Allowed

Sri.Anjanappa v. Sri.R.Ramu

Karnataka HC2 Sept 2024RFA/532/2016

Case brief

AI extract

What is this about?

Fourth defendant in a permanent injunction suit, who had not filed a written statement, appealed against the trial court's decree. The High Court set aside the judgment on payment of costs, restored the suit for trial along with a pending related agreement-to-sell/will suit.

What did the court decide?

Impugned judgment and decree set aside on payment of Rs.10,000 cost by appellant to plaintiff; suit O.S.No.3695/1998 restored and to be tried with O.S.No.6478/2013.

Sri.Anjanappa Vs Sri.R.Ramu — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:35467 RFA No. 532 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF SEPTEMBER, 2024 BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO. 532 OF 2016

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BETWEEN:

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SRI.ANJANAPPA, AGED ABOUT 52 YEARS, S/O LATE RAMARAJU, RESIDING AT #32, 8^TH MAIN, BEML LAYOUT, 5^TH STAGE, RAJARAJESHWARINAGAR, BANGALORE – 560 098.

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…APPELLANT

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(BY SRI. V SRINIVASA RAGHAVAN., SENIOR COUNSEL A/W SRI. RAGHAVENDRA PRASAD M S.,ADVOCATE)

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AND:

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Digitally signed by SHARADA VANI B Location: HIGH COURT OF KARNATAKA

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SRI.R.RAMU, AGED ABOUT 58 YEARS, S/O LATE RAMARAJU, NO.107/2, 11^TH C CROSS, PADARAYANAPURA, BANGALORE-560 026.

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SRI G. VARADARAJA NAIK, AGED ABOUT 50 YEARS, S/O LATE G.R.NAIK, NO.6,K.R.ROAD, BANGALORE-560 004.

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SRI. R JAGANNATH, AGED ABOUT 67 YEARS, S/O LATE RAMARAJU, RESIDING AT NO.107/2, 11^TH CROSS, PADARAYANAPURA, BANGALORE-560 026.

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NC: 2024:KHC:35467 RFA No. 532 of 2016

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SRI.R.SATHYANARAYANA SINCE DEAD, REPRESENTED BY THEIR LEGAL HEIRS R1 & R3

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AMENDED V.C.O DATED 08/01/2024

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…RESPONDENTS

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(BY SRI.CYRIL PRASAD PAIS.,ADVOCATE FOR R2; R1 & R3 ARE SERVED AND UNREPRESENTED; V.C.O DATED 8/1/24, R1 & R3 ARE TREATED AS LRS OF R4)

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THIS RFA FILED UNDER SECTION 96 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 16.07.2010, PASSED IN O.S.NO.3695/1998 ON THE FILE OF THE V ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR PERMANENT INJUNCTION.

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THIS RFA, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri. V. Srinivasa Raghavan, learned Senior

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counsel appearing for the appellant and Sri. Cyril Prasad Pais for Respondent No.2. Though the matter is listed for admission, by consent of the parties, is taken up for final disposal.

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Fourth defendant in O.S.No.3695/1998 has filed

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present appeal challenging the validity of the judgment and decree passed in O.S.No.3695/1998 dated

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16.07.2010.

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NC: 2024:KHC:35467 RFA No. 532 of 2016

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Facts in brief which are utmost necessary for

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disposal of the appeal are as under:

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a) Plaintiff being one of the sons of Sri. Late Ramaraju, filed a suit against Varadaraj Naik, Jagannath, R Sathyanarayana and Anjanappa for the relief of permanent injunction. Fourth defendant appeared in the suit and did not chose to file Written Statement and therefore, the suit proceeded without the Written Statement of the fourth defendant and came to be decreed. Plaintiff contended that Plaintiff, defendant Nos. 2 and 3 are the sons of one Ramaraju and fourth defendant is the son born to Ramaraju through his second wife. It is the contention of the plaintiff that father of the plaintiff Ramaraju was granted the suit land in his individual capacity on 28.02.1079. Thereafter Revenue entries were mutated in the name of his father Ramaraju and he continued in the possession of the property till his death. Therefore, the plaintiff contended that it is the

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plaintiff and defendant Nos. 2 and 3 have succeeded to the

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suit property.

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b) It is also the contention of the plaintiff that an agreement allegedly having been executed by Ramaraju in favour of the first defendant in respect of the suit property in active collusion with defendant Nos. 2 to 4 and plaintiff is residing in a house with asbestos sheet roof, built in the suit property and the defendants are trying to interfere with the peaceful possession and enjoyment of the suit property. Therefore, sought for an order of injunction.

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c) Plaintiff also contended that a suit in O.S.No.3607/1994 was filed against his father Ramaraju and other brothers for partition and the same is also pending. First defendant said to have filed a suit in O.S.No.2632/1996 and obtained an order of injunction.

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d) In response to the suit summons, defendant Nos.

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1, 3 and 4 appeared through their advocates and suit against second defendant came to be dismissed.

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Defendant Nos. 3 and 4 did not chose to file any Written Statement and it is only first defendant who contested the suit by filing the Written Statement contending that father of the plaintiff and defendant Nos. 2 to 4 entered into an agreement with him and agreed to sell the property and advance amount of Rs.2,50,000/- was paid.

