Dismissed

K. B. Puttasiddaiah v. Smt. Arogkya Mary Dead by Her Lrs

Karnataka HC7 Feb 2024RSA/1252/2023

Case brief

AI extract

What is this about?

In a bare suit for permanent injunction, where the sole contesting defendant died pendente lite and the suit abated against him, the cause of action being personal in nature does not survive against his legal heirs who were never impleaded or arrayed as parties. Where further the property over which injunction was decreed is different and distinct from that claimed by the appellant, no substantial question of law arises under Section 100 CPC. Second appeal dismissed with liberty to avail available remedies regarding his own claimed property.

What the court decided

AI extract

K. B. Puttasiddaiah Vs Smt. Arogkya Mary Dead by Her Lrs — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:5252 RSA No. 1252 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH DAY OF FEBRUARY, 2024 BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 1252 OF 2023 (INJ)

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BETWEEN:

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K. B. PUTTASIDDAIAH S/O. LATE BORAIAH, AGED ABOUT 69 YEARS, R/AT HOUSE NO. 28, 5TH CROSS, DWARAKANAGAR, 100 FEET ROAD, BSK III STAGE, BENGALURU-560 085.

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…APPELLANT

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(BY SRI. VIJAY KUMAR T.,ADVOCATE)

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AND:

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Digitally signed by SUMA B N Location: High Court of Karnataka

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SMT. AROGKYA MARY DEAD BY HER LRS 1. A PHILOMINA RAJ, S/O. LATE AROGKYA MARY, AGED ABOUT 64 YEARS, R/AT NO. 33, TIMBER LAYOUT, PIPE LINE ROAD, BENGALURU-560 026.

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ANTHAS MARY D/O. AROGKYA MARY, AGED ABOUT 70 YEARS, R/AT NO. 22, 2ND CROSS, AZAD NAGAR, BENGALURU-560 026.

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A. THOMAS DEAD BY HIS LRS.,

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SMT. SAGAI MARY, W/O. LATE A. THOMAS, AGED ABOUT 55 YEARS,

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NC: 2024:KHC:5252 RSA No. 1252 of 2023

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R/AT NO. 10/2-1, B CROSS, 1ST MAIN, NEW GUDDADAHALLI, MYSURU ROAD, BENGALURU-560 026.

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VINCENT JOY S/O. LATE A. THOMAS, AGED ABOUT 36 YEARS, R/AT NO. 10/2-1, B CROSS, 1ST MAIN, NEW GUDDADAHALLI, MYSURU ROAD, BENGALURU-560 026.

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MOSES S/O. LATE THOMAS, AGED ABOUT 34 YEARS, R/AT NO. 10/2-1, B CROSS, 1ST MAIN, NEW GUDDADAHALLI, MYSURU ROAD, BENGALURU-560 026.

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SMT. VIOLET MARY D/O. A. THOMAS, AGED ABOUT 32 YEARS, R/AT LURDNAGAR, SHIVAPURA, HESARAGHATTA ROAD, BENGALURU-562 163.

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YESUDAS DEAD BY LRS.,

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SMT. MARY STELLA, W/O. LATE YESUDAS, AGED ABOUT 57 YEARS, R/AT NO. 65, SONNENAHALLI, VISHWESHWARAIAH LAYOUT,

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NC: 2024:KHC:5252 RSA No. 1252 of 2023

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3RD BLOCK, SOLLAPURADAMMA TEMPLE STREET, BENGALURU-560 056.

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STALWIN S/O. LATE YESUDAS, AGED ABOUT 32 YEARS, R/AT NO. 65, SONNENAHALLI, VISHWESHWARAIAH LAYOUT, 3RD BLOCK, SOLLAPURADAMMA TEMPLE STREET, BENGALURU-560 056.

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ALWIN S/O. LATE YESUDAS, AGED ABOUT 31 YEARS, R/AT NO. 65, SONNENAHALLI, VISHWESHWARAIAH LAYOUT, 3RD BLOCK, SOLLAPURADAMMA TEMPLE STREET, BENGALURU-560 056.

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…RESPONDENTS

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(BY SRI.RAGHAVENDRA.S, ADVOCATE FOR R2-R6

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SRI.M.SRINIVAS GOWDA, ADVOCATE FOR R7 AND R8)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 20.04.2023 PASSED IN RA NO.72/2020 ON THE FILE OF IX ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 12.08.2015 PASSED IN O.S. NO.32/1999 ON THE FILE OF I ADDITIONAL CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU AND ETC.,

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

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NC: 2024:KHC:5252 RSA No. 1252 of 2023

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JUDGMENT

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This appeal is filed by the son of original defendant-late Boraiah aggrieved by the judgment and decree dated 12.08.2015 passed in O.S.No.32/1999 on the file of I Additional Civil Judge, Bengaluru Rural District, Bengaluru (hereinafter 'the Trial Court') decreeing the suit of the plaintiffs for the relief of permanent injunction which is confirmed by the judgment and order dated 20.04.2023 passed in R.A.No.72/2020 on the file of IX Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru. (hereinafter 'the First Appellate Court').

