Smt. Jayalakshmamma Vs Smt Rathnamma

(BY SRI. M.U. NAREN SHAKTI SWARUP, ADVOCATE FOR SRI. M.N. UMASHANKAR, ADVOCATE FOR R1 TO R3; V/O.DATED 05.07.2017, SERVICE OF NOTICE IN RESPECT OF R4 IS HELD SUFFICIENT)

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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DATED 9.9.2014 PASSED IN R.A.NO.100/2013 ON THE FILE OF SENIOR CIVIL JUDGE, CHANNARAYAPATNA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 3.10.2013 PASSED IN O.S.NO.178/2005 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, CHANNAPATNA.

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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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This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 09.09.2014 passed in Regular Appeal No.100 of 2013 on the file of the learned Senior Civil Judge, Channarayappatna.

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HC-KAR

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For convenience, the parties are referred to, based on

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their rankings, before the Trial Court, i.e., the appellant was the plaintiff, and the respondents were the defendants.

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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 defendants for a permanent injunction, restraining the defendants from interfering with her peaceful possession and enjoyment over suit schedule properties.

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It is the case of the plaintiff that one D.T.Karna was the owner of the suit schedule properties, and he agreed to sell the suit schedule properties in favour of the plaintiff on 11.08.2000, and executed a sale agreement. Before executing a registered sale deed, said D.T.Karna expired, as such, the plaintiff filed a suit in O.S. No.43 of 2004 for the relief of specific performance of the contract, against the legal representatives of the deceased Karna.

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HC-KAR

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The said suit was decreed in favour of the plaintiff, and subsequently, a registered sale deed was executed in favour of the plaintiff on 24.10.2004. It is contended that the possession was delivered in favour of the plaintiff, and since then, the plaintiff has been in possession and enjoyment of the schedule properties.

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It is contended that the defendants started interfering with the peaceful possession, and enjoyment of the plaintiff over the suit schedule properties. Hence, the cause of action arose for the plaintiff to file a suit for permanent injunction. Accordingly, prays to decree the suit.

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Defendant No.1 filed a written statement, and the other defendants did not file any written statement. Defendant No.1 denied that D.T.Karna executed a sale agreement dated 11.08.2000, and also denied the filing of a suit in O.S. No.43 of 2004. It is contended that the suit properties are the joint family properties

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and the plaintiff is their nearest relative and hence, the suit in O.S. No.43 of 2004 came to be decreed by compromise. It is contented that defendant No.1 is the legal heir of D.T.Karna, and after the demise of D.T.Karna, the defendants are in possession and enjoyment of the suit schedule properties.

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It is also contended that the Judgment and Decree passed in O.S. No.43 of 2004 is not binding on the defendants. There is no cause of action to file the suit against the defendants and hence, prays to dismiss the suit.

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The Trial Court, based on the pleadings of the parties, framed the following issues:

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“(i) Whether the plaintiff proves that she is in lawful possession and enjoyment of the suit schedule properties as contended?

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(ii) Whether the plaintiff proves the alleged interference by the defendant in her lawful possession and enjoyment over

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the suit schedule properties as

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contended?

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(iii) Whether the plaintiff is entitled for the relief sought?

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(iv) What Order or Decree?”

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The plaintiff, to substantiate her case, examined through the power of attorney holder as PW-1, examined three more witnesses as PWs-2 to 4, and marked 11 documents as Exs.P-1 to 11.

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In rebuttal, defendants examined defendant No.4 as DW-1, two witnesses as DWs-2 and 3, and marked 27 documents as Exs-D1 to D27.

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The Trial Court, after recording the evidence and hearing both sides, on assessing the verbal and documentary evidence, answered issue Nos.1 to 3 in the affirmative, and issue No.4 as per the final order. The suit of the plaintiff was decreed, vide judgment and decree dated 03.10.2013. The defendants were restrained from interfering with the plaintiff's peaceful

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possession and enjoyment of the suit schedule properties.

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Being aggrieved by the said judgment and decree passed in O.S. No.178 of 2005, the defendants, preferred an appeal in Regular Appeal No.100 of 2013 on the file of the learned Senior Civil Judge, Channarayapatna.

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

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(i) Whether the Judgment and Decree of the Trial Court need to be interfered with? If so to what extent?

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

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The First Appellate Court, on revising the verbal and documentary evidence, answered point No.1 in affirmative, and point No.2 as per the final order.

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HC-KAR

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Consequently, the First Appellate Court allowed the appeal with costs throughout, vide judgment dated 09.09.2014 and set aside the judgment and decree passed by the Trial Court in O.S. No.178 of 2005. Consequently, dismissed the suit of the plaintiff.

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The plaintiff, aggrieved by the judgment and decree passed in Regular Appeal No.100 of 2013, preferred this regular second appeal.

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Heard the arguments of the learned counsel for the plaintiff, and the learned counsel for the defendants.

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Learned counsel for the plaintiff submitted that D.T.Karna executed a sale agreement in favour of the plaintiff. However, during the interregnum, D.T.Karna expired and his legal representatives failed to perform this part of the contract. Hence, the plaintiff filed a suit in O.S. No.43 of 2004 for specific performance of the contract against the legal representatives of D.T.Karna. The said suit was decreed and

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subsequently, a registered sale deed was executed in favour of the plaintiff.

