IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2019 PRESENT THE HON’BLE MR.L.NARAYANA SWAMY ACTING CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE P.S.DINESH KUMAR REGULAR FIRST APPEAL No.239/2019 BETWEEN:
1. SRI. G. NAGARAJ S/O LATE GOVINDASWAMY AGED ABOUT 58 YEARS R/A NO.24, II ‘B’ CROSS VIDYAPEETA LAYOUT THYAGARAJANAGAR BANGALORE-560 028 2. SRI. V. RAJANNA S/O LATE C. VENKATASWAMAPPA AGEDA BOUT 77 YEARS R/O ‘NARASIMHA KRUPA’ VENKATESHWARA TEMPLE ROAD JAYANAGARA, TUMKUR-572 104 REPRESENTED BY GPA HOLDER APPELLANT NO.1 ... APPELLANTS (BY SHRI. M.R. RAJAGOPAL, ADVOCATE) AND:
1. DR. B.P. MRUTHUNJAYANNA S/O LATE B. PATHRAPPA AGED ABOUT 87 YEARS R/AT NO.315, 14TH MAIN R.M.V EXTENSION BENGALURU-560 080 2. SRI. I.M. AGADOORAPPA S/O LATE MORASURA MUNIYAPPA AGED ABOUT 73 YEARS R/AT NO.329, 10TH MAIN II STAGE, INDIRANAGAR BENGALURU-560 080 3. SMT. V.LAKSHMI W/O I.M. AGADOORAPPA AGED ABOUT 69 YEARS R/AT NO.329, 10TH MAIN II STAGE, INDIRANAGAR BENGALURU-560 080 ... RESPONDENTS (BY SHRI. D.P. MAHESH, ADVOCATE FOR R2 & R3) THIS RFA IS FILED UNDER SECTION 96 AND ORDER 41 RULE 1 OF CPC, AGAINST THE ORDER DATED 19.01.2019 PASSED ON I.A.NO.V IN O.S. NO.4252/2016 ON THE FILE OF THE VII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, ALLOWING THE I.A.NO.V UNDER ORDER 7 RULE 11(a) AND (d) OF CPC.
THIS RFA, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 28.02.2019, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, P.S.DINESH KUMAR J, PRONOUNCED THE FOLLOWING:-
J U D G M E N T This appeal is presented by the plaintiffs against judgment and decree dated 19.01.2019 in O.S.No.4252/2016 on the file of VII Additional City Civil and Sessions Judge, Bengaluru, allowing I.A.No.V filed under Order VII Rule 11 of CPC and rejecting the plaint.
2. For the sake of convenience, parties are referred to as per their status in the original suit.
3. Heard Shri. M.R. Rajagopal, learned advocate for the plaintiffs.
4. Plaintiffs filed the instant suit praying for a declaration that first plaintiff is the absolute owner in possession of suit property and a permanent injunction restraining defendants from interfering with first plaintiff’s possession. In the alternative, plaintiff’s prayed for a direction to the second defendant to deliver vacant possession of the suit property to the plaintiffs.
5. Plaintiffs have averred in the plaint that first plaintiff purchased the suit property (site bearing No.46 in Survey No.10/4 of Kathriguppe Village, Bengaluru South Taluk) from first defendant under a sale deed dated February 20, 2016 executed by Power of Attorney Holder namely the second plaintiff.
6. Plaintiffs have traced the title of suit property as follows:
One S. Narasinga Rao was owner of 1 acre 28 guntas of land bearing Survey No.10/4 of Kathriguppe village. He formed residential sites and sold them to various persons. Suit property is one such site purchased by first defendant on May 6, 1964. Second plaintiff agreed to purchase suit property from first defendant on November 9, 1981. First defendant executed a Power of Attorney in favour of second plaintiff and the same was registered. Second plaintiff was put in possession of the property.
7. First defendant filed a suit in O.S.No.1963/1985 against his vendors Narasinga Rao, Honnappa and one Muniswamappa. Shri. Narasinga Rao conceded that the suit property belong to the first defendant.
8. Shri. Honnappa, the second defendant therein who was in unauthorized possession voluntarily surrendered possession in favour of first defendant. However, the suit was ultimately dismissed for non- prosecution.
9. Second defendant started interfering with second plaintiff’s possession compelling him to file a suit for injunction (O.S.No.7023/2006). The said suit was dismissed as withdrawn.
10. Second plaintiff filed another suit in O.S.No.17492/2006 against second and third defendants with very same pleadings as contained in O.S.No.7023/2006 and withdrew the same on November 5, 2008.
11. Second and third defendants started interfering with the second plaintiff’s possession based on a rectification deed. Accordingly, second plaintiff filed O.S.No.8111/2007 questioning the validity of the rectification deed and the said suit is pending.
