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Judgment
A.N. Venugopala Gowda, J.—Plaintiff is the appellant. O.S. No. 3943/2003 filed on 10.6.2003 in the City Civil Court, Bangalore, to pass a decree of permanent injunction against the defendants/respondents having been dismissed on 13.9.2007 by the learned I Additional City Civil and Sessions Judge, Bangalore, this appeal was filed on 16.10.2007. The case of the appellant is, that the respondents who were the absolute owners of the suit schedule property, executed a registered agreement of sale dated 28.10.1992 in favour of S. Banerjee and on execution of the said agreement, he was put in possession of the suit property. Simultaneously, on the same day, a General Power of Attorney was executed in favour of Smt. Indrani Banerjee, wife of S. Banerjee, in respect of the suit property and the said document contains covenant enabling the GPA holder/Smt. Indrani Banerjee to delegate powers given to her under the power of attorney. Smt. Indrani Banerjee delegated the power executed in her favour on 28.10.1992, by executing a General Power of Attorney dated 21.7.195 in favour of H.J. Siwani and M.J. Siwani. A sale deed dated 26.6.2002 was executed on 26.6.2002 in favour of the appellant by M.J. Siwani as power of attorney holder, conveying the suit property. Suit was instituted to pass a decree for permanent injunction against the defendants/respondents, the erstwhile owners of the suit property, who allegedly interfered with the peaceful possession and enjoyment.
After the suit summons were served, defendants though entered appearance through their learned advocate, did not file their written statement. Defendant No. 5 died during the pendency of the suit. The Trial Court ordered that the suit as against the deceased defendant No. 5 abated.
The plaintiff got himself examined as PW. 1 and marked Exs. P1 to P6. The learned Trial Judge having considered the record of the suit, passed a Judgment and Decree dismissing the suit.
Sri Abhinav Ramanand, learned advocate, appearing for the appellant, contended that the Trial Court has failed to consider the record of the suit in the correct perspective and that the record having not been correctly appreciated, the findings recorded are perverse and illegal. Learned Advocate submitted that on account of misdirection adopted in the matter, the suit has been erroneously dismissed, though the evidence which has been brought on record establishes that the plaintiff is the absolute owner of the suit property by virtue of Ex. P5, the sale deed and that Ex. P6 shows that he is in possession and enjoyment of the suit property.
Appellant filed I.A. 1/2012 under O.41 R. 27 r/w. S. 151 CPC to accord permission to produce additional evidence, such as, (i) Final Notification issued under S. 19(1) of the Bangalore Development Act, 1976 published in the Karnataka Gazette dated 14.2.2005; (ii) Notification dated 21.9.2007 issued under sub-section (1) of S. 48 of the Land Acquisition Act, 1894, published in Karnataka Gazette dated 21.9.2007 and (iii) A copy of the order dated 4.11.2008 passed in W.P. 3092/2006 which relates to the suit property. The respondents have filed statement of objections to I.A. 1/2012.
Sri Shivanand, learned advocate appearing for the respondents by taking me through the impugned Judgment, submitted that the plaintiff/appellant has not derived any valid right, title and interest on the suit property and that the plaintiff/appellant is also not in lawful possession or peaceful enjoyment of the suit property. Learned Advocate submitted that no case has been made out to grant the relief prayed in LA. 1/2012 and sought dismissal of the application as well as the appeal. Learned counsel further submitted that on account of a bonafide mistake, written statement was not filed and if IA were to'' be allowed, respondents may be granted an opportunity to file written statement and adduce evidence.
Having heard the learned advocates appearing on both sides and perused the record, the point for consideration is, whether the Trial Court is justified in dismissing the suit?
Suit was based on the documents marked as Exs. P1 to P6. Defendants though entered appearance through an Advocate, did not file the written statement. The Trial Court has certainly misdirected itself while passing the impugned Judgment. Findings recorded in the impugned Judgment are beyond the scope of the suit, which was filed only for grant of decree of permanent injunction. The learned Trial Judge ought to have found out, whether the plaintiff is in lawful possession and enjoyment of the suit property and whether there was illegal interference by the defendants Instead, the Trial Court has proceeded to record findings on matters which do not arise for determination keeping in view the scope of the suit.
Respondent No. 1 has filed O.S. No. 1834/2011 against the appellant, in the City Civil Court, Bangalore, in respect of the suit property, to pass a decree of declaration that he is the absolute owner of the suit property, with right, title, possession and enjoyment and to declare him as the absolute owner with a further declaration that deeds of agreement, General Power of Attorney, sale deed etc., which are marked in O.S. No. 3943/2003 as Exs. P1, P3 to P6 as sham and not binding on him and for grant of consequential reliefs. Since O.S. No. 3943/2003 has not been decided by the Trial Court on 13.9.2007, keeping in view the scope of the suit and as the respondent has filed O.S. No. 1834/2011 for grant of reliefs, noticed supra, there being an application to receive additional evidence filed in this appeal, i.e., I.A. 1/2012, in my opinion, in the interest of justice, the impugned Judgment and Decree deserves to be set aside.
In the result, appeal is allowed. The impugned Judgment and Decree are set aside. Suit is remanded to the Trial Court. The learned Principal City Civil and Sessions Judge, Bangalore, is directed to assign the suit to the Court where O.S. No. 1834/2011 is now pending. The respondents/defendants shall file written statement, if any, within a period of 4 weeks or on the date to which O.S. No. 1834/2011 is posted, whichever is later. Since the parties are common and both the suits relate to one and the same property, the Trial Court shall consolidate and decide both the suits together.
The documents produced along with I.A. 1/2012 be returned to the appellant for production of the same in the Trial Court. The Trial Court shall decide the suits expeditiously and within a period of one year from the date issues in O.S. No. 1834/2011 are raised and the suit is posted for evidence.
Both the parties shall appear in the Trial Court on 2.9.2012 and receive further orders.
Return LCR to the Trial Court, forthwith.
I.A. 1/2012 stands disposed of accordingly.