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2016 DIGILAW 507 (KAR)

N. RUKMANGADA NAIDU v. Y. KRISHNAPPA

2016-07-01

B.VEERAPPA

body2016
JUDGMENT : B. Veerappa, J. Even though the matter is posted for orders, by consent of learned counsel for the parties, the matter is taken up for final hearing. 2. This is a defendants' Regular First Appeal against the judgment and decree dated 29.10.2010 made in O. S. No. 6883/2009 on the file of the XXXIX Additional City Civil Judge, Bengaluru city, decreeing the suit of the plaintiff granting permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit schedule property. 3. The respondent-plaintiff filed the suit for permanent injunction against the present appellants - defendants contending that he is the absolute owner and in enjoyment of the site bearing No. 50, katha No. 31/2C carved out of Survey No. 31/2C, measuring East-West 80 ft. and North-South 30 ft. totally measuring 2400 square feet, situated at Kodichikkanahalli village, Begur Hobli, Bengaluru south taluk, now coming within the limits of BBMP Ward No. 17, Bengaluru and the same is more fully described in the suit schedule. 4. It is further case of the plaintiff that the suit schedule property is acquired by the plaintiff for valuable consideration under a registered sale deed dated 30.03.2005 from its erstwhile owner H. Ramachandraiah s/o H. Venkataramanappa and he was put in possession of the suit schedule property as on the date of the registered sale deed and ever since then, the plaintiff has been in possession and enjoyment of the suit schedule property. The plaintiff has obtained necessary katha in respect of the suit schedule property. Now, the area comes within the limits of BBMP and accordingly, the plaintiff has applied for necessary katha from the said local authority. However, the plaintiff has been paying the property tax under self-assessment scheme to the local authority. It is further contended by the plaintiff that the defendants are totally strangers to the suit schedule property and they are intending to grab the same. However, the plaintiff has been paying the property tax under self-assessment scheme to the local authority. It is further contended by the plaintiff that the defendants are totally strangers to the suit schedule property and they are intending to grab the same. A similar attempt was made by the defendants in respect of site No. 49 in the same survey number belonging to the plaintiff, which is adjacent site to the suit schedule property and the plaintiff was constrained to file a suit for permanent injunction in O. S. No.6883/2009 on the file of the XXXIX Additional City Civil Judge, Bengaluru city, which came to be decreed in favour of the plaintiff and further contended that the defendants-appellants are rich and highly influential persons, though the plaintiff has approached the jurisdictional police, he could not avail any assistance or protection from them, as he was advised to file a suit for the relief of perpetual injunction against the defendants in respect of the suit schedule property. Hence, he was constrained to file the present suit. 5. According to the judgment and decree of the Trial Court, the defendants were served and remained absent, therefore they are placed ex parte. 6. In order to substantiate his case, the plaintiff was examined as P.W.1 and marked the documents Exs. P1 to P18. 7. On the basis of the pleadings, the Trial Court framed the following issues :- "1. Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule property as on the date of institution of the suit? 2. Whether the plaintiff proves the interference of the defendants as alleged? 3. Whether the plaintiff is entitled for the relief of permanent injunction as sought? 4. What order or decree?" 8. The Trial Court after considering the evidence of P.W.1 and material documents Exs. P1 to P18 recorded a finding that the plaintiff has proved the possession as on the date of the suit and he is entitled to decree as prayed for. Accordingly, the Trial Court by the impugned judgment and decree dated 29.10.2010 granted permanent injunction in favour of the plaintiff. Against the said judgment and decree of the Trial Court, the present appeal is filed. 9. I have heard the learned counsel for the parties to the lis. 10. Sri. Accordingly, the Trial Court by the impugned judgment and decree dated 29.10.2010 granted permanent injunction in favour of the plaintiff. Against the said judgment and decree of the Trial Court, the present appeal is filed. 9. I have heard the learned counsel for the parties to the lis. 10. Sri. D. Ravi Kumar Gokakar, learned counsel for the appellants - defendants contended that the appellants did not appear before the Court below, inasmuch as, they were not served with the notice and respondent herein has given a false address. Therefore, the appellants have not filed written statement and the Trial Court proceeded to decree the suit without independently assessing the merits of the case and the judgment and decree passed by the Trial Court suffers from material irregularities. Therefore, he sought to set aside the judgment and decree of the Trial Court. 11. Per contra, Sri. Suresh S. Lokre, learned counsel for the respondent sought to justify the impugned judgment and decree of the Trial Court and submitted that since the appellants were not represented before the Trial Court, as they were placed ex parte, he fairly submitted that the matter may be remanded to the Trial Court for fresh adjudication on payment of costs of Rs. 10,000/-. The same is not opposed by the learned counsel for the appellants. 12. Without entering into the merits of the case, taking into consideration that the dispute between the parties is in respect of immovable property and the fair submission made by the learned counsel for the respondent' plaintiff and in the facts and circumstances of the present case, this Court is of the considered opinion, a fair opportunity should be afforded to the defendants-appellants who were placed ex parte, on payment of costs of Rs. 10,000/- payable to the plaintiff and to proceed with the matter. 13. In view of the aforesaid reasons, the appeal is allowed the impugned judgment and decree passed by the Trial Court dated 29.10.2010 made in O.S. No. 6883/2009, is hereby set aside and the matter is remanded to the Trial Court for fresh adjudication between the parties in accordance with law. Both the parties are directed to appear before the Trial Court on 20.07.2016. The defendants-appellants are directed to file their written statement on or before 30.07.2016 failing which, the decree stands. 14. Both the parties are directed to appear before the Trial Court on 20.07.2016. The defendants-appellants are directed to file their written statement on or before 30.07.2016 failing which, the decree stands. 14. The Trial Court shall proceed with the case only on payment of costs of Rs. 10,000/- by the defendants to the plaintiff and on production of acknowledgment for having paid the costs. If the defendants file written statement on 30.07.2016, the Trial Court shall proceed in accordance with law. 15. The parties are directed to maintain status quo till the disposal of the suit, that means they should not interfere with each other's possession. The Trial Court shall dispose of the suit as expeditiously as possible but not later than six months from the date of receipt of the certified copy of the judgment subject to co-operation by both the parties to the lis.