Allowed

Sri Seenappa v. Venkataramappa @ Venakaravanappa

Karnataka HC11 Sept 2024RSA/867/2014

Case brief

AI extract

What is this about?

Appeal against regular second appeal judgment where High Court allowed second appeal, set aside first appellate judgment passed on one appeal without clubbing pending common appeal, and remitted matter for clubbed disposal.

What did the court decide?

Impugned judgment dated 29.01.2014 set aside; regular second appeal allowed; appeal restored to original file for reconsideration with direction to club both regular appeals and pass common judgment.

Sri Seenappa Vs Venkataramappa @ Venakaravanappa — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:37325 RSA No. 867 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF SEPTEMBER, 2024

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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. 867 OF 2014 (DEC/INJ)

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BETWEEN:

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SRI SEENAPPA S/O.THIMMAIAH, AGED ABOUT 59 YEARS, R/AT CHIKKAPADMAGHATTA VILLAGE, KAPPALAMADUGU GRAM PANCHAYATH, KASABA HOBLI, MULBAGAL TALUK, KOLAR DISTRICT-563 101.

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…APPELLANT

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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(BY SRI. GAGAN.S., ADVOCATE FOR SRI. G A SRIKANTE GOWDA., ADVOCATE)

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AND:

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VENKATARAMAPPA @ VENKARAVANAPPA S/O.CHANGE GOWDA, AGED ABOUT 56 YEARS,

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NARAYANASWAMY V S/O.VENKATARAMAPPA @ VENKARAVANAPPA, AGED ABOUT 30 YEARS,

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SANTOSH V

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S/O.VENKATARAMAPPA @ VENKARAVANAPPA, AGED ABOUT 28 YEARS,

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ALL ARE RESIDING AT CHIKKAPADMAGHATTA VILLAGE, KAPPALAMADUGU GRAM PANCHAYATH, KASABA HOBLI, MULBAGAL TALUK, KOLAR DISTRICT-563 101.

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…RESPONDENTS

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(BY SMT SUNANDA SARKAR, ADVOCATE FOR SRI. RAHUL.P. AND ROHITH ADVOCATES FOR R-1 TO R-3)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 29.01.2014 PASSED IN R.A. NO.31 OF 2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, KOLAR (ITINERATING AT MULBAGAL), DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.12.2010 PASSED IN O.S. NO.11 OF 2005 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN.), MULBAGAL

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TRIAL COURT DECREED THE SUIT APPELLATE COURT DISMISSED THE APPEAL

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SUIT FOR DECLARATION AND MANDATORY INJUNCTION.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM : HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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The plaintiff in O.S. No.11 of 2005 has filed this regular second appeal challenging the judgment and decree dated 29.01.2014 passed in R.A. No.31 of 2011 by the II Additional Senior Civil Judge and JMFC, Kolar, itinerating at Mulbagal and also the judgment and decree dated 16.12.2010 passed in O.S. No.11 of 2005 by the Additional Civil Judge (Jr.Dn.) and JMFC, Mulbagal.

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For convenience, the parties are referred to as per their ranking before the Trial Court.

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Venkataramappa (defendant No.1 in O.S. No.11 of 2005) filed a suit in O.S. No.251 of 2002 for the relief of permanent injunction against Seenappa (plaintiff in O.S. No.11 of 2005) and two others.

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Seenappa also filed a suit in O.S. No.11 of 2005 for the relief of declaration and permanent injunction against Venkataramappa and two others.

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In O.S. No.251 of 2002 :

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It is the case of the plaintiff—C. Venkataramappa that he is the absolute owner in possession and enjoyment of the house property bearing its old assessment and demand register No.36 and new No.79 measuring east to west 25 feet and north to south 23 feet, situated at Padmagatta village Mulbagal Taluk.

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It is contended that the plaintiff had purchased the property from one Munishamappa and his sons under the registered sale deed dated 12.09.1994. The plaintiff had constructed a house in the suit schedule property and residing therein. That the defendants have no right, title or interest over the suit schedule property.

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The defendants were making attempts to construct a building without leaving any passage towards the eastern and northern sides and were attempting to lay a foundation and trying to block the windows towards the

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NC: 2024:KHC:37325 RSA No. 867 of 2014

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northern side. Hence, a cause of action arose for the plaintiff to file a suit for permanent injunction.

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The defendants filed a written statement denying the averments made in the plaint, and it was contended that the defendants were the absolute owners in lawful possession of the property bearing Sy.No.43/1A measuring 38 guntas situated at Chikkapadmagatta village, and it is contended that the plaintiff has encroached upon their property, which is situated towards the northern and eastern side of the plaintiff’s property. The plaintiff had encroached on the defendants’ property, measuring east to west 13 feet and north to south 2 feet. It is contended that the plaintiff is not entitled to the relief claimed in the plaint, and hence, they prayed for dismissal of the suit.

