Smt S L Shamala Vs Sri S L Shridhara Murthy

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1 - NC: 2025:KHC:24565 RSA No. 1561 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF JUNE, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1561 OF 2014 (DEC-)

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BETWEEN:

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SMT. S.L. SHAMALA, W/O. RAMESH, D/O. LINGAPPAIAH, AGED 53 YEARS, R/O. ESWARA TEMPLE STREET, SHRAVANABELAGOLA, CHANNARAYAPATNA TALUK, HASSAN DISTRICT - 573 135.

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…APPELLANT

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(BY SRI. K.N. MITISH, ADVOCATE FOR SRI. K.V NARASIMHAN, ADVOCATE)

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AND:

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Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA

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SRI. S.L. SHRIDHARA MURTHY, S/O LATE LINGAPPAIAH, AGED ABOUT 49 YEARS, R/O. ESWARA TEMPLE STREET, SHRAVANABELAGOLA CHANNARAYAPATNA TALUK, HASSAN DISTRICT - 573 135.

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…RESPONDENT

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(BY SRI. KARUMBAIAH T.A, ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 13.08.2014 PASSED IN RA.NO.25/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE,

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CHANNARAYAPATNA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 12.07.2012 PASSED IN OS.NO.512/2000 AND 187/1997 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC CHANNARAYAPATNA.

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THIS APPEAL, COMING ON FOR 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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This Regular Second Appeal is filed by the appellant

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challenging the judgment and decree dated 13.08.2014, passed in R.A.No.25/2013 on the file of the learned Senior Civil Judge, Chennapatna.

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For convenience, the parties are referred to based on their ranking before the trial Court. The appellant was the defendant, and the respondent was the plaintiff.

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Brief facts leading rise to the filing of this appeal are as follows:

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The plaintiff filed a suit against the defendant for declaration to declare that he is the owner of the suit schedule property bearing katha No.(157/A) 175/A, and

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sought a permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the plaintiff of the suit schedule property.

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3.1. It is the case of the plaintiff that the suit property and adjacent to the northern side of the suit schedule property totally measuring 24 X 96 feet, a house property attached with a backyard measuring 25 X 58 feet originally belonging to one Sri S.L.Srikantaiah, who is none other than the grandfather of the plaintiff and the defendant. Late Srikantaiah had three sons by the names Sri Lingappaiah, Sri Parameshwaraiah and Sri Gundurao, and the plaintiff is the son of Lingappaiah and the defendant is his elder sister of him. It is stated that Srikantaiah and Parameshwariah relinquished their right, title or interest over the suit property, in favour of Lingappaiah and Gundurao, and the plaintiff by virtue of the relinquishment, Lingappaiah and Gundurao became the absolute owners of the said house property. The plaintiff’s father had got a half share in the house property

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measuring 12 ½ feet x 96 feet under a partition affected

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more than 35 years ago between Lingappaiah and Gundurao and the paluparikath was executed on 26.04.1993. The defendant had purchased the adjacent portion of the said property under a registered sale deed dated 19.01.1995 from Gundurao and in possession to the extent of 12 ½ X 96 feet in the house property. The deed schedule property measures 17 x 96 feet instead of 12½ x 96 feet. Even though the said Gundurao had no right or authority to sell more than 12 ½ X 96 feet in favour of the defendant. The defendant has not acquired any right, title or interest by virtue of a registered sale deed dated 19.01.1995. It is contended that the plaintiff filed another suit in O.S.No.187/1997 against the defendant for permanent injunction, contending that he is the owner of the suit schedule property by virtue of the panchayath paluparikath dated 26.04.1993. It is contended that the defendant is making an attempt to demolish the common wall. Hence, a cause of action arose for the plaintiff to file

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a suit for a declaration and a permanent injunction. Accordingly, prays to decree the suits.

