IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.2028 OF 2015 (INJ) BETWEEN:
SRI C.SUBBEGOWDA S/O CHIKKAHANUMANTHARAYAPPA AGED ABOUT 42 YEARS R/AT VARADANAHALLI KASABA HOBLI, VEERAPURA POST DODDABALLAPURA TALUK – 561 203 … APPELLANT (BY SRI ANJANEYA A.B., ADV.) AND:
1. SRI NARAYANASWAMY S/O LATE CHIKKANAGAPPA AGED ABOUT 56 YEARS 2. SRI KRISHNAMURTHY S/O LATE CHIKKANAGAPPA AGED ABOUT 41 YEARS 3. SRI NARASIMHAIAH S/O KULLAPPA AGED ABOUT 53 YEARS ALL ARE R/AT VARADANAHALLI KASABA HOBLI, VEERAPURA POST DODDABALLAPURA TALUK BANGALORE NORTH TALUK – 561 203 ... RESPONDENTS (BY SMT.S.K.NAGARATHNA, ADV., FOR C/R1 AND R2) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED: 28.07.2015 PASSED IN RA.NO.15/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, DODDABALLAPUR, ALLOWING THE APPEAL AND DISMISSING THE JUDGMENT AND DECREE DATED:07.07.2012 PASSED IN 247/2006 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND J.M.F.C, DODDABALLAPUR AND ETC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Heard.
2. The appellant filed O.S.No.247/2006 against the respondents for permanent injunction contending that his father purchased the suit schedule property under a registered sale deed dated 04.05.1993 and in turn his father has gifted the property to him under a registered gift deed dated 13.04.2004 and respondent No.1 who is the adjacent land owner is interfering in the peaceful possession and enjoyment. The subject matter of the said land was bearing Sy.No.45 measuring 0.02 guntas of Vardanahalli village.
3. The defendants contested the suit contending that gift deed relied upon by the plaintiff is in excess of the property purchased by the plaintiff’s father under sale deed dated 04.05.1993. It was their contention that in the gift deed to grab the property of the defendants lying on the western side, their property is also included, though plaintiff’s father had no title to the same, the trial Court decreed the suit. The first appellate Court dismissed the suit holding that the boundaries in the sale deed and gift deed relied upon by the plaintiff/appellant vary from each other.
4. Now the appellant is seeking leave to withdraw the appeal with liberty to file fresh suit to rectify the title deed dated 04.05.1993 stood in the name of his father. Order XXIII Rule 1(3) of CPC contemplates granting of leave to file fresh suit in respect of the subject matter of the suit that means the same cause of action.
5. The present suit was filed against respondents for injunction. Now leave is being sought to proceed against vendors of the father of the appellant for rectification of the sale deed Ex.P1. Therefore, the prayer is beyond the scope of Order XXIII Rule 1(3) of CPC. Therefore, permission is granted to withdraw the appeal. If the appellant has any other course open against his vendors, it is up to him to pursue the same.
With these observations subject to all just exceptions, the appeal is disposed of as withdrawn and the application also stands disposed of.
Sd/- JUDGE KG