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In O.S. No.11 of 2005 :

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The present appellant—Seenappa had filed a suit in O.S. No.11 of 2005 for the relief of declaration and permanent injunction. It is the case of the plaintiff herein

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that he is the absolute owner in possession and enjoyment of the property bearing Sy.No.43/1A measuring 38 guntas situated at Chikkapadmaghatta village. Originally, the said property belonged to Sripada Mutt. Defendant No.1 has constructed a house encroaching upon a portion of the plaintiff’s property. It is also contended that defendant No.1 had filed a suit in O.S. No.251 of 2002 for the relief of permanent injunction.

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The defendants (who are plaintiffs in O.S. No.251 of 2002) filed their written statement reiterating the plaint averments in O.S. No.251 of 2002.

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The Trial Court clubbed both suits and framed the relevant issues.

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The plaintiff in O.S. No.11 of 2005 was examined as PW-1, examined two witnesses as PWs-2 and 3, and got marked ten documents as Exs.P-1 to 10. On the other hand, defendant No.1 in the said suit (plaintiff in O.S. No.251 of 2002) was examined as DW-1 and examined

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NC: 2024:KHC:37325 RSA No. 867 of 2014

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one witness as DW-2 and got marked 23 documents as Exs.D-1 to 23.

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The Trial Court, after recording evidence, on hearing both sides and on assessment of oral and documentary evidence on record, answered issue Nos.1 to 3 in O.S. No.11 of 2005 in the negative and issue No.4 as per the final order and ultimately, the suit of the plaintiff in O.S. No.11 of 2005 was dismissed with costs.

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Issue Nos.1 and 2 in O.S. No.251 of 2002 were answered in the affirmative, and issue No.3, as per the final order, and the suit of the plaintiff in O.S. No.251 of 2002, was decreed with costs. It was decreed that the defendants and all the persons claiming through or under them were restrained from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property and also restrained the defendants from laying any foundation in their property without leaving any setback area and restrained the defendants from blocking the

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windows towards the northern and eastern side of the plaintiff’s property.

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As against the said judgment and decree, the Seenappa—plaintiff in O.S. No.11 of 2005 (defendant No.1 in O.S. No.251 of 2002) preferred regular appeals in R.A. Nos.30 of 2011 and 31 of 2011 before the Court of II Additional Senior Civil Judge and JMFC, Kolar, itinerating at Mulbagal.

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The First Appellate Court, without clubbing both the appeals, dismissed the appeal in R.A. No.31 of 2011 vide judgment dated 29.01.2014.

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As stated earlier, being aggrieved by the judgments

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and decrees of both the Courts below, Seenappa—the plaintiff in O.S. No.11 of 2005 (defendant No.1 in O.S. No.251 of 2002), filed this regular second appeal.

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Heard the learned counsel appearing for the plaintiff in O.S. No.11 of 2005 (Seenappa—defendant No.1 in O.S. No.251 of 2002), and the learned counsel appearing for

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the plaintiff in O.S. No.251 of 2002 (Venkataramappa— defendant No.1 in O.S. No.11 of 2005).

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Learned counsel for defendant No.1 in O.S. No.11 of 2005 submitted that defendant No.1, being aggrieved by the common judgment passed in O.S. No.11 of 2005 and O.S. No.251 of 2002, preferred regular appeals in R.A. Nos.30 of 2011 and 31 of 2011.

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The First Appellate Court could have clubbed both the appeals and passed a common judgment. But, in the first instance, the First Appellate Court dismissed the appeal in R.A. No.30 of 2011 for non-prosecution and subsequently restored the said appeal to its original file, and the same is still pending consideration. It is submitted that the First Appellate Court has passed a judgment in R.A. No.31 of 2011 dismissing the appeal. Hence, he submitted that the judgment and decree passed in R.A. No.31 of 2011 be set aside, and remitted to the First Appellate Court with a direction to club both R.A.

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Nos.30 of 2011 and 31 of 2011 and pass a common judgment.

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Per contra , learned counsel for the plaintiff in O.S.

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No.251 of 2002 supported the impugned judgment and decree, and she submits that as on the date of passing the judgment in R.A. No.31 of 2011, the regular appeal in R.A. No.30 of 2011 was pending. She submitted that when R.A. No.30 of 2011 was taken on Board, the learned counsel for the appellant sought time and the First Appellate Court dismissed the appeal for non-prosecution and later, the appeal stood restored to its file. Hence, on these grounds, she sought to dismiss the appeal.

