED BASHA.

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ZABIULLA, AGED ABOUT 22 YEARS, S/O SYED BASHA.

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SYED SHARIFF, AGE MAJOR, S/O SYED GHOUSE.

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RESPONDENTS NO.2 TO 9 ARE R/O HIMMATHNAGAR, CHITRADURGA CITY - 577 501.

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S. IQBAL, S/O LATE SUBHAN SAB, AGED ABOUT 41 YEARS.

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S. NAWAB SAB, S/O LATE SUBHAN SAB, AGED ABOUT 38 YEARS.

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S. AFSAR BASHA, LATE SUBHAN SAB, AGEDA ABOUT 34 YEARS.

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NAYAZ BASHA,

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LATE SUBHAN SAB, AGED ABOUT 32 YEARS.

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RESPONDENT NO.10 TO 13 ARE R/O HIMMATH NAGAR, CHITRADURGA CITY - 577 501.

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…RESPONDENTS

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(BY SRI. S. JAVEED, AMICUS CURIAE FOR R2 TO R13; R1 - NOTICE SERVED)

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THIS MSA IS FILED UNDER SEC.43 RULE 1(u) R/W SEC.104 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 11.10.2013 PASSED IN R.A.NO.13/2013 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE, CHITRADURGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 14.2.2007 PASSED IN O.S.NO.284/1995 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN) & JMFC., CHITRADURGA, REMANDING BACK THE O.S.NO.284/1995 FOR FRESH DISPOSAL.

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NC: 2024:KHC:3256 MSA No. 14 of 2014

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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 is filed by the plaintiff Nos.2, 3 and defendant No.6 challenging the judgment and decree passed in R.A.No.13/2013 dated 11.10.2013 by the Court of the II Additional Senior Civil Judge at Chitradurga, (hereinafter referred to as ‘First Appellate Court’ for short), wherein the First Appellate Court has remanded the matter back to the Additional Civil Judge (Jr.Dvn.) & JMFC, Chitradurga (hereinafter referred to as ‘trial Court’ for short).

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The ranks of the parties are stated as per the trial Court for easy reference and convenience.

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Heard learned counsel for the appellants.

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Notice issued to respondents are served but they

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remained absent. Respondent Nos.3 and 4 are women and hence, as per Section 13 of the Legal Services Authority Act, 1987, Amicus Curiae is appointed to assist

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the Court as well as to appear on behalf of the women respondents. Sri.S.Javeed, learned counsel is appointed as Amicus Curiae and counsel for the respondents in this regard.

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The plaintiffs have filed suit to declare that they are the absolute owners of the suit schedule property and for mandatory injunction to remove structures on the suit schedule property. The trial Court has decreed the suit of the plaintiff. Being aggrieved by this decree, the legal representatives of defendant No.1 preferred regular appeal in R.A.No.13/2013 before the First Appellate Court and the First Appellate Court has set aside the decree in its entirety and remanded the case to the trial Court for fresh disposal. This order of remand is challenged by the appellants in the present appeal.

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Learned counsel for the appellants submitted that the regular appeal is preferred only by the legal representatives of defendant No.1. Other defendants have not challenged the judgment and decree of the trial Court.

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Hence, setting aside the decree even though defendant Nos.2 to 5 have not challenged is not correct and is illegal. He further submitted that the legal representatives of defendant No.1 have preferred appeal before the First Appellate Court after seven years and have not given proper explanation for delay. There are no proper evidence/material placed before the First Appellate Court and the First Appellate Court has mechanically set aside the judgment and decree of the trial Court and has remanded the case erroneously. He further submitted that the suit property is measuring 45 x 75 feet in which, all the defendants were residing. Defendant Nos.2 to 4 were served with notice and have engaged service of the advocate. When this being the case, it cannot be imagined that defendant Nos.1 and 5 have not been served and did not know the suit proceedings. Therefore, it is submitted that defendant Nos.1 and 5 were sitting on the fence and are aware of the proceedings and after decreeing the suit by the trial Court, the legal representatives of defendant No.1 have preferred regular

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NC: 2024:KHC:3256 MSA No. 14 of 2014

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appeal and got it remanded back to the trial Court by falsely contending that they have not been served with notice. Therefore, he submitted that upon considering the facts of the case, the legal representatives of defendant No.1 have played very tactic role before trial Court in order to harass the plaintiffs. Hence, prays to set aside

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the judgment and decree passed by the First Appellate Court by confirming the judgment and decree passed by the trial Court.

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On the other hand, learned counsel for the respondents – defendants submitted that in so far as defendant No.1 is concerned, suit summons were not served on him and on 13.03.2013, when Surveyor came near his house in Ex.No.20/2007 to execute the warrant, they came to know regarding the decree passed in trial Court and immediately preferred appeal before the First Appellate Court and it is rightly considered by the First Appellate Court and there is no fault found in remanding

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the matter back to the trial Court. Therefore, prays to dismiss the appeal.

