IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2017 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA R.S.A.No 1065/2010 (DEC/P.INJ) BETWEEN:
1. SRI KASU SANJEEVAPPA S/O KASA HANUMANTHAPPA ORIGINAL SINCE DECEASED BY HIS LEGAL REPRESENTATIVES (a) SRI THIMMAREDDY S/O LATE SRI KASU SANJEEVAPPA AGED ABOUT 58 YEARS, (b) SRI K.S.RAMACHANDRA REDDY S/O LATE SRI KASU SANJEEVAPPA AGED ABOUT 52 YEARS, (c) SRI K.S.GOVINDA REDDY, S/O LATE SRI KASU SANJEEVAPPA AGED ABOUT 45 YEARS, (d) SRI K.S.KANTHA REDDY S/O LATE SRI KASU SANJEEVAPPA AGED ABOUT 38 YEARS, (e) SRI K.S.VASANTHA REDDY S/O LATE SRI KASU SANJEEVAPPA AGED ABOUT 35 YEARS, (f) SMT.MALLAMMA W/O CHANNA REDDY D/O LATE SRI KASU SANJEEVAPPA AGED ABOUT 60 YEARS, (g) SMT.GOVINDAMMA W/O GOVINDA REDDY D/O LATE SRI KASU SANJEEVAPPA AGED ABOUT 56 YEARS, (h) SMT.SHAKUNTALAMMA W/O JAYARAMA REDDY D/O LATE SRI KASU SANJEEVAPPA AGED ABOUT 40 YEARS, (i) SMT.GUCHAMMA W/O LATE SRI KASU SANJEEVAPPA, MAJOR (DIED ON 18.12.2008 AND ALSO OTHERS LEGAL REPRESENTATIVES ON RECORD) ALL ARE RESIDING AT BALENAHALLI VILLAGE CHALLAKERE TALUK CHITRADURGA DISTRICT PIN CODE – 577 522. …APPELLANTS (BY SRI B.K.CHANDRASHEKAR, ADVOCATE FOR LEGAL REPRESENTATIVES OF APPELLANT No.1 APPEAL AGAINST APPELLANT No.1(b) IS DISMISSED VIDE ORDER DATED 17.02.2017) AND :
1. SRI THIMMAIAH S/O KATAIAH SINCE DECEASED BY HIS LEGAL REPRESENTATIVES RESPONDENT NOs.3 TO 9.
2. SMT.PAPAVVA W/O LATE SRI THIMMAIAH AGED ABOUT 80 YEARS, R/AT BALENAHALLI CHITRADURGA TALUK CHITRADURGA DISTRICT PIN CODE – 577 522 3. SRI AJJAIAH S/O LATE SRI THIMMAIAH AGED ABOUT 75 YEARS, 4. SRI CHITHAIAH S/O LATE SRI THIMMAIAH MAJOR, SINCE DEAD BY HIS LEGAL REPRESENTATIVES (a) SOORAVVA W/O LATE SRI CHITHAIAH AGED ABOUT 60 YEARS, (b) AJJAIAH S/O LATE SRI CHITHAIAH AGED ABOUT 45 YEARS, (c) SANNA PAPAIAH S/O LATE SRI CHITHAIAH AGED ABOUT 40 YEARS, (d) BASAVARAJ S/O LATE SRI CHITHAIAH AGED ABOUT 34 YEARS, (e) CHITTAVVA D/O LATE SRI CHITHAIAH AGED ABOUT 27 YEARS, (f) JAYAVVA D/O LATE SRI CHITHAIAH AGED ABOUT 33 YEARS, (g) PAPAMMA D/O LATE SRI CHITHAIAH AGED ABOUT 29 YEARS, (h) KATAVVA W/O SRI HATTAPPA AGED ABOUT 38 YEARS, R/AT KELAGOTE, NEAR VENKATESHA TEMPLE TURUVANUR ROAD CHITRADURGA PIN CODE – 577 522 (i) OBAVVA W/O PAPANNA AGED ABOUT 36 YEARS, R/A RUDRAMMANAHALLI CHITRADURGA – 577 522 5. SRI DODDA KATAIAH S/O LATE SRI THAMMAIAH MAJOR 6. SRI KARIBORAIAH S/O LATE SRI THAMMAIAH MAJOR 7. SRI PAPAIAH S/O LATE SRI THAMMAIAH MAJOR 8. SRI BYANNA S/O LATE SRI THAMMAIAH MAJOR, SINCE DEAD BY HIS LEGAL REPRESENTATIVES (a) SMT.PAPAKKA W/O LATE SRI BYANNA MAJOR (b) SRI PAPANNA S/O LATE SRI BYANNA MAJOR, (c) SRI MALLIKARJUNA S/O LATE SRI BYANNA MAJOR (d) SRI KATAIAH S/O LATE SRI BYANNA AGED ABOUT 22 YEARS, (e) ANUSUYAMMA D/O LATE SRI BYANNA AGED ABOUT 20 YEARS, (f) RAJANNA S/O LATE SRI BYANNA AGED ABOUT 18 YEARS, (g) PAPAKKA D/O LATE SRI BYANNA AGED ABOUT 15 YEARS, (h) JAYAMMA D/O LATE SRI BYANNA AGED ABOUT 13 YEARS, 9. SANNAKATAIAH S/O LATE SRI THIMMAIAH MAJOR THE RESPONDENTS 3, R4(a) to (g), 5 to 7, 8(a) to 8(h) AND 9 ARE RESIDING AT GOLLARAHATTI JODICHIKKENAHALLI CHITRADURGA TALUK PIN CODE : 577 522. …RESPONDENTS (RESPONDENT NOs.2, 4(b), 4(c), 4(h) ARE SERVED SERVICE HELD SUFFICIENT IN RESPECT OF R4(d)(e), R6, R7, R-8(a), R-8(b), (d), (f), (g) AND (h) SRI G.BALAKRISHNA SHASTRY, ADVOCATE FOR R5, APPEAL DISMISSED AS ABATED AGAINST R3, R4(a & f), R8(c) AND R9 VIDE ORDER DATED 20.03.2014 VIDE ORDER DATED 08.06.2015 APPEAL IS DISMISSED AGAINST R4(g AND i) AND R8(e).