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The above suit is filed by the plaintiffs/respondent Nos.1 and 2 claiming to be children of one Arokia Swamy against one Boraiah and Boramma contending interalia:

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a) That the land in old Sy.No.113/26 new Sy.No.162 measuring 6 acres together with Karab land situated at Uttari Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore was granted in favour of said Arokia Swamy on 14.07.1952 in consideration of his service as Ajamedhar in Mysore Regiment Force by the then Government of Mysore. That upon the request made by the Arokia Swamy to make revenue records in his name, survey and phodi was conducted in which the said land was assigned with new Sy.No.162 and extent determined as 6 acres. Thus the said Arokia Swamy became the absolute owner in possession and enjoyment of the said extent of 6 acres of land with the new survey number assigned as above.

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NC: 2024:KHC:5252 RSA No. 1252 of 2023

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b). The said Arokia Swamy passed away intestate on 14.09.1976 leaving behind the plaintiffs as his legal representatives who have been in possession and enjoyment of the suit property carrying out the agricultural activities thereon.

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c). The defendants without having any right, title and interest based on certain created documents had attempted to interfere with the peaceful possession and enjoyment of the suit property by the plaintiffs. Though a compliant in this regard was lodged before the Jurisdictional Police Station, since no action was taken, plaintiff was constrained to file the suit for injunction.

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Upon service on summons defendant No.1 appeared and filed his written statement. Defendant No.2 appeared but did not file written statement. Defendant No.1 in the written statement while denying the averments made in the plaint contended that the defendant No.2 is not his wife and the real name of his wife was Smt.Honamma. The claim of the plaintiff being in possession of 6 acres of land is denied. It is contended that Sy.No.113 consists of about 100 acres, the claim of the plaintiff regarding the grant and revenue records having been made in name of Arokia Swamy is also denied. The very existence of person called Arokia Swamy is also denied. It is further contended that the defendant No.1 had purchased 4 acres of land in Sy.No.113/23 in terms of deed of sale dated 20.05.1969 and that having purchased the same defendant had enclosed the same by installing fencings and has been in possession and enjoyment of the of the same. It is also

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NC: 2024:KHC:5252 RSA No. 1252 of 2023

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contended that the defendant No.1 himself has filed a suit in O.S.No.256/1999 against the plaintiffs and the same was pending consideration. Hence, sought for dismissal of the suit.

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Based on the pleading, trial Court framed following issues:

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"1. Whether the plaintiffs prove that they are in actual possession and enjoyment of the suit schedule property as on the date of filing of the suit?

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2. Whether the plaintiffs prove the alleged defendants interfered and obstructed while the peaceful enjoyment of the suit schedule property by the plaintiffs?

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3. What order or decree?"

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Plaintiff No.1 examined himself as PW-1 and exhibited 11 documents marked as Ex.P-1 to P-11. Records reveal that by the time evidence of defendants could be recorded, the defendant No.1 passed away and suit against the defendant No.1 was treated as abated. An application has been filed by the appellant herein seeking to implead him as defendant No.3 which application came to be rejected on 19.01.2009. The trial Court on appreciation of pleadings and evidence answered issue Nos.1 to 2 in the affirmative and consequently decreed the suit granting relief of permanent injunction against to the defendant No.2 restraining them from interfering with possession and enjoyment of the suit schedule property by the plaintiff by the judgment and decree dated 12.08.2015.

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Being aggrieved by the same, appellant herein claiming to be son of original defendant No.1 and

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NC: 2024:KHC:5252 RSA No. 1252 of 2023

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Smt.Honamma wife of said defendant No.1 filed an regular appeal in R.A.No.72/2020 before the First Appellate Court.

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An application filed under Order XLI Rule 27 R/w Section 151 of the CPC was also filed seeking production additional documents. The First Appellate Court framed following points for its consideration:

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"1. Whether the plaintiffs proves that they are in actual possession and enjoyment of the suit schedule property as on the date of filing of the suit?

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2. Whether the plaintiffs prove the alleged defendants interfered and obstructed while the peaceful enjoyment of the suit schedule property by the plaintiffs?

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3. What order or decree?"

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On re-appreciation of the evidences, the First Appellate Court answered point No.1 in the negative to point No.2 in the affirmative and consequently dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same appellant herein claiming to be son of original defendant No.1 is before this Court.

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Sri.B. Roopesha, learned counsel for the appellant reiterating the grounds urged in the memorandum of the appeal submitted:

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i. That the Trial Court and the First Appellate Court without adverting to the identity of the suit schedule property have proceeded to grant the relief of permanent injunction. In that he submits that though the plaintiffs in the plaint has pleaded that she was the absolute owner in possession and enjoyment of the farm house along with vacant land bearing

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NC: 2024:KHC:5252 RSA No. 1252 of 2023

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old Sy.No.113, new Sy.No.162 had never pleaded that she was the owner of land bearing Sy.No.113/26. That Sy.No.113/26 was never mentioned in the plaint.

