Smt. Sudhamani vs Sri. H. A. Venugopal
2022 Latest Caselaw 7606 Kant

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        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 27TH DAY OF MAY, 2022

                           BEFORE

           THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

       MISCELLANEOUS FIRST APPEAL NO.1743/2021 (CPC)

BETWEEN:

SMT. SUDHAMANI
W/O SRI H A MURTHY,
AGED ABOUT 56 YEARS,
NO.422, 7TH BLOCK, 1ST MAIN,
C CROSS, KORAMANGALA
BENGALURU - 560 095
                                          ... APPELLANT
(BY SRI. VISHWAS S. REDDY, ADVOCATE FOR
    SRI. HARISH H V, ADVOCATE)

AND:

1.     SRI. H. A. VENUGOPAL
       S/O LATE ALASINGARAIAH,
       AGED ABOUT 56 YEARS,
       NO.334, 4TH A CROSS
       7TH BLOCK, KORAMANGALA
       BENGALURU - 560 095

2.     SRI H A SUDARSHAN
       S/O LATE ALASINGARAIAH,
       AGED ABOUT 56 YEARS,
       R/AT NO. 2/1, 3RD MAIN,
       SOCIETY COLONY, ADUGODI,
       BENGALURU - 560 030
                                           ... RESPONDENTS
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      THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(r) OF CPC, PRAYING TO SET ASIDE THE ORDER
DATED 11.02.2021 PASSED IN O.S.NO.3588/2019, VIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE AT BENGALURU (CCH-15) VIDE
DOCUMENT NO.1.

     THIS MISCELLENEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

The appellant is the plaintiff in O.S.No.3588/2019 on

the file of the VIII Additional City Civil and Sessions Judge,

Bengaluru (for short, 'the civil Court'). The civil Court by

the impugned order dated 11.02.2021 has rejected the

appellant's application (I.A.No.4) under Order XXXIX Rule 1

and 2 of the Code of Civil Procedure, 1908.

2. The appellant has filed this suit in

O.S.No.3588/2019 for partition and separate possession of

immovable property described as a revenue site in

Sy.No.60/1, (re-survey No.88/1B) of Tavarakere Village,

Begur Hobli, Bengaluru South Taluk (the subject property)

and for declaration that the judgment and decision in the

earlier proceedings by this Court and the Hon'ble Supreme

Court in R.F.A.No.1652/2010 and SLP (Civil)

No.41992/2018 are not binding on her.

3. The learned counsel for the appellant submits

that the appellant and the respondents (who are related)

constituted a Firm in the year 1979 and they jointly

purchased the suit schedule property. The respondents,

relying upon a document executed on 08.11.1990 for

dissolution of the Firm, have successfully contested the

earlier suit in O.S.No.9820/1998 resulting in the

judgments by this Court and the Hon'ble Supreme Court in

the aforesaid proceedings against the appellant's husband.

However, the finding in those proceedings cannot bind the

appellant because she was not a party to the proceedings.

The appellant's husband's say on the efficacy of the deed

dated 08.11.1990 cannot impair the appellant's claim over

the subject property given the undisputed fact that the

subject property is purchased jointly in the year 1982.

4. The civil Court has rejected the appellant's

application opining that with the document dated

08.11.1990 and the decision in the earlier proceedings

neither the appellant nor the second respondent can assert

any right, and the plaintiff has failed to make out a prima

facie case. This Court is not persuaded to opine that the

impugned order suffers from any irregularity and therefore,

the appeal must be disposed of observing that the merits of

the rival claims shall be decided independent of any

observation in the impugned order.

The appeal stands disposed of accordingly.

SD/-

JUDGE

RB