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IN THE HIGH couaw or KARNATAKA AT BAgGALDD:?_"u
DATED THIS THE I7"*DmI 0? MARCH 2005f.
BEFORE) 'H _ A
THE HON'BLE fiR.JusII¢I,D;S}B0DaDxA *n
R.s.A.Nd;I§39/2Db6. =V" RVW
BETWEEN '
1 SMT SOMAMMA w/o'ERzeoWDA '~;»'
AGED ABOUT 66 YEARS _ I *
R/O DEVIGERE VILLAGE _aj-V ,
KAsABA;HOBL1. E :~= '~A*f~-m.
C.R.PA?NAiIELUK'_*_ ._»Iv .
HASSAN DISTRICT 573*2fi1 ,*
V *I"t. '- * ~. g... APPELLANT
(By $RI,DEvI:9RAsAD,sDgTIy, ADV FOR
MKS JAIAKUMAR S DATIL ASSOCIATES ;
AND 5;" 'V
. '. ' . . . . .
DVD/D,NINGEGowDA
AQED ABOUT 44 YEARS
NIN¢E§O§DA
* SEQ SHIVANANJEGOfiDA
AGED ABQUT 74 YEARS
'_l'».§
" BOTH R/A DEVIGERE VILLAGE
-VKASABA HOBLI,
C.R.PATMA TALUK
aassan DISTRICT '
3 MANJAMMA W/O SIDDEGOWDA
AGE: MAJOR
CEIKKADALUR VILLAGE
noticing that the plaintiff is in poseessiofi of >'
the suit schedule property, relief cf"perm§n¢g:~
injunction has been granted. 34In"eo far as'$hé?i
rejection ef the prayer 'for 'de¢1arafii¢n,, the
plaintiff had called in xk"cg,:L:1essjtion"'«.:lf;>:§'r filing
RA.No.5/2002. The tibwen .a§§eliate Court has
affirmed the judgment Hégd faaeree 'gagged by the
trial Court and} has _aecerdindiy; Edismissed the
appeal. The eieintiff}§therefcre. is before this
Court in 'this; seeondfsappeai""assailing the said
concurrent'judgments{xiV,f,
ii sHeardW,the ilearned Counsel for the
h,aepeiiant and perused the appeal papers.
"§. The facts in brief are that the plaintiff
iV_ was before the trial Court seeking for a
"«ideciaretion that the judgment and decree dated
f%_fi2.i2.1960 passed in GS.No.?i3/1960 is a
hcoiiusive decree and is not binding on the
elaintiff. The reason for claiming such a relief
was that, according to the plaintiff, the third
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defendant in the euit had been granted right over
the extent of 39 guntas inclusive of the extent
of 20 guntas of the suit schedule property.» The
said. right, according to the plaintiff,--twaeedby
way of a maintenance deed dated 13.3.i958;t#hiehr
was executed by the eeceed defefident? ehc is the
brother of the third defehdahtiSfitefianjamma. The
said Smt.Manjamma,gWehe£ had aacquired right in
respect of the 3§_§fin§ag ef iand in Sy.No.25, had
sold an eeteht ef 2S=euetee*to Manajanna by sale
deed dated 駧ii@1§Sd?=@hereafter, Manjanna said
the saeee#tovVLattane:=dewda by sale deed dated
29,2£i968. Subeequently, the plaintiff is said to
ihafie eetcheeed the extent of 20 guntas under a
A"5ele "deed fldéted 4.11.1976. Therefore, the
plaintiff ciaiming to be the lawful owner of the
u"", "suit "schedule property" had instituted the suit
ificiaifiing that when Smt.Manjamma bad right over
E"e; the said property in View of the maintenance deed
dated 13.3.1958 the defendants 1 and 2 could not
have filed a 'suit in OS.No.113/1960 and in the
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said, suit, the right of Smt.Manjamma could _not
have been given up so as to effect partition fly
excluding Smt.Manjamma. It is in that Aeoateata'
the plaintiff contended theta the ;§aia§jjfiagaenti"
and decree dated 12.i2.1§e§ in 05 ac iléxiéso is'
a collusive one so ea to defeat the right of the
plaintiff. Since the plaintifg figd Qurchased the
property undere thew iaaidja_aaielu deed dated
4.11.1975
,~i*$§ét{ eontehdedir that she is in
possession .and _enjo§aent _and therefore, the
judgment._and Vae§raé« ofl permanent injunction iaas
sought £o§.d The defendants had however opposed
the auit of the plaintiff. The trial Court had
lfrafied°as many as five issues initially and three
A=additionai fiaeues later. The material issues
were answered egainet the piaintiff ie., in so
‘Afar as the declaratory relief while the iaeues in
” respect of the injunctive relief were answered in
‘”‘favour of the plaintiff and as such, the suit was
ix decreed in part.
1;
M160!’
5. A perusal of the judgment passed by the
trial Court would indicate that the trial Court
has referred to the evidence rendered by gthe
parties. In so far as the right claimed by the
plaintiff to the property, the trial lCeert’ heel $_
noticed ‘that the .right fao§e{red,lgr«Sfitfhanjamma
under the document .dated; ld;§fi9§8 had only
granted a llieited Wrieht {to fiSet.Manjamma and
therefore; l¥g§1§;aihtiff:?¢$gnot claim: any” right
by’ waY”~0§fi ieoifirafiiuhl ‘ law so far as the said
finding :renderedd.bYjlthe: trial Court when the
plaintiff was before the lower appellate Court,
the lower afipellate Court has also noticed these
iaggectal def, the matter, more particularly,
A’relatin§;te the sale transaction which resulted
betweeg”theA parties, to be more specific, the
l*firstzetransaction was between Smt.Manjamma and
ldfiagjenna and thereafter Sri.Manjanna had seld 25
“vii: gnntas of land to Lakkana Gewda by sale deed
dated 29.2.1968 and thereafter, the plaintiff had
purchased 20 guntas of land under sale deed dated
the».
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4.11.1976. On noticing these aspects of the
matter the lower appellate Court has noticed that
the suit in question was filed in the year l9§0
and the decree was passed on 12.12.196Q:~t§tcge~.
in that background the lower appellate Cofirt has _ ”
adverted to the contents of the maintenance dé§dW
dated 13.3.1958 which was metked_ae fie P1; ;”oe’.
noticing the contente}’theHloeerteeeellate Court
has noticed the hatdrehof.tight éranted under the
said deedtw3inee_thesehgeeecte ef the matter have
been noticed by thg*l5wer appellate Court and has
come tela concleaich in eo far as the declaratory
relief, andd though ‘the same does not call for
.°intetfeienCe, what also requires to be noticed by
‘?thte”€eu§t’;$fthet, it is no doubt true that the
3dcgeent.”5efid decree dated 12.12.1960 in
lgQS.N0;?i3/1960 had been passed much prier to the
ef property by the plaintiff, however,
‘ ‘this would_ aleo indicate another aspect of the
“ydaetter, namely, that even after the said judgment
and decree passed in OS.fio.713/1960 the sale
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question of law for consideration in thi$””afp;.3_éa’.1__’V~.
the appeal being devoid of merits,
however, subject to the above; oi$§s1e;;*§’ation_}3′–..VV._ §~§9
costs.
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