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Kamalamma & Others v/s Janardhanaiah Since dead by his LRs. & Others

    Regular Second Appeal Nos. 245, 244, 263 of 2010
    Decided On, 22 March 2021
    At, High Court of Karnataka
    By, THE HONOURABLE MR. JUSTICE NATARAJ RANGASWAMY
    For the Appellants: D.R. Rajashekarappa, B.S. Sridhar, Advocates. For the Respondents: R1 & R2, H.P. Leeladhar, C.G. Gopalaswamy, Advocates.


Judgment Text
(Prayer: This RSA is filed under Section 100 of CPC against the judgment and decree dated 3.10.2009 passed in R.A.No.43/2003 on the file of the Presiding Officer, Fast Track Court-IV, Bangalore Rural District, Bangalore dismissing the appeal and confirming the judgment and decree dated 20.12.2002 passed in O.S.No.409/1993 on the file of the Principal II Civil Judge (Jr.Dn) Bangalore Rural Dist, Bangalore and etc.

This RSA is filed under Section 100 of CPC against the judgment and decree dated 3.10.2009 passed in R.A.No.44/2003 on the file of the Presiding Officer, Fast Track Court-IV, Bangalore Rural District, Bangalore dismissing the appeal and confirming the judgment and decree dated 20.12.2002 passed in O.S.No.491/1994 on the file of the Principal II Civil Judge (Jr.Dn) Bangalore Rural Dist, Bangalore and etc.

This RSA is filed under Section 100 R/w Order XLII Rule 1 of CPC against the judgment and decree dated 3.10.2009 passed in R.A.No.97/2004 on the file of the Presiding Officer, Fast Track Court-IV, Bangalore Rural District, Bangalore dismissing the appeal and confirming the judgment and decree dated 20.12.2002 passed in O.S.No.491/1994 on the file of the Principal II Civil Judge (Jr.Dn) Bangalore Rural Dist, Bangalore and etc.)

1. RSA No.245/2010 is filed by the plaintiff in O.S.No.409/1993 challenging the concurrent finding of fact recorded by the Courts below in O.S.No.409/1993 and RA No.43/2003, by which the Courts below refused to grant perpetual injunction in favour of the plaintiff.

2. RSA No.244/2010 is filed by the plaintiff in O.S.No.491/1994 challenging the concurrent finding of fact recorded by the Courts below in O.S.No.491/1994 and RA No.44/2003 by which Courts below refused to grant specific performance of the sale agreement dated 18.07.1992.

3. RSA No. 263/2010 is filed by defendant No.2 in O.S.No.491/1994 challenging the rejection of counter claim in O.S.No.491/1994 and the consequent rejection of first appeal in RA.No.97/2004.

4. The facts leading to the filing of O.S.No.409/1993, O.S.No.491/1994 are that suit property was possessed by one Thopanaiah who sold it to one Parameshwaraiah in terms of a sale deed dated 28.02.1966 and later Parameshwaraiah sold this property to son of Thopanaiah namely Janardhanaiahiah on 28.06.1968. Later Janardhanaiahiah sold the suit property to Manickyamma on 22.10.1969. It is stated that Manickyamma adopted her brother’s son Sri G Narayana and that after death of Smt. Manickyamma on 24.04.1972, G Narayana succeeded to the suit property as her adopted son. It is stated that G.Narayana executed an agreement of sale to sell the suit property in favour of plaintiff in terms of agreement of sale dated 18.07.1992 and placed the plaintiff in possession of the suit property. The plaintiff therefore, filed O.S.No.409/1993 for perpetual injunction against the children of Janardhanaiah who allegedly were interfering with the possession of the plaintiff. Later, Kamalamma who is the agreement holder filed a suit in O.S.No.491/1994 for specific performance of agreement of sale dated 18.07.1992. It is stated that during pendency of the suit, the said G.Narayana sold the suit property to defendant No.2. Hence, the plaintiff sought for specific performance of agreement of sale dated 18.07.1992 and also arrayed the subsequent purchaser as defendant No.2 in the suit.

5. Defendants in the suit namely children of Janardhanaiah contested the suit and claimed that Smt. Manickyamma had not adopted G Narayana and that therefore, he had not succeeded to the suit property. They also contended that the sale by Janardhanaiah in favour of Smt. Manickyamma was not acted upon as they continued in possession of the suit property. Defendant No.2 who was the subsequent purchaser contested the suit and claimed that he was a bona fide purchaser of suit property and sought for relief of perpetual injunction against the plaintiff.

6. The Trial Court clubbed both the suits along with another suit in O.S.No.620/1995 and held common trial and framed issues and dismissed the suit filed by the plaintiff in O.S.Nos.409/1993 and 491/1994 on the ground that the plaintiff had failed to prove that G Narayana was the adopted son of Smt. Manickyamma and that Smt. Manickyamma had executed a will in favour of G Narayana. Consequently, the Trial Court held that G Narayana did not possess any right, title or interest to convey the suit property to the plaintiff in terms of agreement of sale dated 18.07.1992. In so far as the counter claim filed by defendant No.2 is concerned, the same was also dismissed as he too was claiming under G Narayana.

7. Being aggrieved by the aforesaid judgment and decree of the Trial Court, the plaintiff had filed RA No.43/2003 before the First Appellate Court challenging the findings in O.S.No.409/1993 and RA No.44/2003. Challenging the findings recorded in O.S.No.491/1994, defendant No.2 filed RA No.97/2004 challenging the rejection of his counter claim. All these three appeals were heard and the First Appellate Court secured the records of the Trial Court heard the counsel for the parties, framed points for consideration and in terms of the judgment and decree 20.12.2002 dismissed the appeals.

8. Being aggrieved by the aforesaid findings recorded by the Courts below the plaintiff has filed RSA No.245/2010 and RSA No.244/2010 while defendant No.2 has filed RSA No.263/2010. All these appeals are listed for admission today.

9. Learned counsel for the respondent in O.S.No.246/2010 had placed on record a judgment and decree of this Court in RFA No.818/1997 where the adoption of G.Narayana by Smt.Manickyamma was questioned. This Court held that adoption of G Narayana was not proved. This Court also held that the will set up by G Narayana allegedly executed by Smt. Manickyamma was also not proved. In that view of the matter, learned counsel submits that the finding on the issue regarding adoption of G.Narayana has attained finality and therefore is binding upon the parties as well as persons claiming under G Narayana.

10. Having heard the learned counsel for the parties, this Court had categorically held in RFA No.818/97 that G.Narayana was not adopted by Smt. Manickyamma and this finding had attained finality. In that view of the matter, the plaintiff who claims to have purchased suit property from G.Narayana cannot derive any right, title or interest in the suit property. Hence the dismissal of the suit filed by the plaintiff for perpetual injunction and for specific performance is proper valid and justified and does not call for interference by this Court. Even otherwise, finding of the Courts below that the plaintiff ha

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d failed to prove lawful execution of the agreement of sale dated 18.07.1992 does not throw up any substantial question of law that needs to be considered by this Court. Consequently, appeal filed by the plaintiff in RSA Nos.245/2010 and 244/2010 lack merit and the same are dismissed. In so far as the appeal filed by defendant No.2, since he too claimed under G.Narayana who did not possess any right, title or interest in the suit property, the defendant No.2 also did not derive any right, title or interest in respect of suit property. Consequently, findings of the Courts below that defendant No.2 had no right, title or interest in the suit property is valid and does not call for interference by this Court. Hence, RSA No.263/2010 is also dismissed.
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