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3.2. The defendant filed a written statement admitting the relationship between the parties to the suit, and it is contended that the total extent of the house was divided among three sons of Sri S.L.Srikanthaiah, measuring 8 ft x 96 ft, 8½ ft x 96 ft and 8½ ft x 96 ft respectively, between Sri Lingappaiah, Sri Parameshwaraiah and Sri Gundurao. Subsequent to partition, Sri Parameshwaraiah executed a relinquishment deed in favour of younger brother, Sri Gundurao to the extent of 8½ ft x 96 ft represented by his minor guardian Smt. Rangalakshmamma. Accordingly, the said

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Sri Gundurao became the owner of the total extent, measuring 17 ft x 96 ft and he sold the said property in favour of the defendant vide sale deed dated 19.01.1995. Hence, on these grounds, he prays to dismiss the suits.

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3.3. The trial Court clubbed both the suits i.e., in O.S.No.512/2000 and O.S.No.187/1997.

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3.4. The Trial Court, based on the above said

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pleadings, framed the following issues and additional issues:

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Issues in O.S.No.512/2000:

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1) Does the plaintiff prove that he is the lawful owner with respect to suit schedule property?

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2) Does the plaintiff further prove that the sale deed dated 19.01.1995 executed by Shri Gundurao in favour of defendant does not bind the right, title interest and possession of plaintiff with respect to suit schedule property?

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3) Does the plaintiff prove that, he is in possession and enjoyment of the suit schedule property?

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4) Does the plaintiff prove that defendant attempting to interfere with his possession on the suit schedule property by denying the ownership of him?

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5) Does the defendant prove that one Sri Parameshwaraiah is 2^nd son of Shrikantaiah has executed relinquishment deed in favouor of 3^rd son Gundurao for this share measuring East West 96 feet and North South 8 ½ feet?

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6) Does the defendant prove that plaintiff has got only property measuring 8 feet x 96 feet in the suit schedule property?

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7) Whether the plaintiff is entitled for relief sought in the present suit?

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8) What order or decree?

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Issues in O.S.No.187/1997:

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1) Does the plaintiff prove that he is in possession and enjoyment of the suit schedule property?

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2) Does the plaintiff proves that there is a common wall in the northern side his suit schedule property and in between his property and defendant’s property?

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3) Does the plaintiff prove the agreement dated 26.11.1996 between the plaintiff and defendant with regard to enjoyment of common wall?

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4) Does the plaintiff proves the alleged interference or causing damage to common wall?

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5) Does the plaintiff entitled for the relief sought in the suit?

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6) What order or decree?

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Additional issue in O.S.No.512/2000:

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1) Whether the suit of the plaintiff hit by Sec 11 of C.P.C.?

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3.4. The trial Court recorded the evidence in

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common and the plaintiff examined himself as PW.1, examined two witnesses as PW.2 and PW.3 and marked 39 documents as Exs.P1 to P3. In rebuttal, the defendant examined herself as DW.1, examined 3 witnesses as DW.2 to DW.4 and marked 10 documents as Exs.D1 to D10. The trial Court, after recording the evidence, hearing both

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sides and after assessing the verbal and documentary evidence of the parties answered issues in O.S.No.512/2000 i.e., issue Nos.1 to 5 and 7 in the negative, issue No.6 in the affirmative, issue No.8 as per the final order and answered issues in O.S.No.187/1997 as issue Nos.1 to 5 in the negative and issue No.6 as per the final order. The trial Court, dismissed both suits with costs vide common judgment, and decree dated 12.07.2012.

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3.5. The plaintiff, aggrieved by the common judgment and decrees passed in O.S.No.512/2000 and O.S.No.187/1997, preferred an appeal in R.A.No.25/2013.

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The First Appellate Court, after hearing the parties, has framed the following points for consideration:

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1) Whether the judgment and decree of the trial Court need to be interfered with? If so to what extent?

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2) To what relief and decree the parties are entitled for?

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3.6. The First Appellate Court, after reassessing the

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verbal and documentary evidence, answered point No.1 in

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the affirmative and point No.2 as per the final order. The

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appeal was allowed, the judgment and decrees passed in O.S.No.512/2000 and O.S.No.187/1997 were set aside and the suits were decreed as observed in the body of the judgment. The defendant, aggrieved by the judgment and decree passed in R.A.No.25/2013, has filed this Regular Second Appeal.

