1. This appeal is filed by the 3rd defendant challenging the
judgment and decree dated 09.10.2006 passed in
O.S.No.8127/2002 thereby decreeing the suit granting
permanent injunction restraining the appellant herein and
respondents 3 & 4 from interfering with the possession and
enjoyment of the suit schedule properties by the
plaintiffs/respondents 1 & 2 herein.
2. The suit schedule properties as described in the plaint
schedule are site Nos.1 & 2 formed in Sy.No.97/2, Panchayat
Khaneshumari No.342/1 & 342/2 situated at Jakkur Village,
Yelahanka Hobli, Bangalore North Taluk, Bangalore, measuring
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East to West 60' and North to South 40'. Plaintiffs claimed that
they were the absolute owners in possession of the suit
properties which belonged to their forefathers. After the death
of the father of the plaintiffs, plaintiffs inherited the land
Sy.No.97/2 and got it converted from agricultural to non-
agricultural forming 37 sites. Defendants without having any
manner of right, title or interest started interfering with the
possession and enjoyment of the suit schedule sites by
plaintiffs which was resisted.
3. Defendants 1 & 2 though served remained
unrepresented. Hence, they were placed exparte. The 3rd
defendant - appellant herein appeared through a counsel, but
did not file any written statement. The Trial Court framed the
following issues:
i) Whether the plaintiffs prove that they are in
lawful possession and enjoyment of the suit
schedule properties?
iii) Whether the plaintiffs are entitled for the
injunction sought for?
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iv) What order or decree?
4. The 1st plaintiff examined himself as P.W.1 and got
marked Exs.P1 to P9. There was no cross-examination of
P.W.1. Based on the evidence on record, the Trial Court,
having accepted the version of the plaintiffs, has decreed the
suit for permanent injunction vide its judgment and decree
dated 09.10.2006. Aggrieved by this, present appeal is filed by
the 3rd defendant.
5. It is contended by the 3rd defendant - appellant herein
that she was not keeping well. Her brother-in-law received the
information regarding filing of the suit from third party.
Thereafter, he secured signature of appellant on vakalath and
engaged an advocate. But the matter was not defended before
the Court and appellant was kept in dark about the progress of
the case. Her brother-in-law informed appellant that the
advocate engaged had assured to inform the progress of the
case and send necessary information to the appellant whenever
required. On 29.11.2006 with the assistance of her brother-in-
law, appellant claims to have met the advocate and on enquiry,
she learnt about passing of the decree. Thereafter, without
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further loss of time, she has taken steps to file the present
appeal.
6. It is contended by the appellant that plaintiffs along with
their mother Smt.Kempamma jointly executed a General Power
of Attorney on 15.06.1989 in favour of the 1st defendant Sri
V.K.Ramanna in respect of some sites formed in the land
Sy.No.97/2 including the sites in question which are mentioned
in Schedule-A to the said GPA. Based on the GPA, 1st
defendant sold the sites in favour of the 2nd defendant vide
registered Sale Deed dated 07.02.1992. The 2nd defendant in
turn sold the sites in favour of 3rd defendant - appellant herein
vide registered Sale Deed dated 22.03.2000 and put her in
actual possession of the suit schedule sites. It is further urged
in the appeal memo that khatha has been changed in the name
of the appellant and appellant has paid taxes in respect of the
property in question.
7. Counsel for the appellant contends that due to
communication gap between the appellant and her counsel and
also on account of omission on the part of the brother-in-law of
the appellant in not taking proper steps through the advocate
engaged before the Trial Court, the judgment under challenge
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has been passed without appellant having any opportunity to
adduce evidence or cross-examine the witness examined by the
plaintiffs.
8. Learned counsel appearing for respondent No.2 justifies
the judgment and decree passed by the Court below.
Respondent No.4 though served has remained unrepresented.
9. Having heard the learned counsel for both parties, the
only point that arises for consideration is -
"Whether the judgment and decree under
appeal suffer from any illegality warranting
interference in this appeal?"
10. The facts, as adverted to above, clearly disclose that
appellant does not have a fair and reasonable opportunity to
participate in the proceedings before the Trial Court. There is a
registered Sale Deed executed in her favour in respect of the
sites in question. According to her version, her brother-in-law
had received notice from the Court and took the responsibility
to contest the case by engaging an advocate for her. An
advocate was indeed engaged, but he did not file written
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statement, nor cross-examine P.W.1, let alone leading any
evidence of defendant No.3.
11. Defendants 1 & 2 who were the GPA holder and the
subsequent purchaser from the original owner were placed
exparte. Therefore, the proceedings have virtually gone
uncontested. The appellant being a lady, having lost her
husband, had indeed faced difficulty in defending herself before
the Trial Court. In such circumstances, I am of the view that in
the ends of justice, an opportunity has to be given to the
appellant herein to contest the suit. The judgment under
challenge proceeds only on the basis that the testimony of the
plaintiffs remained unchallenged and therefore, their version
deserves to be accepted.
12. In the light of the above, I am of the view that the
judgment and decree deserve to be set aside and the matter has
to be remanded for fresh consideration in accordance with law
by providing an opportunity to the appellant - 3rd defendant to
file her written statement and lead evidence. Hence, the point
raised for consideration is answered accordingly.
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13. This appeal is allowed. Impugned judgment and decree
are set aside. The matter is remanded to the Trial Court for
fresh consideration. Appellant is given 30 days time from today
to file written statement. Both parties are directed to appear
before the Trial Court on 04.04.2014. The Trial Court is
directed to dispose of the case as expeditiously as possible, at
any rate, within a period of eight months from 04.04.2014.
Both parties are directed to maintain status-quo as on today till
the disposal of the suit. Appellant shall pay costs of `6,000/-
to respondent No.2 by the next date of hearing before the Trial
Court.
Sd/-
JUDGE
PKS