IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13th DAY OF DECEMBER, 2017 PRESENT THE HON’BLE MR.JUSTICE B S PATIL AND THE HON’BLE MR.JUSTICE ARAVIND KUMAR R.F.A.NO. 1205/2015 BETWEEN:
1. SRI. SATISHA S/O SRI. KODAPPA AGED ABOUT 46 YEARS R/O B.H. ROAD BANAVARA, ARASIKERE TALUK, HASSAN DISTRICT-573 112.
2. SRI. MANJUNATHA S/O SRI. REVANNA AGED ABOUT 44 YEARS HOTEL BUSINESS MAN R/O B.H. ROAD BANAVARA, ARASIKERE TALUK, HASSAN DISTRICT-573 112.
3. SRI. RANGANATHA S/O SRI. BHIMAIAH AGED ABOUT 49 YEARS R/O B.H. ROAD, BANAVARA, ARASIKERE TALUK, HASSAN DISTRICT-573 112.
4. SRI. RAVIKUMAR S/O SRI. MEESE SIDDAPPA AGED ABOUT 42 YEARS R/O B.H. ROAD, BANAVARA, ARASIKERE TALUK, HASSAN DISTRICT-573 112.
5. SRI. KUMARASWAMY S/O SRI. BHANDARI SIDDAPPA AGED ABOUT 44 YEARS HOTEL BUSINESSMAN R/O B.H. ROAD, BANAVARA, ARASIKERE TALUK, HASSAN DISTRICT-573 112.
… APPELLANTS (BY SRI. P.M. SIDDAMALLAPPA, ADVOCATE FOR A-1;
SRI. N. NANJUNDASWAMY, ADVOCATE FOR A-2 TO 5) AND:
1. SRI. B.G. SIDDESHWARA S/O SRI. B.R. GANGADHARAPPA AGED ABOUT 59 YEARS R/O HULIYAR ROAD BANAVARA, ARASIKERE TALUK HASSAN DISTRICT-573 112.
2. SRI. CHALUVAIAH S/O SRI. HONGYAPPA AGED ABOUT 59 YEARS R/O KUPPALU VILLAGE SINGATAGERE HOBLI KADUR TALUK.
3. SRI. CHALUVAIAH @ SANNACHALUVAIAH S/O SRI. HONGYAPPA AGED ABOUT 49 YEARS R/O HARIJANA COLONY BANAVARA, ARASIKERE TALUK HASSAN DISTRICT-573 112.
4. SRI. RANGAPPA S/O LATE SRI. K. RANGAPPA AGED ABOUT 62 YEARS 5. SMT. MALLAMMA D/O LATE SRI. K. RANGAPPA AGED ABOUT 77 YEARS 6. SMT. LAKSHMAMMA D/O LATE SRI. K. RANGAPPA AGED ABOUT 53 YEARS 7. SRI. B.R. RANGASWAMY S/O LATE SRI. K. RANGAPPA AGED ABOUT 51 YEARS 8. SMT. CHANDRAMMA D/O LATE SRI.K. RANGAPPA AGED ABOUT 45 YEARS 9. SMT. RUKMINI W/O SRI. KENCHAPPA AGED ABOUT 33 YEARS 10. SRI. B.R.KRISHNA MURTHY S/O LATE SRI. K. RANGAPPA AGED ABOUT 39 YEARS 11. SRI.B.R. LAKSHMANA S/O LATE SRI.K. RANGAPPA AGED ABOUT 37 YEARS RESPONDENTS 4 TO 11 ARE R/AT AGRAHARA COLONY BANAVARA, ARASIKERE TALUK HASSAN DISTRICT-573 113.
… RESPONDENTS (BY SMT. SONA VAKKUND, ADVOCATE FOR R-1; NOTICE TO R-2 TO 6 & R-8 TO R-11 IS NOT NECESSARY;
SRI. T. MOHAN KUMAR, ADVOCATE FOR R-7) THIS APPEAL IS FILED UNDER SECTION 96 OF CPC, PRAYING TO AGAINST THE DECREE DATED 04.06.2015 PASSED IN O.S.NO.10/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, AT ARSIKERE, DECREEING THE SUIT FOR DECLARATION AND POSSESSION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, B.S.PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed challenging the judgment and decree dated 04.06.2015 passed by the learned Senior Civil Judge and JMFC, Arsikere thereby decreeing the suit O.S.No.10/2011 filed by plaintiff – respondent -1 herein. Court below has held that plaintiff and his family members are the absolute owners of suit schedule property and has issued a direction to defendants to hand over vacant possession of suit schedule property to the plaintiff and is family members within three months from the date of judgment. Plaintiff has been held entitled to mesne profits from defendants for which separate proceedings have been ordered to be initiated.
2. This matter was heard at some length.
During the course of arguments, as this Court expressed its view that defendants who are in occupation of the property belonging to the plaintiff may take some reasonable time and vacate the same, both parties have negotiated with each other.
3. Defendants-appellants have filed affidavits of undertaking to vacate and hand over vacant possession of the property in their respective possession to the plaintiff if 15 months time from today is granted.
4. As learned counsel appearing for plaintiff – respondent-1 brought to the notice of the Court that some of the appellants/defendants namely, appellants- 1,3,4 & 5 have executed gift deeds in favour of their close relatives, affidavits have to be filed by the respective donees who have acquired property prior to filing of the suit. In view of this request made by learned counsel appearing for respondent-plaintiff, respective appellants namely, appellants-3 & 5 have filed the affidavit of donees/their wives wherein, similar undertaking is given to this Court stating that they would along with their respective husbands hand over vacant possession of the property in their possession on or before 15 months from today.
5. Appellant-1 has undertaken to file affidavit of his wife within a week from today. As regards appellant-4 who has executed gift deed in favour of his brother, donee i.e., brother of appellant-4, he has also filed an affidavit giving an undertaking to the same effect.
6. All the parties are present before court.
Appellants have been identified by their learned counsel. They have categorically stated that contents of the affidavit filed by them are true and they would vacate and handover possession of the property in their possession within 15 months from today i.e., on or before 31.03.2019. Undertaking given by way of affidavits by appellants-1,2, 3,4 & 5 and their respective donees are placed on record.
7. It is noticed that defendants-1,2, 8, 9, 10, 12, 13 to 15 who have been arrayed as respondents in this appeal as respondents-2 to 6 and 8 to 11 have not preferred any appeal challenging the judgment and decree in question. In that view of the matter, as we have come to the conclusion that appeals have to be dismissed by confirming the judgment and decree passed by the Court below with only modification regarding extension of time for vacating the premises and handing over possession thereof to the plaintiff, we are of the view that disposal of this case need not be delayed for their presence before this Court. Since they have not challenged the judgment and decree, service of notice to them in this appeal is not necessary.
Hence, we proceed to pass the following:
JUDGMENT (1) Appeal is hereby dismissed.
(2) Judgment and decree passed by the Court below is confirmed. Time granted by the Court below for vacating and handing over premises in question is extended till 31.03.2019 in terms of the schedule mentioned in their respective affidavits. As regards rest of the suit schedule land, plaintiff is at liberty to execute the decree.
(3) Court fee paid on the memorandum of appeal shall be refunded to the plaintiff – respondent-1 herein in terms of the provisions contained under Section 66(2)(c) of the Karnataka Court Fees and Suits Valuation Act, 1958 as both parties have agreed for the same.
(4) Respondent-1 – plaintiff has no objection for the appellants removing temporary structures put up on the respective properties.
In view of dismissal of this appeal, all the interlocutory applications stand disposed of as having become unnecessary.
Sd/- JUDGE Sd/- JUDGE *sp