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This Court, on 14.02.2017, admitted the appeal

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to consider the following substantial questions of law:

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1) Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court by setting aside the judgment and decree dated 12.07.2012 made in O.S.No.512/2012 and O.S.No.187/1997, when the respondent filed an appeal in R.A.No.25/2013 against the judgment and decree in O.S.No.512/2012 on the file of the Addl. Civil Judge, JMFC, Channarayapatna?

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2) Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court by holding that the respondent is the owner of the suit schedule property only on the basis of the alleged paluparikath dated 26.04.1993, Ex.P17?

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3) Whether the lower appellate Court was justified in reversing the judgment and decree of the trial Court under the facts and circumstances of the present case?

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Heard the arguments of the learned counsel for

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the defendant and also the learned counsel for the plaintiff.

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Learned counsel for the defendant submits that the first Appellate Court has not properly framed the points for consideration, reappreciated the entire evidence and not answered each issue framed by the trial Court. The impugned judgment is not in compliance with order 41 Rule 31 of CPC. The impugned judgment is arbitrary, capricious and perverse. Hence, prays to allow the appeal.

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Per contra, learned counsel for the plaintiff supported the impugned judgment and prays to dismiss the appeal.

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Perused the records and considered the submissions of learned counsel for the parties.

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9. REG. SUBSTANTIAL QUESTIONS OF LAW

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NO.1 TO 3 : Substantial questions of law No.1 to 3 are

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interlinked, hence, are discussed together to avoid the repetition of facts.

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The plaintiff filed a suit in O.S.No.187/1997 for the relief of a permanent injunction and subsequently filed a suit in O.S.No.512/2000 for the relief of a declaration and a permanent injunction. Both suits were clubbed and common evidence was led by the parties. The case of the plaintiff’s that S.L.Shrikantaiah and Parameshwaraiah had relinquished their right, title or interest over the suit property in favour of Lingappaiah i.e., the plaintiff’s father and Gundurao and they became the joint owners of the said property. The plaintiff’s father and Gundurao got a half share in the house property. The defendant purchased the adjacent portion of the suit property under a registered sale deed dated 19.01.1995 from the said Gundurao and is in possession to the extent of 12½ x 96

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ft. There is no dispute regarding the relationship between

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the parties to the suit. There is a dispute regarding the extent/measurement of the property owned by the parties to the suit. The trial Court, considering the admission of PW.1 regarding Gundurao was in possession of the property that the defendant is claiming and Ex.P17 i.e., the panchayath palu parikath dated 26.04.1993 shows that measurement was tampered with the Court declined to consider Ex.P17 and dismissed the suits of the plaintiff. The plaintiff examined three witnesses and marked 39 documents as Exs.P1 to P39 and the defendant examined three witnesses as DW.1 to DW.3 and marked 10 documents. The first Appellate Court has set aside the common judgment of the trial Court. It has not properly considered the evidence placed on record by the parties. The first Appellate Court did not consider that the plaintiff had challenged the judgment and decrees passed in both the suits in O.S.No.512/2000 and O.S.No.187/1997 in a single appeal. The first Appellate Court, without

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considering the said aspect, has reversed the common judgment and decree passed in O.S.No.512/2000 and O.S.No.187/1997. The first Appellate Court has also not examined whether Ex.P17 is admissible in evidence for want of registration. The first Appellate Court, being the final fact finding Court, is required to frame proper points for consideration, re-appreciate the entire evidence on record and answer each issue framed by the trial Court. From the perusal of the judgment of the first Appellate Court, there is no substantial compliance of order 41 Rule 31 of CPC. The first Appellate Court without application of mind, reverse the common judgment passed by the trial Court. The impugned judgment passed by the first Appellate Court is against the proposition laid down by the Hon'ble Apex Court in the case of H. SIDDIQUI (D) BY LR VS A. RAMALINGAM reported in (2011) 4 SCC 24 , wherein the Hon'ble Apex Court has issued guidelines as to how the first Appellate Court is required to proceed and decide an appeal. Thus, on this ground, the impugned judgment

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