IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR R.F.A NO.2636/2007 BETWEEN:
Usha, W/o Bhagawan.G Aged about 48 years r/o No.29, 5th cross, Ashrama colony, Sanjaynagar, Bengaluru-560 094.
(Amended vide Order dt.13.12.2017) …. APPELLANT (By Sri Aravind Sharma, Adv. for Sri B.Rajendra Prasad,Adv. ) AND :
Sri V.C.Yogaiah S/o late Veeraiah, Aged bout 51 years, R/o No.100, Ashwathanagar, Sanjayanagara (Post), Bengaluru-560 094. RESPONDENT (By Smt. Vijetha R.Naik, Adv.- Absent) This R.F.A. is filed u/s.96 of CPC against the judgment and decree dt. 25.08.2006 passed in O.S.no.5364/1991 on the file of the VIII Addl. City Civil and Sessions Judge, Bangalore (CCH-15), partly decreeing the suit for declaration and permanent injunction.
This R.F.A. coming on for Hearing Interlocutory Application, this day, the Court delivered the following:
J U D G M E N T Heard the appellant’s counsel on I.A.1/2013 and also on merits of this appeal.
2. The counsel for the respondent is absent.
3. I.A.1/2013 is filed under Order 22 Rule 10 r/w Section 151 of C.P.C. by one Smt. Usha. G. stating that the suit property was purchased by one Vijayamma on 09.04.2009 from the appellant and then she purchased the very same property from Vijayamma through a registered sale deed dated 08.03.2013. She has further stated that after purchasing the suit property she came to know about the appeal. Therefore she has made this present application to get herself impleaded as appellant No.2. Copies of the sale deed are also produced. On perusal of these sale deeds it can be seen that one Narasamma, B.R.Rangaraju, B.R.Suchitra, B.R.Sujatha, B.R.Sumithra, B.R.Sunitha and B.R.Harish Babu executed a sale deed in favour of Vijayamma on 09.04.2009. Another sale deed dated 08.03.2013 shows that Vijayamma sold this property to the present applicant Smt. Usha.G. Therefore it is devolution of interest and for this reason the applicant Smt.Usha.G. gets right to prosecute this appeal. For this reason the application I.A. 1/2013 is allowed. Smt. Usha.G. is permitted to come on record in the place of original appellant B.R. Rangaraju.
4. The appellant’s counsel is directed to amend the cause title of the appeal memo by substituting the name of Smt.Usha.G. in the place of Sri B.R.Rangaraju.
5. The learned counsel for the appellant draws my attention to the order of this Court dated 11.03.2013. On that day, it was observed that this appeal deserves to be allowed. However, I heard the arguments of the appellant’s counsel on the merits of the appeal. The respondent’s counsel is absent.
6. The appellant instituted a suit O.S.No. 5364/1991 before the City Civil Court, Bengaluru for permanent injunction in respect of the suit property, ie., Khaneshumari No.14, Khatha No.373A of Geddalahalli, 1st Main Road, Aswathanagar, Sanjayanagar Post, Bangalore-560 094. Subsequently, the plaint was amended and relief of declaration and possession was also sought. The original plaintiff B.R.Rangaraju asserted his title in the suit property on the strength of a sale deed dated 10.04.1961 executed in favour of his father. In the written statement, the only contention taken by the defendant is that the plaintiff’s father delivered possession of the suit property to him by receiving valuable consideration, but could not execute the sale deed as he died. Therefore it is clear that the defendant also admits that the suit property earlier belonged to appellant’s father.
7. The Trial Court, after recording evidence came to the conclusion that the title of the plaintiff-appellant was established, it partly decreed the suit declaring the title of the plaintiff, but denied relief of possession. Aggrieved by the judgment of the Trial Court denying the relief of possession, this appeal has been preferred.
8. The appellant’s counsel submits that the defendant also preferred an appeal in R.F.A. No.2349/2006 questioning the judgment of the Trial Court declaring the title of the plaintiff, and that the said appeal was dismissed.
9. Now it becomes clear that the defendant/respondent has no matter of right or title in the suit property. In his written statement, he has not taken defence with regard to adverse possession. As the plaintiff’s title is forthcoming, he becomes entitled to possession also because suit is for declaration and possession. The Trial court having held that the title of the plaintiff had been established, should not have partly decreed the suit. It should have granted relief of possession also.
10. For this reason this appeal stands allowed. The judgment of the Trial Court is modified. It is held that the plaintiff is also entitled to relief of possession of the suit property. There is no order as to costs.
Sd/- JUDGE Snb/