IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11th DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE PRADEEP SINGH YERUR M.F. A. NO.3280 OF 2015 (CPC) BETWEEN:
1. SMT. MARILINGAMMA W/O. LATE K. SIDDAIAH MAJOR 2. SRI P. SRINIVASA S/O. LATE K. SIDDAIAH MAJOR 3. SRI MANCHAPPA S/O. LATE K. SIDDAIAH MAJOR 4. SRI JAYAGOPAL (GOPI) S/O. LATE K. SIDDAIAH MAJOR ALL ARE RESIDING AT NO.U-2 4TH CROSS, JABBAR BLOCK VYALIKAVAL BENGALURU – 560 003 APPELLANTS NOS.1,3 AND 4 ARE REPRESENTED BY THE APPELLANT NO.2 – GPA HOLDER SRI P. SRINIVASA …APPELLANTS (BY SRI NARAYANAPPA, ADVOCATE) AND:
1. SRI GOPALAIAH SINCE DEAD BY HIS LRS 1(a) SMT. SAROJAMMA W/O LATE GOPALAIAH 1(b) SMT. SHARADA D/O. LATE GOPALAIAH 1(c) SMT. LAKSHMI D/O. LATE GOPALAIAH 1(d) SMT. SAKAMMA W/O. LATE GOPALAIAH 1(e) SRI SHESHADRI S/O LATE GOPALAIAH ALL ARE MAJOR R/AT KOMMERAHALLI VILLAGE KASABA HOBLI MANDYA TALUK – 571 402 2. SRI N SRINIVASAIAH S/O. LATE NARASIMHAIAH @ BORAIAH MAJOR, R/O. KOMMERAHALLI VILLAGE MANDYA TALUK-571 402 3. SMT. HOMBALAMMA W/O. LATE SINGRI 4. SRI MURTHY S/O. LATE SINGRI 5. SRI NARAYANI S/O LATE SINGRI 6. SRI SEENA S/O. LATE SINGRI 7. SRI NAGARAJU S/O LATE SINGRI 8. SMT. MARILINGAMMA W/O. LATE K.S. MANCHAIAH 9. SRI K.M. MUKUNDA S/O. LATE K.S. MANCHAIAH 10. SRI K.M. KUMAR S/O. LATE K.S. MANCHAIAH RESPONDENT NOS. 3 TO 10 ARE MAJOR R/O. KOMMERAHALLI VILLAGE KASABA HOBLI, MANDYA TALUK-571 402 11. SMT. SAVITHRAMMA W/O. LATE K.M. SRINIVASA 12. SMT. UMA D/O. LATE K.M. SRINIVASA 13. SRI LOKESH S/O. LATE K.M. SRINIVASA 14. SRI DEEPAK S/O. LATE K.M. SRINIVASA RESPONDENT NOS.11 TO 14 ARE MAJOR R/AT D.NO.79, JABBAR BLOCK 6TH CROSS, PALACE GUTTAHALLI VYALIKAVAL, BENGALURU – 560 003 15. SRI CHANDRASHEKARA S/O. LATE K. SIDDAIAH 16. SMT. VIJAYAMMA D/O. LATE K. SIDDAIAH W/O. GOPAL RESPONDENT NOS.15 AND 16 ARE MAJOR R/AT D.NO.U-2, 4TH CROSS JABBAR BLOCK, VYALIKAVAL BENGALURU – 560 003 ...RESPONDENTS (BY SRI N.S. VIJAYANATH BABU, ADVOCATE FOR R1(a) (b) (c) AND R2;
VIDE ORDER DATED 21.08.2018 NOTICE TO R3 TO R16 IS DISPENSED WITH) *** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER XLIII RULE 1 (R) OF CODE OF CIVIL PROCEDURE, 1908 PRAYING TO SET ASIDE THE ORDER DATED 23.01.2015 PASSED IN MISCELLANEOUS PETITION NO.3/2014 BY THE DISTRICT AND SESSIONS JUDGE, MANDYA BY ALLOWING THE APPEAL.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for appellants and the respondent No.1(a) to (c) and respondent No.2.
2. The appellants are the petitioners before the Principal District and Sessions Judge, Mandya in Misc. No.3 of 2014. The said petition was filed for setting aside the order dated 8th November 2013 passed in R.A. No.11 of 2010.
