IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE H.P. SANDESH R.F.A. NO.340 OF 2012 (Inj.) BETWEEN:
SRI L NARAYANA RAO , S/O LATE LAKSHMAN RAO, SINCE DECEASED BY LRS 1. SMT. H. LAKSHMIBAI, W/O LATE L. NARAYANA RAO, AGED ABOUT 62 YEARS, 2 . SRI N. SHANKAR RAO, AGED ABOUT 34 YEARS, 3 . NAGARAJA RAO AGED ABOUT 32 YEARS, 4 . BHARATHI N, AGED ABOUT 29 YEARS, 5 . N. CHANDRIKA, AGED ABOUT 24 YEARS, APPELLANTS 2 TO 5 ARE SONS & DAUGHTERS OF LATE L. NARAYANA RAO, ALL ARE RESIDING AT NO. B-44 PROPERTY NO.67, OLD NO.29, P.V.R. ROAD, K.R. MARKET, BENGALURU -560053. .. APPELLANTS (BY SRI. AMARESH A ANGADI, ADVOCATE) AND :
1 . SRI. V. THIRUNAVAKKARASU, AGED ABOUT 56 YEARS, S/O. LATE VEERAPPA CHETTIAR, RESIDING AT NO.184, 6TH CROSS, 4TH MAIN ROAD, CHAMARAJPET, BENGALURU -560018.
2 . THE COMMISSIONER BANGALORE MAHANAGARA PALIKE, BANGALORE.
3 . THE ASST. EXECUTIVE ENGINEER CHICKPET DIVISION, BANGALORE MAHANAGARA PALIKE, BANGALORE.
4 . ASSISTANT REVENUE OFFICER BANGALORE CITY CORPORATION, CHICKPET DIVISION, BANGALORE.
……RESPONDENTS (BY SRI. H.M.KISHORE KUMAR, ADVOCATE FOR SRI.A G SHIVANNA, ADVOCATE FOR R1; SRI.K.V.MOHAN KUMAR, ADVOCATE FOR R2 TO R4) ---
THIS RFA IS FILED UNDER SECTION 96 R/W. ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 30.08.2011 PASSED IN O.S.NO.8760/1997 ON THE FILE OF THE XXVII – ADDL. CITY CIVIL JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR PERMANENT INJUNCTION.
THIS RFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is filed challenging the judgment and decree passed in O.S.No.8760/1997 on the file of the XXVII Additional City Civil Judge, CCH.No.9, Bengaluru, in relation to cancellation of khata made in favour of defendant No.1 by the defendant Nos.2 to 4.
2. The parties are referred to with reference to their original rankings before the Trial court as plaintiffs and defendants for the sake of convenience and also in order to avoid confusion.
3. The plaintiff has filed suit for the relief of bare injunction and also sought for consequential relief of cancellation of khata effected in favour of the first defendant. The Trial Court after considering the oral and documentary evidence, decreed the suit partly granting permanent injunction against the defendant No.1 and rejected the claim of the plaintiff with regard to the cancellation of khata effected in favour of the defendant No.1, for the reasons stated in para 24 of the judgment of the Trial Court. Hence, the present appeal is filed.
4. The main contention of the appellants in this appeal is that the Court below failed to see that plaintiffs’ possession is settled possession since time immemorial whereas the first respondent (first defendant) has created a Will and thereafter on the basis of the said concocted Will got khata effected in colluding with respondent Nos.2 to 4. The Court below erroneously rejected the prayer of the appellants on the ground that a comprehensive suit is pending for declaration and hence, the Court cannot give any finding as to the title of the plaintiffs in this case when a comprehensive suit is pending and the plaintiffs have not made out any ground to cancel the khata. Learned counsel contended that the very observation of the Trial Court is erroneous. Learned counsel appearing for the appellants would contend that the Trial Court ought not to have rejected the prayer of the appellants and the defendant No.1 has obtained the khata based on the unregistered Will. Under section 114 of the Karnataka Municipal Corporation Act, if the Corporation comes to the conclusion that IF there is serious dispute with regard to the ownership of the property, the Corporation ought to have directed the parties to approach the Civil Court and the same has not been done and effecting khata in favour of the defendant No.1 is erroneous and hence, it requires interference by this Court.
5. Per contra, learned counsel for the respondents would contend that the Court below appreciated both oral and documentary evidence and rightly observed that there is comprehensive suit and in the suit for bare injunction, the court cannot decide the issue of title and hence the question of cancellation of khata does not arise. There is no merit in the appeal. Hence, learned counsel has prayed this court to dismiss the appeal.
6. I have heard the arguments of the appellants’ counsel and also the respondents’ counsel and keeping in view the grounds urged in the appeal memo and the contentions of both the parties, the points that arise for consideration of this Court are, (1) Whether the court below has committed an error in not canceling the khata made in favour of the first defendant?
(2) Whether it requires interference by this Court?
(3) What order?
7. The main contention of the appellants’ counsel in this appeal is, khata has been transferred in favour of the defendant No.1 based on the unregistered Will. Hence, it requires interference of this Court and the Trial Court has not properly appreciated the material on record and erroneously rejected the prayer.
8. On perusal of the judgment of the Trial Court, in para 24, the Trial Court has made a reference that a suit is pending before the Trial Court and the same is a comprehensive suit seeking for relief of declaration and hence, court cannot decide the issue and give any finding as to the title of the plaintiffs in the said case when the comprehensive suit is pending. The Trial Court has rightly assigned the reason and the Trial Court has not committed any error. The fact that O.S.No.8422/1999 filed by the plaintiffs against the defendants is pending and when the comprehensive suit is pending and the present suit is only for the relief of permanent injunction, question of canceling the khata does not arise. The dispute with regard to the Will is pending before the Trial Court in O.S.No.8422/1999. When the declaration suit is pending and when the relief sought for in the present suit is bare injunction, cancellation of khata also does not arise. With regard to the rights of the parties, the same has to be decided in the Trial Court, after the title of the parties is decided by the Trial Court. Consequently, the khata made in favour of the defendant No.1 also is subject to the result of the said comprehensive suit. Hence, I do not find any merit in the appeal.
In view of the discussions made above, I pass the following:-
ORDER Accordingly, the appeal is dismissed.
The other contentions of the appellants are left open.
Sd/- JUDGE Bss.