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He submitted that there is a recital in the registered sale deed regarding the delivery of possession of the suit schedule properties. Hence, it is submitted that the First Appellate Court did not consider the said recital in the registered sale deed regarding the delivery of possession, and committed an error in dismissing the suit. Hence, on these grounds, it is submitted that the judgment and decree passed by the First Appellate Court is arbitrary, perverse and erroneous. Hence, he prays to allow the instant Regular Second Appeal.

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Per contra, learned counsel for the defendants submits that the defendants are not parties to O.S. No 43 of 2004, and he further submitted that the suit was filed on 23.06.2004, and the Trial Court issued summons to the defendants therein. But, the plaintiff got advanced the case and filed a compromise decree

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in the said suit. He submitted that the decree passed

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in O.S. No.43 of 2004 is a collusive decree, and he also submitted that the plaintiff, being fully aware that the defendants are also the legal representatives of D.T.Karna, did not array them as party in O.S. No.43 of 2004. He also submitted that the defendants are

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also not parties to the registered sale deed. He submitted that defendant No.1 had denied the ownership and possession of the plaintiff over the suit schedule properties. The suit for mere injunction is not maintainable, without seeking the relief of declaration. To buttress his argument, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Anathula Sudhakar vs P. Buchi

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Reddy (Dead) By Lrs & Ors, reported in (2008) 4 SCC 594 . He also submits that the plaintiff is not in possession of the suitable properties. Hence, the First Appellate Court was justified in dismissing the suit.

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Hence, on these grounds, he prays to dismiss the

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appeal.

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This Court admitted the regular second appeal, to consider the following substantial questions of law:

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(I) Whether the appellant proves that the First Appellate Court has committed an error without considering the recital in the registered sale deed regarding delivery of possession in favour of the appellant.

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(II) Whether the First Appellate Court was justified in reversing the judgment and decree passed by the trial Court?

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Reg: Substantial Question of law Nos.I & II :

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Since, all the substantial questions of law are interlinked with each other, they are taken together for common discussion to avoid repetition of facts.

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The plaintiff examined herself through her power of attorney holder, who deposed that D.T. Karna was the absolute owner of the suit schedule properties. He agreed to sell the suit schedule properties in favour of

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the plaintiff and accordingly, executed a sale agreement dated 11.08.2000. Subsequently, D.T.Karna died. Hence, the plaintiff filed a suit against the legal representatives of D.T.Karna for the relief of specific performance of a contract in O.S. No.43 of 2004. The said suit came to be decreed in favour of the plaintiff. A registered sale deed was executed in favour of the plaintiff, and possession was delivered to the plaintiff. The defendants are interfering with the peaceful possession and enjoyment of the suit schedule properties by the plaintiff. To prove the possession, the plaintiff produced the documents at Ex.P1 to P4. Conversely, the defendants have denied the execution of the sale

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agreement by D.T.Karna, and that the defendants were not aware about the filing of the suit in O.S. No.43 of 2004. The plaintiff, colluding with the legal representatives of D.T.Karna got obtained a decree and also a registered sale deed was executed. Hence,

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the decree passed in O.S No.43 of 2004, and the registered sale deed are not binding on the defendants. The defendants have denied the title and possession of the suit schedule properties by the plaintiff.

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The plaintiff produced the registered sale deed. However, during the pendency of the suit, a survey was carried out, and the surveyor submitted a report as per Exhibits D-8 and D-9, wherein he stated in his report that the plaintiff is not in possession of the entire area of the suit schedule properties. However, he is in possession of a portion of the suit schedule properties. Upon considering Exhibits D-8 and D-9, it is clear that the plaintiff is not in possession of the entire suit schedule properties.

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The plaintiff has sought the relief of permanent injunction regarding entire suit properties. Considering, Exhibit D-8 and D-9, which are the surveyor’s reports, wherein it has been stated that

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the plaintiff is not in possession of the entire portion of the suit schedule properties. The First Appellate Court did not properly consider this aspect, and has committed an error in dismissing the suit of the plaintiff.

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However, there is a recital in the registered sale deed regarding the delivery of possession of the suit schedule properties. The First Appellate Court also did not consider the recital in the registered sale deed regarding the delivery of possession of the suit schedule properties. The First Appellate Court committed an error in not re-appreciating the entire evidence on record properly. Thus, the First Appellate Court has committed an error in passing the impugned judgment, and decree.

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In view of the above discussion, I answer the substantial question of law No.1 in affirmative and substantial question of law No.2 in the negative .

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Accordingly, I proceed to pass the following order:

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ORDER

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(I) The Regular Second Appeal is allowed in part.

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(II) The judgment and decree passed by the First Appellate Court in Regular Appeal No.100 of 2013 dated 09.09.2014 on the file of the Senior Civil Judge, Channarayapatna is set aside .

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(III) The suit of the plaintiff in O.S. No.178 of 2005 is partly decreed , restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule properties, as mentioned in Exhibits D- 8 and D-9.

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(IV) No order as to the costs.

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(V) In view of the disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are accordingly disposed off.

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Sd/(ASHOK S.KINAGI) JUDGE

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RK ct: AR List No.: 2 Sl No.: 3

Smt. Jayalakshmamma v. Smt Rathnamma

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Smt. Jayalakshmamma v. Smt Rathnamma

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