A first appeal over a decree declaring ownership of a disputed society site. The High Court found both parties claim title through separate sale deeds, the defendant's vendor was not made a party, and Order II Rule 2 needed examination. It set aside the decree and remanded for fresh consideration.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:44324 RFA No. 416 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN REGULAR FIRST APPEAL NO. 416 OF 2023 (DEC/INJ-)
BETWEEN:
SMT. VINODA M M S/O MOUNESH M E, AGED ABOUT 39 YEARS, R/AT NO.272, 7TH CROSS, 6TH BLOCK, 2ND STAGE, NAGARBHAVI, BENGALURU - 560 072.
…APPELLANT
(BY SRI. BAPAT SAMPATH VINAYAKA RAO, ADVOCATE)
AND:
Digitally signed by VEDAVATHI A K Location: High Court of Karnataka
SMT. GAYATHRI W/O B. V. MOHAN, AGED ABOUT 52 YEARS, R/AT NO.256, 3RD MAIN ROAD, BHYRAVESHWARANAGAR, SUNKADAKATTE, MAGADI MAIN ROAD, BENGALURU - 91.
…RESPONDENT (BY SRI. JNANESH KUMAR K., ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 25.11.2022 PASSED IN OS No.4444/2017 ON THE FILE OF THE X ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT FOR DECLARATION AND INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
NC: 2024:KHC:44324 RFA No. 416 of 2023
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
ORAL JUDGMENT
Though this matter has come up for admission, with the consent of learned counsels for the parties, the same is taken up for final hearing and disposed of by this judgment.
NC: 2024:KHC:44324 RFA No. 416 of 2023
against the defendant to declare that she is the owner of the suit schedule property bearing old Sl. No.844/775, property No.714, 714/1, 714/2 and 714/3 and site No.345 and present BBMP new No.115 measuring East to West 30 feet and NorthSouth 40 feet situated at Srigandada Kavalu Vasathi Rahitara Sanga, Yeshwanthapura Hobli, Bangalore North Taluk and the same was purchased by the plaintiff under the sale dated 18.04.1996 and she is in possession of the said property. It is the further case of the plaintiff that the defendant interfered with the said property. Therefore, the plaintiff filed the suit for injunction against the defendant and later, she filed a suit for declaration that she is the owner of the suit schedule property and accordingly, prayed for decreeing the suit.
NC: 2024:KHC:44324 RFA No. 416 of 2023
O.S. No.791/2017 and the same was dismissed for non persecution and without obtaining any liberty or prior permission from the court the present suit was filed, which is hit by Order II Rule 2 of CPC. Therefore, the suit requires to be dismissed. It is also contended by the defendant that she has taken a loan of Rs.13,94,000/- for construction of the building and the same was stopped. Hence, prayed for dismissing the suit.
issues:
a.) Whether the plaintiff proves that she is the absolute owner of the suit schedule property?
b.) Whether suit is hit by principles of res-judicata?
c.) Whether Court fee paid is insufficient?
d.) Whether plaintiff is entitled for possession of the suit schedule property?
e.) What order or decree?
NC: 2024:KHC:44324 RFA No. 416 of 2023
and hence, her husband as the SPA holder of the plaintiff has been examined as P.W.2. The defendant has not cross examined P.W.2 nor she has led her evidence and she has also not produced any documents before the court. After hearing the learned counsel for the parties, the trial Court given finding by answering the issues in favour of the plaintiff and passed the judgment by decreeing the suit of the plaintiff. Being aggrieved by the same, the defendant has filed this appeal.
are :
case for allowing the appeal and for remitting the matter back?
(ii) What order ?
belongs to Srigandada Kavalu Vasathi Rahitara Sanga and the sites were formed by the said Society. Initially, the suit schedule property was sold to the vendor of the defendant in the year 1993 and subsequently, the defendant said to be purchased the said site on 21.03.2013 under the sale deed. The plaintiff also claims right over the property by purchasing the same for sale consideration. When both the parties claim right over the same property, it is necessary for the court to decide the issue on merits.
suit for bare injunction in O.S. No.791/2015, which came to be dismissed for non-prosecution. It is submitted by the defendant that there is no liberty or prior permission obtained from the Court for the purpose of filing the suit for declaration which is hit by Order II Rule 2 of CPC. Therefore, the trial Court is required to answer the contention in respect of decreeing the suit. That apart, the vendor of the defendant is not made as a party to the suit. Such being the case, without making the necessary party to the suit, decreeing the suit that the plaintiff is the owner of the property, is not correct. Therefore, I am of
NC: 2024:KHC:44324 RFA No. 416 of 2023
the view that the matter requires to be remitted back to the trial court for fresh consideration and lead evidence and to cross examine P.W.2.
(ii) The judgment and degree passed by the X Additional City Civil and Sessions Judge, Bengaluru, in O.S.No.4444/2017 dated 25.11.2022, is hereby set aside.
(iii) The matter is remitted back to the trial
Court for fresh consideration by giving liberty to the parties to implead necessary parties for deciding the suit on merits.
(iv) The appellant-defendant shall pay cost of Rs.10,000/- to the respondent-plaintiff within two weeks.
(v) The parties shall appear before the trial Court on 28.11.2024, without any further notice.
NC: 2024:KHC:44324 RFA No. 416 of 2023
(vi) The trial Court shall dispose of the matter
as early as possible.
Sd/(K.NATARAJAN) JUDGE
CS List No.: 1 Sl No.: 39 CT:SK
1 issue framed by the court
Should the suit decree be set aside and the matter remanded for fresh trial given competing sale deeds, non-joinder of vendor, and Order II Rule 2 contention?
2 provisions across 1 enactments
Smt. Vinoda M M
Smt. Gayathri w/o B. V. Mohan
K.Natarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
