A.G. Sundar Raj vs Narasinga Rao

B.S. Patil, J.—These two appeals arise out of the judgment and decree dated 05.04.2002 passed by the XII Addl. City Civil Judge, Bangalore, in O.S. No. 504/1982 dismissing the suit filed by the plaintiff-appellant in R.F.A. No. 698/2002. The connected appeal R.F.A. No. 1228/2002 is filed by the defendants aggrieved by the findings recorded on Issue No. 5 holding that defendants had failed to establish their lawful possession over the suit schedule property.

The suit was filed by the plaintiff-appellant in R.F.A. No. 698/2002 seeking relief of declaration of title and for removal of the unauthorized building put up on the suit property and for a direction to put the plaintiff in vacant possession of the same.

Trial Court has dismissed the suit holding that plaintiff has failed to establish his ownership over the suit property and that defendant had put up unauthorized structures on the suit property. It has also found that plaintiff has not shown how he was entitled for vacant possession of the suit property. With regard to additional issues regarding sufficiency of court fee paid and bar of limitation pleaded by the 2nd defendant, the Trial Court has held that court fee paid was not sufficient and the suit was barred by time in so far as relief against the 2nd defendant was concerned. However, as regards Issue No. 5 which placed burden on the defendants to prove that they were in lawful possession of the suit schedule property, the Trial Court has recorded a finding that defendants had failed to establish that they were in lawful possession of the same. Aggrieved by the findings on Issue No. 5, connected appeal R.F.A. No. 1228/2002 is filed by defendants 1 & 2.

Defendants 1 & 2 are husband and wife. 2nd defendant was not arrayed as a party while filing the suit. Although it was pleaded by the 1st defendant-husband that property was purchased by the 2nd defendant and she was the absolute owner of the property and therefore, without impleading her the suit was not maintainable, plaintiff did not implead her for nearly 15 years and it is on that ground that Trial Court has held that the suit against the 2nd defendant who was the owner of the property was barred by time.

In so far as the appeal filed by plaintiff in R.F.A. No. 698/2002 is concerned, despite sufficient time granted, appellant and his learned Counsel have not appeared before the Court. Earlier one N.S. Satish Chandra was appearing for the appellant. He died. Court ordered notice to the appellant. Learned Counsel Mr. D.P. Shivaprasad who appeared for the appellant-Sri A.G. Sundar Raj submitted that he had already given no objections to his client to engage another advocate. He sought time to take steps to retire from the case by issuing proper notice to Sri A.G. Sundar Raj-the appellant. This has been noticed in the order dated 19.08.2014. Thereafter, on 05.09.2014, two weeks time was granted.

On 27.10.2014, when the matter was called, Mr. Shivaprasad was not present. The order sheet discloses that party in person though notified was not present. As the appeal was of the year 2002, office was directed to re-list this matter on 06.11.2014 by showing the name of Mr. D.P. Shivaprasad, because he had not complied with the direction issued by the Court directing him to issue notice to A.G. Sundar Raj. Thereafter, though this case was listed on couple of occasions, there has been no representation for the appellant nor the appellant-A.G. Sundar Raj was present.

However, Counsel for the respondents in R.F.A. No. 698/2002 was present. On 24.11.2014, the matter was again called. There was no representation for the appellant in R.F.A. No. 698/2002. Hence, this court passed the following order:

"On perusal of the orders dated 19.08.2014, 27.10.2014, 10.11.2014 and 13.11.2014, it is clear that the appellant in this case though served with notice by the Court has not shown any interest in prosecuting this appeal.

There is no representation for Sri D.P. Shiva Prasad, learned counsel who had filed a memo stating that appellant has taken back all the papers. Though he had undertaken to issue notice by way of registered post to the appellant and take steps to retire from the case, he has not made any such efforts. But, the fact remains that the appellant has taken back papers from him and he has not made any other arrangement to prosecute this appeal. This appeal being of the year 2002, no purpose will be served to adjourn the matter.

Learned counsel for respondents 1 and 2 defendants 1 and 2 submits that the connected appeal may be posted for hearing where the defendants have challenged the findings on issue No. 5.

Hence, list these appeals for hearing on 26.11.2014. It is made clear that if there is no representation for the appellant, the matter will be dismissed for non-appearance of the appellant and the connected appeal will be heard on merits."

Today again the matter is called. There is no representation for the appellant-A.G. Sundar Raj. His Counsel is also not present. In the circumstances, it is clear that appellant-A.G. Sundar Raj has lost interest in prosecuting this appeal. Hence, the appeal R.F.A. No. 698/2002 is liable to be dismissed for non-prosecution.

As regards the connected appeal R.F.A. No. 1228/2002 filed by defendants 1 & 2 in the suit, having heard the learned. Counsel for defendants 1 & 2, I find that findings recorded by the Trial Court on Issue No. 5 are entirely based on the Commissioner''s report. The documents produced by the defendants such as khatha extract and the notice issued by BBMP demanding tax have not been considered. Therefore, the said findings cannot be regarded as findings to non-suit the defendants in any further proceedings which they may seek to institute. Therefore, as the Trial Court has not taken into consideration all the relevant documents and has not applied its mind while holding that possession of the defendants was not lawful and that they had encroached a portion of the road, I am of the view that the said findings deserve to be set aside. It is made clear that defendants will have to establish their lawful possession if and when such question arises in future.

In the result, appeal filed by the plaintiff in R.F.A. No. 698/2002 is dismissed for non-prosecution. Appeal filed by the defendants in R.F.A. No. 1228/2002 with regard to the findings on Issue No. 5 is partly allowed to the extent stated above. Parties to bear their respective costs.

Copy of this order shall be dispatched to the address of the plaintiff-appellant in R.F.A. No. 698/2002 by R.P.A.D.