THIS RSA IS FILED UNDER SECTION 100 READ WITH ORDER XLII RULES 1, 2 AND 3 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 19.09.2009 PASSED IN R.A.No.29/2004 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT, CHITRADURGA, DISMISSED THE APPEAL AND CONFIRMED THE JUDGMENT AND DECREE DATED 22.08.1995 PASSED IN O.S.No.501/1989 ON THE FILE OF THE PRINCIPAL MUNSIFF, CHITRADURGA.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal is by the unsuccessful plaintiffs in O.S. No.501/1989 on the file of Prl. Munsiff, Chitradurga, which suit was initiated against the defendants for the reliefs of declaration and permanent injunction as well as possession thereby meaning that as on the date of filing of the suit, they were in possession and subsequently, they have lost possession to defendants.
2. Admittedly, the suit of plaintiffs, which is with reference to the suit schedule property bearing Sy. No.128 measuring 15 Acres 5 guntas and Sy. No.143 measuring 12 Acres 22 guntas both situate in Jodichikkenahally village, Chitradurga Taluk, came to be dismissed by the trial Court by judgment dated 22.08.1995. As against which, an appeal was filed by plaintiffs in R.A. No.29/2004 before the Court of Additional Sessions Judge, Fast Track Court, Chitradurga. The said appeal also came to be dismissed by judgment dated 19.09.2009. Thereafter, this second appeal is filed by plaintiffs.
3. The records reveal that the suit was filed by the original plaintiff, Kasu Sanjeevappa against Sri Thammaiah and eight others. During the pendency of the suit itself, original plaintiff died and his legal representatives came on record. Similarly, defendant No.1 - Thammaiah as well as defendant No.7 - Byanna died and their respective legal representatives came on record. During the pendency of Regular Appeal in the lower appellate Court, respondent No.4 – Chithaiah died and his legal representatives came on record.
4. When the matter stood thus, in this second appeal, several of legal representatives of appellant as well as respondents have died. Learned counsel for appellants would bring to the notice of this Court the judgment rendered by the Apex Court in the matter of Matindu Prakash (deceased) by LRs. vs. Bachan Singh and others (AIR 1977 SC 2029) in support of his submission that in view of death of several of legal representatives of the original appellant as well as respondents and their legal heirs being not brought on record, this second appeal abates in its entirety. He would also place on record that all his efforts to get the parties to bring the legal representatives on record and pursue the matter did not fructify and hence, he has no option but to bring the said facts to the notice of this Court.
5. The aforesaid submission of learned counsel for appellants is placed on record and the same is accepted by Sri G. Balakrishna Shastry, learned counsel for respondent No.5.
He further submits that several of the respondents in this appeal have died and their legal representatives have also not been brought on record. Though the judgment of the Apex Court in the case of Matindu Prakash (referred supra) may not apply to facts of this case on all fours, considering that the appellants are not interested in giving instructions to pursue this appeal on merits, the same is dismissed as it has become infructuous.
Sd/- JUDGE sma