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The suit is filed for declaration, possession and mandatory injunction against the defendants. The suit summons to defendant Nos.2 to 4 was served and they have engaged an advocate on behalf of them. The trial Court has noted down that defendant Nos.1 and 5 even though notice has been served to them, they remained absent and were placed exparte and hence, the trial Court proceeded to pass judgment and decree by placing defendant Nos.1 and 5 as exparte. The trial Court has decreed the suit. The legal representatives of defendant No.1 have preferred appeal before First Appellate Court after delay of seven years by contending that they have not been served with summons. It is the case of plaintiffs that in the suit property measuring 45 x 75 feet, when five families are residing, it cannot be believed that only defendant Nos.2 to 4 have been served with summons and defendant Nos.1 and 5 have not been served with

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summons and they did not know the suit proceedings. There is a delay of seven years in preferring the appeal before the First Appellate Court for which, the explanation afforded by legal representatives of defendant No.1 is that suit summons has not been served on defendant No.1. When defendant Nos.2 to 4 were served and defendant Nos.1 and 5 are residing in same portion of area just opposite/adjacent to defendant Nos.2 to 4, it cannot be believed that defendant Nos.1 and 5 did not know the suit proceedings. If it is their specific allegation that, they have not been served with suit summons, then the officials

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of the District Court, who are responsible for serving summons to defendant Nos.1 and 5 could have been examined. But, they have not been examined.

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The plaintiffs have denied the contents of the affidavit filed for condonation of delay by the defendant No.1. When this being the case, contesting on the factual matrix regarding service of suit summons, then it would be incumbent upon the First Appellate Court to examine

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the bailiff with regard to service of summons on the defendant Nos.1 and 5, but the same has not been done. When there is an enormous delay of seven years in filing the appeal, the legal representatives of defendant No.1 are not examined and they have not produced any record with regard to said aspect. An explanation is offered by

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the legal representatives of defendant No.1 that suit summons were not served upon them. Then it is bounden duty upon the legal representatives of defendant No.1 to examine the official of the Court to prove that they have not been served with the suit summons. In this regard,

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the First Appellate Court only by accepting the affidavit filed for condonation of delay when it is countered by the plaintiffs has set aside the judgment and decree of trial Court, is not correct. Furthermore, judgment and decree

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of the trial Court is challenged only by the legal representatives of defendant No.1 and not by other defendants. Therefore, in so far as defendant Nos.2 to 5 are concerned, the judgment and decree is binding on them and when this being the legal position, defendant

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NC: 2024:KHC:3256 MSA No. 14 of 2014

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Nos.2 to 5 have not challenged the judgment and decree

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then is biding on the defendant Nos.2 to 5.

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Upon considering the facts and circumstances of the case and evidence on record, particularly when it is alleged by the legal representatives of defendant No.1 that they have not been served summons, it cannot be believed that defendant Nos.1 and 5 did not know the suit proceedings when defendant Nos.2 to 4 have served summons even though they all are residing in the same place. The defendant Nos.2 to 4 have engaged the services of advocate and has also contested the suit by cross-examining the plaintiffs. When this being the case, it is unbelievable that defendant Nos.1 and 5 did not know the suit proceedings. Therefore, it is proved that legal representatives of defendant No.1 were sitting on the fence and observing the suit proceedings and when the trial Court has decreed the suit against defendant No.1, then they have taken a chance of filing appeal before the First Appellate Court by pleading their ignorance regarding

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the suit proceedings have played tactics just to drag the proceedings. The legal representatives of the defendant No.1, who are residing in same address, certainly must have known about the proceedings initiated through defendant Nos.2 to 4. Inspite of it, the appeal is filed after delay of seven years and the First Appellate Court has remanded the case to the trial Court, which is not warranted. Furthermore, when defendant Nos.2 to 5 have not challenged the judgment and decree of trial Court, the First Appellate Court has set aside the judgment and decree of the trial Court in its entirety making applicable to defendant Nos.2 to 5 also, is not correct. Thus, the judgment and decree passed by the First Appellate Court is liable to be set aside by confirming the judgment and decree passed by the trial Court.

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Sri.S.Javeed, learned counsel is appointed as Amicus Curiae by this Court and learned Amicus Curiae has assisted well in the case enabling the Court to come to right conclusion. Therefore, his services is placed on

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record. The Secretary, High Court Legal Services Committee is directed to pay professional fee as per norms upon production of certified copy of this judgment.

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Hence, I proceed to pass the following:-

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ORDER

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i. The appeal is hereby allowed .

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ii. The judgment and decree passed in R.A.No.13/2013 dated 11.10.2013 by the Court of the II Additional Senior Civil Judge, Chitradurga is hereby set aside by confirming the judgment and decree passed in O.S.No.284/1995 dated 14.02.2007 by the Additional Civil Judge (Jr.Dvn.) and JMFC, Chitradurga.

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iii. No order as to costs.

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In view of disposal of the main appeal, pending

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I.A.No.2/2014 does not survive for consideration.

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Sd/JUDGE

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MH/-

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CT:SNN

B.T.Puttappa v. B.C.Anurupa

Case brief

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B.T.Puttappa v. B.C.Anurupa

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