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The present regular second appeal was admitted to consider the following substantial questions of law:

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“1. Were the Courts below justified in dismissing the suit for declaration without hearing the connected RA No.30/2011 and RA 31/11, which were filed against the common judgment and decree dated

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16.12.2010 made in O.S.No.11/2005 and O.S.No.251/2002?

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Were the Courts below justified in decreeing the suit of the respondent and dismissing the suit of the appellant without appointing the Court Commissioner to ascertain whether the respondents have constructed the premises within the property measuring 25 feet East to West and 23 feet north to south in accordance with sale deed dated 12.09.1994 as per Ex.D1?

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Were the Courts below justified in dismissing the suit of the present plaintiff and allowing the suit of the defendant in O.S.No.251/2002 without ascertaining the measurement of property of the defendants?”

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The plaintiff in O.S. No.251 of 2002 filed a suit seeking the relief of permanent injunction against Seenappa—appellant herein, and the present appellant herein had also filed a suit in O.S. No.11 of 2005 for declaration. The Trial Court clubbed both the suits, framed the relevant issues and recorded common

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evidence. After recording the common evidence, the Trial Court passed a common judgment dated 16.12.2010 decreeing the suit in O.S. No.251 of 2002 and dismissing the suit in O.S. No.11 of 2005.

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Being aggrieved by the common judgment passed in O.S. No.251 of 2002 and O.S. No.11 of 2005, Seenappa— the appellant herein, preferred separate appeals, registered as R.A. Nos.30 and 31 of 2011.

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The First Appellate Court, without clubbing both these regular appeals, proceeded to dismiss the appeal in R.A. No.31 of 2011 by judgment and decree dated 29.01.2014, while the appeal R.A. No.30 of 2011 was still pending consideration. Hence, the First Appellate Court has committed an error in passing a separate judgment in R.A. No.31 of 2011 without clubbing both the appeals.

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Learned counsel for the respondents herein/defendants in O.S. No.11 of 2005 submitted that R.A. No.30 of 2011 is still pending for consideration on the

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file of the II Additional Senior Civil Judge and JMFC, Kolar. She has produced case status about R.A. Nos.30 and 31 of 2011 from the official website to evidence the same.

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Having considered the submissions of the learned counsel for the parties and perused the material on record, it is pertinent to note that both the appeals R.A. Nos.30 and 31 of 2011 arising out of a common judgment and decree passed in O.S. Nos.251 of 2002 and 11 of 2005. The First Appellate Court dismissed the appeal in R.A. No.31 of 2011 by judgment and decree dated 29.01.2014, while the appeal R.A. No.30 of 2011 is still pending consideration. The First Appellate Court could have clubbed both the appeals and passed a common judgment, taking into consideration the common evidence recorded by the Trial Court. The First Appellate Court has, therefore, fallen in error in passing the impugned judgment in R.A. No.31 of 2011. Hence, I am of the view that the matter requires reconsideration by the First Appellate Court.

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NC: 2024:KHC:37325 RSA No. 867 of 2014

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In view of the above discussion, I answer the

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substantial question of law No.1 in the negative, and the substantial question of law Nos.2 and 3 would not survive for consideration, as the matter requires reconsideration by the First Appellate Court.

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In the result, I proceed to pass the following:

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ORDER

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(i) The regular second appeal is allowed .

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(ii) The impugned judgment dated 29.01.2014 passed in R.A. No.31 of 2011 by the learned II Additional Senior Civil Judge and JMFC, Kolar, itinerating at Mulbagal, is set aside .

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(iii) The Appeal in R.A. No.31 of 2011 is restored to its original file and is remitted for reconsideration by the First Appellate Court.

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(iv) The First Appellate Court is directed to club both appeals

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NC: 2024:KHC:37325 RSA No. 867 of 2014

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viz ., R.A. No.30 of 2011 and R.A. No.31 of 2011 on its file and pass appropriate judgment in accordance with law.

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(v) All contentions of both parties are kept open.

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(vi) As the matter is of the year 2002, both parties are directed to co-operate with the First Appellate Court in expeditious disposal of the cases.

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(vii) Both parties are directed to appear before the First Appellate Court on 02.12.2024 without awaiting any further notice.

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(viii) Registry is directed to transmit the records to the First Appellate Court forthwith.

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Sd/(ASHOK S.KINAGI) JUDGE

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RK CT: SN List No.: 1 Sl No.: 59

Sri Seenappa v. Venkataramappa @ Venakaravanappa

Case brief

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Sri Seenappa v. Venkataramappa @ Venakaravanappa

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