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e) Because of the old age of the Ramraju, he could not execute the sale deed and therefore, he executed a Will on 21.10.1995 bequeathing the suit property in favor of the first defendant and therefore sought for dismissal of the suit.

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f) Based on rival contentions of the parties, the

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learned trial judge raised the following issues:

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“1. Whether the plaintiff proves his lawful possession over suit schedule property?

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2. Whether the plaintiff further proves the unlawful interference by the defendants over the suit schedule property?

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3. What order or decree?”

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g) In order to prove the case of the plaintiff, plaintiff

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got examined himself as PW1 and placed on record 33 documents which are exhibitted as Ex.P1 to Ex. P33. There were four more witnesses who were examined on behalf of the plaintiff as PW2 to PW5. As against the evidence placed on record by the plaintiff, the first defendant got examined himself as DW1 and one G Ramu as DW2 and placed on record the Will dated 21.10.1995 as Ex.D1.

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h) Learned trial judge after hearing the parties, decreed the suit of the plaintiff restrained all the defendants from interfering with the peaceful possession and enjoyment of the plaintiff over the suit property. Being aggrieved by the same, the fourth defendant has filed the present appeal.

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Sri. Srinivasa Raghavan, learned Senior Counsel representing the appellant, reiterating the grounds urged in the Appeal Memorandum contended that admittedly the fourth defendant did not file the Written Statement. But

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having regard to the averments made in the plaint itself that the fourth defendant having been born to Ramaraju through the second wife, and suit property being the self acquired property of the Ramaraju; Ramaraju having died intestate, all the children of the Ramaraju; and his wife if surviving, are entitled to equal share in the suit property. Therefore, the approach of the trial court in decreeing the suit against the fourth defendant who is a co-owner is totally uncalled for, resulting in miscarriage of justice and sought for allowing the appeal.

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Before this court plaintiff and other defendants have remained absent though duly served with notice of the appeal. It is the first defendant who is second respondent in this appeal has engaged the services of Mr. Cyril Prasad Pais, learned advocate.

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Sri. Cyril Prasad contends that Ramaraju had entered into an agreement to sell with the first defendant in the suit and obtained a sum of Rs.2,50,000/- as advance sale consideration and he could not conclude the

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sale transaction and therefore, he had executed a Will which is the subject matter of O.S.No.6478/2013 pending on the file of learned Additional City Civil Judge, Bengaluru, which was dismissed for non-prosecution as is submitted by learned Senior Counsel appearing for the appellant.

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First defendant has also challenged the impugned judgment in the present appeal in RFA No.1509/2010 which was dismissed with liberty to the first defendant to workout his remedy before the appropriate forum by filing appropriate suit. Pursuant to which, the first defendant now filed a suit in O.S. No.6478/2013, which is pending for adjudication.

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In the meantime, fourth defendant has field this Appeal which is impermissible as he did not contest the suit and he is not an aggrieved party is the submission on behalf of the learned counsel for second defendant and sought for dismissal of the appeal.

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NC: 2024:KHC:35467 RFA No. 532 of 2016

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Having heard the parties, this court perused the

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material placed on record meticulously and on such perusal of the material on record, it is clear that fourth defendant did not chose to file Written Statement in the trial court in O.S.No.3695/1998 though he had engaged the services of a counsel. Therefore, strictly speaking, the fourth defendant cannot have any grievance insofar as the decreed injunction. Nevertheless, since the fourth defendant is admittedly a co-owner as could be seen from the plaint averments and the position of law as it stands today, there cannot be injunction against co-owner.

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If the fourth defendant is permitted to contest the suit by filing the Written Statement and the suit in O.S.No.3695/1998 is restored on payment of cost of Rs.10,000/- (Rupees Ten Thousand) only payable by the fourth defendant to the plaintiff and tried along with O.S. No.6478/2013, all the disputes inter se between plaintiff and defendant Nos. 2 to 4 and the dispute with the first defendant would get resolved once and for all.

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NC: 2024:KHC:35467 RFA No. 532 of 2016

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Accordingly, without expressing any opinion on

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the merits of the matter, following order is passed:

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ORDER

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1. The appeal is allowed.

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1. Impugned judgment and decree is set aside on payment of cost of Rs.10,000/- (Rupees Ten Thousand) only payable by the appellant to the plaintiff in O.S.No.3695/1998.

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1. On payment of cost of Rs.10,000/- on or before 20.09.2024, the suit in O.S. No.3695/1998 shall stand restored.

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1. The appellant and second respondent shall appear before the trial court without further notice on 25.09.2024 and present suit shall be tried along with O.S.No.6478/2013.

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1. Copy of this order be communicated to the learned Principal District Judge, City Civil Court, Bengaluru for appropriate orders in tagging of the present suit on restoration along with O.S.No.6478/2013 to be tried together.

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NC: 2024:KHC:35467 RFA No. 532 of 2016

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1. The trial court thereafter, shall secure the

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presence of the plaintiff and other defendants by issuing the court notices and proceed with the case in accordance with law.

Sd/-

(V SRISHANANDA)

JUDGE

Bsv List No.: 1 Sl No.: 46

Sri.Anjanappa v. Sri.R.Ramu

Case brief

What is this about?

What did the court decide?

Sri.Anjanappa v. Sri.R.Ramu

Case brief

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