Partly allowed¶¶60

Smt. Sarasa v. Sri. Anand Kumar

Karnataka HC10 Apr 2026RFA/2031/2024

Case brief

AI extract

What is this about?

Karnataka High Court, Bengaluru — RFA No. 2031 of 2024 (INJ), decided 10.04.2026 by R. Nataraj, J. — decree for perpetual injunction set aside and suit remanded where defendant was denied an effective opportunity to cross-examine PW-1 and lead evidence; defendant's non-participation condoned on terms; appeal under Section 96 r/w Order 41 Rule 1 CPC; competing possession claims based on gift deed dated 28.01.2013 versus agreement of sale with GPA and affidavit dated 26.11.2001; parties to appear before trial Court on 08.06.2026.

What did the court decide?

Appeal allowed in part: impugned judgment and decree dated 30.03.2023 set aside; suit remitted to the trial Court for reconsideration with liberty to the defendant to cross-examine PW-1 and adduce evidence; parties directed to appear before the trial Court on 08.06.2026. ¶¶60

Smt. Sarasa Vs Sri. Anand Kumar — Karnataka HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether an opportunity deserves to be granted to the defendant to contest the suit on merits?

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Court's answer

The point framed for consideration is answered in favour of the defendant and against the plaintiff.

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Ratio / Principle

The lapse of the defendant in participating in the proceedings of the suit deserves to be condoned and an opportunity deserves to be granted, particularly as she is a poor woman; since refusal to grant an opportunity would ultimately deprive her of a roof over her head, the impugned judgment and decree is set aside and an opportunity granted to her to participate in the suit, putting her on terms.

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Key takeaways

The title of the grandmother of the plaintiff to the suit property is not in dispute; the only question is whether she parted with possession in favour of the defendant's husband or delivered possession to the plaintiff, and the consequence of the impugned judgment and decree would be that the defendant may be deprived of her proprietary right in the suit property.ratio¶¶55
The impugned judgment and decree dated 30.03.2023 is set aside and the suit is remitted to the trial Court for reconsideration; the defendant shall cross-examine the plaintiff's witness and adduce evidence, and the parties are directed to appear before the trial Court on 08.06.2026.ratio¶¶62

Detailed headnote1 paragraphs

Regular First Appeal (S.96 r/w O.41 R.1 CPC) by the defendant against the judgment and decree dated 30.03.2023 of the XXV Additional City Civil and Sessions Judge, Bengaluru, in O.S.No.315/2018, decreeing a suit for perpetual injunction. The defendant, who claimed possession under an agreement of sale coupled with a general power of attorney and affidavit dated 26.11.2001 executed by the plaintiff's grandmother, did not cross-examine PW-1 or lead evidence, and the suit was decreed. Holding that the title of the plaintiff's grandmother was not in dispute, that the only question was one of possession, and that refusal of an opportunity would deprive the defendant — a poor woman — of a roof over her head, the High Court (R. Nataraj, J.) answered the point in favour of the defendant, set aside the judgment and decree dated 30.03.2023, and remitted the suit to the trial Court for reconsideration, permitting the defendant to cross-examine PW-1 and adduce evidence, putting her on terms; parties directed to appear before the trial Court on 08.06.2026.

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NC: 2026:KHC:20031 RFA No. 2031 of 2024

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF APRIL, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE R. NATARAJ REGULAR FIRST APPEAL NO. 2031 OF 2024 (INJ)

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BETWEEN:

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SMT. SARASA W/O. LATE M. MAYAVAN, NOW AGED 53 YEARS, R/AT NO. 248, 8^TH BLOCK, II STAGE, 1^ST MAIN ROAD, KORMANGALA, RAJENDRANAGAR, BANGALORE-560 047.

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…APPELLANT (BY SRI. SRIRAM BABU A., ADVOCATE)

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AND:

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Digitally signed by HEMALATHA J Location: HIGH COURT OF KARNATAKA

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SRI. ANAND KUMAR NOW AGED ABOUT 39 YEARS, S/O. SRI. R. MANOHAR, R/AT NO. 557, 9^TH CROSS, RAJENDRANAGAR, KORMANGALA, BANGALORE - 560 047. …RESPONDENT (BY SRI. SHIVASHANKAR K., ADVOCATE)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.03.2023 PASSED IN OS NO.315/2018 ON THE FILE OF XXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT FOR PERMANENT INJUNCTION.

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

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CORAM: HON'BLE MR. JUSTICE R. NATARAJ

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NC: 2026:KHC:20031 RFA No. 2031 of 2024

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HC-KAR

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ORAL JUDGMENT

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The defendant in O.S.No.315/2018 on the file of the XXV Additional City Civil and Sessions Judge at Bengaluru has filed this appeal challenging the judgment and decree dated 30.03.2023 passed therein.

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The parties shall henceforth be referred to as they were arrayed before the trial Court.

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(i) The suit in O.S.No.315/2018 was filed for perpetual injunction to restrain the defendant from interfering with the possession and enjoyment of the plaintiff in the suit schedule property. The suit property is bearing No.587, 8^th Block, II Stage, Koramangala, measuring east to west 20 feet and north to south 15 feet. The plaintiff claimed that he is the absolute owner of the suit property having derived it in terms of a gift deed dated 28.01.2013 executed by his grandmother.