3. The brief facts of the case are thus:
The respondents, one Gopalaiah and Srinivasaiah, had filed a suit against the appellants herein for the relief of declaration, mandatory injunction and permanent injunction. It was the case of the respondents that the suit schedule property was a vacant site, originally which belongs to one Sidda S/o Mollejogi. He enjoyed the property till his death and that it is his self acquired property. It is the case of the respondents that a shed was constructed by them in the portion of the suit site. The said Sidda died leaving behind him his son by name, K.S.Narasimhaiah @ Boraiah, who become the absolute owner of the suit schedule property and enjoyed the possession of the same. Subsequently, said K.S.Narasimhaiah @ Boraiah also died leaving behind him his two sons, namely, Gopalaiah and Srinivasaiah, who are none other then the original plaintiffs in the suit in OS No.177/2002 and deceased father of respondents No.1 and 2 in this appeal. It is the case of the respondents that they have got the katha changed into their name in the Panchayath records and even prior to that the entries in the Panchayath records were in the name of their grand father. It is also stated that the respondents have also put up basement in order to construct a residential house and have obtained necessary license for the same. It is their case that the appellants herein have nothing to do with the suit schedule property. Therefore, the respondents filed a suit for declaration and mandatory injunction to direct the appellants to remove the shed in a portion of the property.
4. It is the case of the appellants that the correct name of the father of Sidda is Mancha @ Chikkahyda. The appellants have admitted to the fact that Narasimhaiah @ Boraiah died and that the respondents / plaintiffs are his sons. The only contention of the appellants is that they had purchased the property from one Singri by virtue of a registered sale deed dated 01.01.1941 and that ever since then they are in possession of the suit schedule property as owners. The appellants stated that the suit is not maintainable and the respondents / plaintiffs have no manner of right, title or interest over the suit schedule property.
5. It is borne out from the judgment and decree in the original suit OS No.172/2002 that after the respondents / plaintiffs lead evidence and marked documents, no evidence has been led by the appellants and defendants despite giving sufficient opportunity. The appellants also did not bother to address arguments and after hearing the respondents / plaintiffs’s side, the suit came to be decreed declaring that the respondents / plaintiffs as joint owners of schedule A Property and the LRs of the first defendant, who are appellants herein, are directed to remove the shed constructed in the schedule B property and the appellants / defendants were permanently restrained from the plaintiffs / respondents peaceful possession and enjoyment of the schedule A property.
6. Aggrieved by the judgment and decree in OS No.172/2002, the appellants herein have preferred an appeal in RA No.31/2005 and the same was renumbered later and assigned as RA No.11/2010. The said appeal was posted on several dates for hearing and finally it came to be dismissed on 08.11.2013 for the reason of non- prosecution by the appellants herein.
7. Aggrieved by the dismissal of the RA No.11/2010, the appellants herein preferred Misc. No.3/2014 for setting aside the order of dismissal of the appeal in RA No.11/2010 on the file of the Principal District & Sessions Judge, Mandya. It is necessary to note that as per the order sheet dated 21.06.2014 in Misc. No.3/2014, the Court noting reads thus:
“No representation. Steps not taken. Hence, petition is dismissed for default.”
8. Thereafter, on 26.08.2014, it appears that the appellants have filed an application for recalling of the said order and the same appears to have been allowed. Thereafter, the matter was again posted on several dates of hearing and on 23.01.2015, as no representation was made on behalf of the appellants, the petition came to be dismissed for default. This order of dismissal in the Misc. No.3/2014 was challenged for restoration of the case, to restore the appeal in RA No.11/2010 to contest the original suit in OS No.172/2002.
9. After hearing the learned counsel for appellants for some time, this Court wanted to know and ascertain whether as there is any subsisting rights available to the appellants for restoration of the petition, so that the appellants could contest the original suit. The learned counsel for appellants submits that he has a right on the suit schedule property.
10. Per contra, the learned counsel for respondents submit that they are in absolute possession and enjoyment of the suit schedule property and that they have demolished the shed in the schedule B property.
11. It is seen from the records that the suit is of the year 2002 and which came to be disposed of in the year 2005. The appeal was filed in the year 2010 which came to be dismissed in the year 2013. The Misc. Petition which is filed in the year 2014 dismissed twice and finally in the year 2015. The present appeal is filed in the year 2015 and today we are in the year 2019. This is a classic example as to how the appellants have not been diligent in prosecuting the case and have time and again abandoned the case and have failed to claim the right over the suit schedule property, if at all any subsisting rights.
12. After giving anxious consideration to the facts and circumstances of the case, and the submissions made by the learned counsel on both sides, I do not find any merit or grounds to allow the appeal. More so, in view of the fact that the appellants, right from the beginning have not been diligent in prosecuting their case. Under these circumstances, appeal is dismissed.
13. No order as to costs.
Sd/- JUDGE VK