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ii. He further submitted that taking advantage of decree of permanent injunction, the plaintiffs are claiming the property which belonged to the appellant and which is in his possession. He further submits that Arokia Swamy the husband and the father of the plaintiffs respectively had indeed sold the property which was granted in his favour in terms of deed of sale dated 13.06.1991 in favour of one Sri.Sathya Kumar Patil, who in turn sold the said property to Sri.Sridharan as such he insists that the suit schedule property as described and being claimed by the plaintiff is not in existence. He submits that the Trial Court and the First Appellate Court without adverting this aspect of the matter have erred in granting a relief of permanent injunction in respect of non existing property. He also submits that attempt made by the appellant to produce additional evidence by filing an application under Order XLI Rule 27 R/w Section 151 of the CPC has also been negated, causing injustice and prejudice to the appellant. Giving raise to substantial question of law required to be considered at the hands of this Court.

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In response, Sri.Raghavendra.S, learned counsel for the respondents/plaintiff raises the questions with regard to very maintainability of the appeal. He submits that the suit is one for bare injunction against the original defendant-Boraiah and one Boramma. He submits that said Boramma had appeared but did not contest the matter. However, original

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NC: 2024:KHC:5252 RSA No. 1252 of 2023

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defendant-Boraiah had passed away during the pendency of the suit and suit was treated to having been abated against the defendant No.1. He submits that the relief being in personam , there was no reason for the appellant to have taken upon himself the matter and filed the appeal as the cause of action did not survive against the appellant. He relies upon the judgment of the Co-ordinate Bench of this Court passed in the case of Smt.Venkubai (deceased) by L.Rs Vs. The Assistant Commissioner, Sedam, Gulbarga District and another reported in (1998) 5 Karnataka LJ 171 and also the Order of the Co-ordinate Bench of this Court by its Order dated 12.10.2018 passed in W.P.No.15445/2018 between Smt.Usha Gopal Gowda Vs Sri.M.T.Tharanath.

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As regards, merits of the matter the learned counsel submits that the grant made in favour of Arokia Swamy on 14.07.1952 was in respect of 7 acres 20 guntas was in Sy.No.113 which is subsequent to the survey and phodi was reassigned with Sy.No.162 and measurement was restricted to 6 acres. He submits that the plaintiffs have produced revenue records, survey sketches and mutation register extract to evidence assignment of new Survey Number as Sy.No.162. He also submits that the identity of the property being claimed by the plaintiff has been sufficiently established. It is his further submission that on the other hand property being claimed by the appellant/original defendant to have been purchased under the deed of sale dated 20.05.1969 is different and distinct. As such he submitted that even on that ground the appeal is not maintainable. He submits that no substantial question of law

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NC: 2024:KHC:5252 RSA No. 1252 of 2023

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would arise for consideration, hence seeks for dismissal of the appeal.

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Heard. Perused the records.

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The property in respect of which the suit filed by plaintiffs is Sy.No.113/26 new Sy.No.162, situated at Uttari Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore measuring 6 acres with kharab land bounded on: East by; Government Road, West by; forest land, North by; Forest land and South by; Private Land.

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In the written statement defendant No.1 has claimed that he acquired the property under deed of sale dated 20.05.1969. The description of the property as given in the written statement reads as Sy.No.113/23 new Sy.No.162, measuring 4 acres, situated at Uttari Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore bounded on: East by; private property, West by; forest land, North by; 30ft Road and South by; private property and forest land. However, the sale deed dated 20.05.1969, does not contain any such description as claimed by the defendant.

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On a query by this Court, learned counsel for the appellant sought to refer the grant Order which had been made in favour of the vendor of the defendant No.1 namely-Kullaiah on 28.09.1955. Perusal of which also do not indicate any identity of the property except stating that the said land is as per the sketch and no document/sketch even in this regard has been produced.

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NC: 2024:KHC:5252 RSA No. 1252 of 2023

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Thus the Trial Court and the First Appellate Court having taken note of these aspect of the matter have held that the property being claimed by the plaintiffs are completely different and distinct, from the one claimed by the defendant.

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Be that as it may. The suit being one for bare injunction filed against Boraiah who passed away during the pendency of the suit. Cause of action for suit could not survive against the appellant herein who claims to be the son of the original defendant-Boraiah. There is no averments/allegation in the plaint against the legal representatives of the aggrieved defendant. Cause of action in the matter being personal ended with death of defendant No.1, more particularly when the injunction is granted in respect of the suit property which is different and distinct from one being claimed by the appellant.

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In that view of the matter, no substantial question of law would arise for consideration. However, it is made clear that appellant who is claiming the right over the suit property as described by him, is at liberty to avail such remedy, if available under law.

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Sd/JUDGE

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List No.: 2 Sl No.: 27

K. B. Puttasiddaiah v. Smt. Arogkya Mary Dead by Her Lrs

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K. B. Puttasiddaiah v. Smt. Arogkya Mary Dead by Her Lrs

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