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(ii) Thereafter, there was a partition amongst his family members on 10.11.2017, where at the suit property fell to his share. He claimed that he was in possession of the suit property ever since then. He alleged that the defendant though

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HC-KAR

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having no manner of right title or interest, tried to interfere with his possession of the suit property and therefore, he was advised to seek the intervention of the Court. Accordingly, he filed the suit for perpetual injunction.

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(iii) The defendant entered appearance and filed a written statement contending that her husband had purchased the suit property in terms of an agreement of sale executed by the grandmother of the plaintiff and that she had executed a general power of attorney dated 26.11.2001 and had also affirmed in terms of an affidavit dated 26.11.2001 that she had received the entire sale consideration. She alleged that her husband took possession of the said property on 26.11.2001 and he died on 20.08.2013. She claimed that she and her children were in possession of the suit property and she had put up construction thereon and had let out one portion to a tenant named, Smt.Malliga. She claimed that her husband had also got the installation of the suit property serviced with electricity and that there were documents to establish that she was in possession of the suit property and therefore sought for dismissal of the suit.

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HC-KAR

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Based on these contentions, the trial Court framed the following issues:

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(1) Whether the plaintiff proves that he is in peaceful possession and enjoyment of the suit schedule property?

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(2) Whether the plaintiff proves the alleged interference by the defendant?

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(3) Whether the plaintiff is entitled for the relief of permanent injunction?

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(4) What order or decree?”

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In support of the averments made in the plaint, the plaintiff was examined as PW-1 and he marked documents as Exs.P.1 to P.25. However, the defendant did not cross-examine PW-1 and she did not enter the witness box. The trial Court after considering the oral and documentary evidence, decreed the suit in terms of the impugned judgment and decree. Being aggrieved by the aforesaid judgment and decree, the defendant has filed this appeal.

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The learned counsel for the defendant submits that

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the defendant is a poor woman and that due to communication gap between she and her advocate, she could not appear

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HC-KAR

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before the Court and give proper instructions to her advocate to cross-examine PW-1 and also to lead evidence. Besides this, he contends that the suit was set down for cross-examination of PW-1 on 09.11.2022, when COVID-19 was in the last phases. He therefore contends that the defendant could not take steps to participate in the suit. He contends that since the defendant is in lawful possession of the suit property, the judgment and decree passed by the trial Court is acting injurious to the interests of the defendant and therefore prays that an opportunity be granted to the defendant to contest the suit by cross-examining PW-1 and also by leading evidence.

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Per contra, the learned counsel for the plaintiff

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submitted that the defendant is not in possession but it is the plaintiff, who is in possession of the suit property. He contends that the defendant did not show any diligence in defending the suit, as she did not cross-examine PW-1 and did not lead any evidence. He therefore contends that the trial Court was justified in decreeing the suit for perpetual injunction. He submits that if the defendant has any better right, she may file

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HC-KAR

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appropriate suit for declaration of her right over the suit property.

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I have considered the submissions made by the learned counsel for the plaintiff and the learned counsel for the defendant.

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The only point that arises for consideration this

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appeal is:

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i) “Whether an opportunity deserves to be granted to the defendant to contest the suit on merits?”.

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A perusal of the judgment passed by the trial Court would show that the defendant claimed that her husband had purchased the suit property in terms of an agreement of sale coupled with a power of attorney executed by the grandmother of the plaintiff. She also claimed that her husband had demolished the existing structure on the suit property and constructed a building thereon and had obtained electricity connection. She claimed that her husband had rented out a portion of the suit property to a tenant and that she was in possession of the remaining portion. Contrarily, the plaintiff

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NC: 2026:KHC:20031 RFA No. 2031 of 2024

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HC-KAR

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claimed that his grandmother had gifted the suit property to him and at a partition between him and his family members, the suit property fell to his share. Therefore, the title of the grandmother of the plaintiff to the suit property is not in dispute. The only question is whether the grandmother of the plaintiff had parted with possession of the suit property in favour of the husband of the defendant or had delivered possession of the suit property to the plaintiff. Thus, the consequence of the impugned judgment and decree would be that the defendant may be deprived of her proprietary right in the suit property. Therefore, the lapse on the part of the defendant in participating the proceedings of the suit deserves to be condoned and an opportunity deserves to be granted more particularly in the light of the contention of the defendant that she is a poor woman, who is fending off her livelihood. Since refusal to grant an opportunity would ultimately deprive the defendant of a roof over her head, it is appropriate that the impugned judgment and decree is set aside and an opportunity is granted to the defendant to participate in the suit. This cannot be done without putting the defendant on terms.

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HC-KAR

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In view of the aforesaid, the point framed for consideration is answered in favour of the defendant and against the plaintiff. Consequently, the following order is passed:

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ORDER

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i. The appeal is allowed in part ;

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ii. The impugned judgment and decree dated 30.03.2023, passed by the XXV Additional City Civil and Sessions Judge at Bengaluru, is set aside;

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iii. The suit is remitted back to the trial Court for reconsideration. The defendant shall crossexamine the plaintiff's witness on the next date of appearance fixed by this Court or any subsequent date as may be fixed by the trial Court. She shall also adduce evidence, if any, on the date that may be fixed by the trial Court and also be available for crossexamination by the plaintiff. The trial Court is

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