A S Manjunath vs Narayanappa Since Dead By Lrs. ...
2022 Latest Caselaw 3514 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 2ND DAY OF MARCH, 2022

                         BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

             R.S.A. NO.228 OF 2020 (PAR)

BETWEEN:

A.S. MANJUNATH
S/O. SOMA REDDY ALIAS SOMAIAH
AGED ABOUT 32 YEARS
R/AT RAINGUAGE EXTENSION
PAVAGADA,
TUMKUR DISTRICT-561202.
                                            ...APPELLANT
(BY SRI. ERAPPA REDDY M., ADVOCATE (VC))

AND:

NARAYANAPPA
SINCE DEAD BY LRS.

1.     VEDAMMA
       W/O LATE NARAYANAPPA
       AGED ABOUT 50 YEARS.

2.     SPOORTHI N.
       D/O LATE NARAYANAPPA
       AGED ABOUT 27 YEARS.

3.     KEERTHI
       D/O LATE NARAYANAPPA
       AGED ABOUT 25 YEARS.

       ALL ARE R/AT B. ACHAMMANAHALLI VILLAGE
       PAVAGADA TALUK,
       NOW R/AT NO.22/2,
       1ST 'D' MAIN ROAD,
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     GOKUL EXTENSION,
     YESHWANTHAPURA,
     BENGALURU-560022.

4.   SUBBAIAH
     S/O SOMAPPA
     AGED ABOUT 80 YEARS
     C/O CHANDRASHEKAR
     SOUNDARYA LADIES TAILOR
     SHOP NO.23/4, 3RD CROSS
     1ST STAGE, GOKUL EXTENSION
     YESHWANTHAPUR,
     BENGALURU-560022.

5.   SOMAIAH
     S/O SOMAPPA
     AGED ABOUT 75 YEARS
     R/AT BEHIND PENUKONDA FORT
     RAINGUAGE EXTENSION
     PAVAGADA
     TUMKUR DISTRICT-561202.

6.   SHIVARAMAIAH
     S/O SOMAPPA
     AGED ABOUT 63 YEARS
     RAINGUAGE EXTENSION
     PAVAGADA
     TUMKUR DISTRICT-561202.
                                        ...RESPONDENTS

(BY SRI. K. RAGHU, ADVOCATE FIRST APPELLATE COURT IS
SERVED VIDE COURT ORDER DATED 25.10.2021;
SERVICE OF NOTICE TO RESPONDENT NOs.1 TO 4 ARE HELD
SUFFICIENT)

     THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 29.08.2017 PASSED IN RA.NO.50/2016 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC, PAVAGADA
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 26.10.2015 PASSED IN OS.NO.333/2010
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC,
PAVAGADA.
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     THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

This appeal is filed by a third party challenging the

Judgment and Decree dated 29.08.2017 passed by the

Senior Civil Judge and JMFC at Pavagada (henceforth

referred to as 'First Appellate Court') in R.A. No.50 of

2016, by which it reversed the Judgment and Decree dated

26.10.2015 passed by the Prl. Civil Judge and JMFC at

Pavagada (henceforth referred to as 'Trial Court') in

O.S.No.333 of 2010.

2. The suit in O.S. No.333 of 2010 was filed for

partition and separate possession of the suit schedule

properties which included the land bearing Sy.No.110/3

(110/B) of Ramagiri village, Ramagiri Mandalam,

Ananthapur, Andhra Pradesh. The suit was dismissed in

terms of the judgment and decree dated 26.10.2015.

Thereafter, the plaintiffs filed an appeal in R.A. No.50 of

2016. The First Appellate Court allowed an application

under Order XLI Rule 27 of the Code of Civil Procedure,

1908 (hereinafter referred to as 'CPC') and also allowed an

application for amendment of the plaint. The First

Appellate Court without following the procedure prescribed

under Order XLI Rule 28 of CPC and without marking the

documents, allowed the appeal and decreed the suit of the

plaintiffs for partition and separate possession of 1/4th

share.

3. The appellant herein contends that the land

bearing Sy. No.110/3 (110/B) of Ramagiri village was

owned and possessed by his grandmother Smt.Achamma,

who bequeathed it in favour of the appellant in terms of a

Will dated 23.09.1990 and that Smt.Achamma died on

11.03.1991, and therefore, he became the full and

absolute owner of the said property. Therefore, he claimed

that the decree passed in O.S. No.333 of 2010 did not bind

his right, title and interest in the said property.

4. Since the suit is filed not only in respect of land

bearing Sy.No.110/3 (110/B) of Ramagiri village but also

in respect of other properties, it is appropriate to permit

the appellant to urge his contentions in the Final Decree

Proceedings that may be filed by the plaintiffs. The

appellant is at liberty to establish in final decree

proceedings that the property bearing Sy.No.110/3

(110/B) was owned and possessed by Smt.Achamma

absolutely and that she had bequeathed the same to the

appellant herein in terms of the Will referred above.

5. In view of the above, the question of

considering this appeal does not arise. Hence, this appeal

is dismissed, however, subject to the above observation.

6. Pending I.As., if any, does not survive for

consideration.

Sd/-

JUDGE

hnm