Earamma vs Mounayya @ Mounesh And Ors
2021 Latest Caselaw 7044 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 22ND DAY OF DECEMBER 2021

                       PRESENT

         THE HON'BLE MR.JUSTICE R. DEVDAS
                          AND
 THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

             RFA No.200199/2019 (PAR/PO)


BETWEEN:

EARAMMA W/O RAMANNA
AGE: 51 YEARS OCC: HOUSEHOLD
R/O HOSUR VILLAGE, TQ & DIST: RAICHUR
                                        ...APPELLANT
(BY SRI.MAHANTESH PATIL, ADVOCATE)


AND

1.     MOUNAYYA @ MOUNESH
       S/O EARAPPA
       AGE: 65 YEARS OCC: AGRICULTURE
       R/O SANGAPUR VILLAGE TQ:MANVI
       DIST: RAICHUR-584101.

2.     SRI. KALAPPA
       S/O MOUNAYYA @ MOUNESH
       AGE: 40 YEARS OCC:AGRICULTURE
        R/O SANGAPUR VILLAGE TQ:MANVI
       DIST: RAICHUR
                            2



3.   SMT. LAXMI W/O SHAMASUNDAR
     AGE: 40 YEARS OCC:HOUSEHOLD,
     R/O: HOSUR VILLAGE
     TQ & DIST: RAICHUR,
     NOW RESIDING AT SANGAPUR VILLAGE
     TQ:MANVI DIST: RAICHUR-584101.

4.   SRI.VENKATESHWAR RAO,
     S/O: SURYANARAYANA MURTHI,
     AGE: 46 YEARS, OCC: AGRICULTURE,
     R/O: DONNE BASVANNA CAMP,
     SANGAPUR, TQ: MANVI,
     DIST: RAICHUR-584101.

5.   SRI. B.SUBBARAO,
     S/O: SURYANARAYANA MURTHI
     AGE: 41 YEARS, OCC: AGRICULTURE,
     R/O: D.B.CAMP,
     SANGAPUR VILLAGE,
     TQ: MANVI, DIST: RAICHUR-584101.

6.   SRI.P. NAGESHWAR RAO,
     S/O: VENKATRAO,
     AGE: 33 YEARS, OCC: AGRICULTURE,
     R/O: SRINIVAS CAMP,
     K.GUDUDINNI,
     TQ: MANVI, DIST: RAICHUR-584101.
                                        ....RESPONDENTS

( RESPONDENTS - SERVED )

     THIS RFA FILED IS FILED UNDER SECTION 96 OF CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
25.01.2019 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC,
SINDHANUR SITTING AT MANVI, IN O.S. NO.284/2014 (OLD
O.S. NO.54/2013) AND CONSEQUENTLY DECREE THE SUIT OF
THE PLAINTIFF BY GRANTING 1/4TH SHARE IN THE SUIT
SCHEDULE PROPERTIES AND ETC.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
RAJENDRA BADAMIKAR J., DELIVERED THE FOLLOWING:
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                        JUDGMENT

This appeal is filed under Section 96 of Code of

Civil Procedure (for short 'CPC') challenging the

judgment and decree dated 25.01.2019 passed in

O.S.284/2014 (old No.54/2013) on the file of the

Senior Civil Judge & JMFC, Sindhanur sitting at Manvi,

(herein after referred to as 'the Trial Court')

dismissing the suit filed by the plaintiff/appellant

herein.

2. The factual matrix leading to the case is

that, the plaintiff/appellant has filed a suit for partition

and separate possession of her share in the suit

schedule properties. According to plaintiff one Erappa

was the propositus who had a son by name Mounayya

@ Mounesh i.e. defendant No.1 and defendant Nos.2

and 3 are the children of said Mounayya @ Mounesh

i.e. defendant No.1. It is the specific assertion of the

plaintiff that suit schedule properties are the ancestral

joint family properties inherited by defendant No.1.

The trial Court dismissed the suit only on the ground

that the plaintiff has failed to produce any document

such as RTC to show that the suit schedule properties

were standing in the name of propositus Erappa. As

such the trial Court came to a conclusion that the

plaintiff has failed to prove that suit scheduled

properties are ancestral joint family properties and

dismissed the suit. Therefore, the plaintiff has

approached this Court.

3. During the pendency of the proceedings,

the plaintiff/appellant has filed IA.No.1/2021 under

Order XLI Rule 27 of CPC, for production of additional

documents to show that the revenue records

pertaining to the suit scheduled properties were

originally standing in the year 1968-69 in the name of

propositus Erappa and subsequently, the name of

defendant No.1 was mutated on the basis of

inheritance. These documents prima facie establish

that the suit scheduled properties are ancestral joint

family properties. As such the learned counsel for the

appellant would seek for remand of the matter, in

order to establish that the suit scheduled properties

are ancestral joint family properties by leading

evidence before trial Court.

4. The defendants/respondents though served

remained unrepresented. Further before the trial

Court also they did not contest the suit, but the trial

Court based on the documents, came to a conclusion

that plaintiff has failed to establish the aspect of

acquisition of the suit scheduled properties by

defendant No.1 by way of inheritance.

5. Looking to the facts and circumstances and

considering the documents produced now before this

Court through IA.No.1/2021, we are of the opinion

that opportunity should be granted to the appellant/

plaintiff to lead evidence to prove that suit scheduled

properties were originally standing in the name of

propositus Erappa and were inherited by defendant

No.1. Hence, it requires a detailed consideration and

as such, the matter requires to be remanded to the

trial Court for fresh disposal in accordance with law by

allowing IA.No.1/2021 filed for production of

additional documents. Accordingly, we proceed to

pass the following;

ORDER

The appeal is allowed. Consequently, IA.No.1/2021 filed under Order XLI Rule 27 of CPC is also allowed.

The judgment and decree dated 25.01.2019 passed in O.S.284/2014 (old No.54/2013) on the file of the Senior Civil Judge & JMFC, Sindhanur sitting at Manvi, is hereby set aside.

The matter is remitted back to the trial Court to re-hear the matter by giving an opportunity to the plaintiff to lead further evidence and an opportunity to defendants/respondents also to contest the matter. All contentions are kept open.

The registry is directed to transmit the documents produced under IA.No.1/2021 along with trial Court records to the trial Court forthwith to enable the plaintiff to lead evidence on these documents.

The plaintiff/appellant is directed to appear before the trial Court on 24.01.2022 and take appropriate steps against the defendants for their appearance as they are unrepresented before this Court.

Sd/-

JUDGE

Sd/-

JUDGE msr