12. Certain differences arose between second plaintiff and first defendant pursuant to first defendant revoking the Power of Attorney. Second plaintiff filed O.S.No.6977/2007 for a declaration that the GPA dated November 9, 1981 executed by first defendant is coupled with interest and could not be revoked. The said suit was dismissed. On appeal this Court in R.F.A No.1253/2010, remanded the matter for fresh consideration and upon reconsideration, the said suit has been decreed on October 19, 2011. This proceeding has attained finality.
13. Second defendant started putting up illegal constructions on the suit property.
On February 22, 2016, second plaintiff executed a sale deed in favour of first plaintiff in respect of the suit property and put first plaintiff in possession of the suit property.
In second week of May, 2016, second defendant started interfering with peaceful possession of second plaintiff.
With the above pleadings, plaintiffs filed the instant suit with the prayers noted hereinabove.
14. Defendant No.2 filed I.A.No.5 under Order VII Rule 11(a) and (d) of CPC with a prayer to reject the plaint for want of cause of action. Learned Trial Judge has allowed the said application. Hence, this appeal.
15. We have carefully considered rival contentions and perused the records.
16. Learned Trial Judge has framed following solitary point for his consideration:
1. Whether there exists any cause of action on 20.02.2016 for the plaintiffs to file this suit?
Answering the point in the negative, learned trial Judge has allowed the application and rejected the plaint.
17. In substance, it is averred in the plaint that second plaintiff executed a sale deed on February 20, 2016 in favour of first plaintiff based on a power of attorney executed by first defendant in favour of second plaintiff.
18. As per plaint averments, first plaintiff is the owner and first defendant is his vendor. Suit property is described in the plaint as a site measuring 60ft. x 40ft. with a dilapidated house.
19. The following three aspects are relevant for consideration:
Second plaintiff filed a suit O.S.No.7023/2006 against second defendant for injunction and withdrew the same without any leave. The said decree has attained finality;
It is averred in the present suit that second defendant started illegal construction in the suit property, whereas the schedule shows that there exists a dilapidated house measuring two squares. There is no other averment with regard to the nature and quantum of construction put up by second defendant; and Plaintiffs have claimed a decree for possession as alternative relief.
20. A careful perusal of the plaint shows that second plaintiff filed O.S.No.7023/2006 against second defendant praying for injunction. It is averred in paragraph No.11 of the plaint that in view of the defence put forth by the defendants therein, second plaintiff realized that prosecution of the suit for injunction was a futile exercise and accordingly, withdrew the same. It is also specifically averred that though liberty was sought to file a fresh suit, it was declined. This leads to an irresistible inference that second plaintiff was not in possession of the suit property. Surprisingly, after withdrawing O.S.No.7023/2006, second plaintiff filed another suit for injunction in O.S.No.17492/2006 against defendants No.2 and 3 reiterating the averments contained in O.S.No.7023/2006. He withdrew the said suit also on November 5, 2008.
21. In paragraph No.16 it is averred that second defendant has filed O.S. No.25340/2007 and obtained an order of temporary injunction. On the strength of the said order, second defendant has put up incomplete construction and he was directed to stop further construction by the Corporation authorities.
22. In paragraph 17 of the plaint, the cause of action for the suit is mentioned as February 20, 2016, when ‘second plaintiff’ acquired the suit property under sale deed dated February 20, 2016, whereas in paragraph No.3 of the plaint, it is averred that ’first plaintiff’ acquired the property under sale deed dated February 20, 2016 executed by second plaintiff.
23. The cause of action is further described as second week of May, 2016 when second defendant attempted to interfere with first plaintiff’s possession over the suit property.
24. With the above inconsistent averments, plaintiffs have sought decree for declaration that first plaintiff is the owner in possession of the suit property and also permanent injunction against the defendants. The plaintiffs have also made an alternative prayer to direct second defendant to deliver vacant possession of the property to first plaintiff.
25. Admittedly, second plaintiff is the agreement holder having agreed to purchase the suit property. Plaint averments in paragraphs No. 11, 12 and 16 make it clear that second plaintiff gave up his fight against second defendant. On the other hand second defendant has put up construction in the suit property. In the instant suit, a decree for declaration of title is sought on behalf of the first plaintiff on the strength of the sale deed executed by second plaintiff in favour of first plaintiff. Having conceded that in view of the defence put up by the defendants in O.S.No.7023/2006, the continuation of the suit was a futile exercise and the admission that second defendant has put up incomplete construction on the strength of temporary injunction granted in O.S. No.25340/2007, it is clear that the plaint when read in its entirety does not disclose any cause of action. Therefore, in our considered view, the impugned order passed by the learned City Civil Judge rejecting the plaint does not call for any interference.
Resultantly this appeal fails and is accordingly dismissed.
No costs.
Sd/-
ACTING CHIEF JUSTICE Sd/- JUDGE SPS