Karnataka High Court
Leelamma Alexander vs S V Suman on 19 December, 2023
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
1
RFA NO.501 OF 2010 C/W
RFA NOS.242 OF 2010, 328 OF 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
PRESENT
TH E HON'BLE MR. JU ST ICE P. S.D INE SH KUM AR
AN D
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
RFA NO.501 OF 2010 C/W
RFA NOS.242 OF 2010, 328 OF 2010 (PAR)
IN RFA NO.501 OF 2010
BETWEEN:
1. MRS. JEMMY GANAPATHY
W/O P.S.GANAPATHY
AGED 67 YEARS, PLANTER
GENERAL THIMMAIAH ROAD
MADIKERI, KODAGU DIST - 571 211
2. MRS. K. GANGAVVA GANAPATHY
WIFE KANDRATHANDA A GANAPATHY
AGED ABOUT 92 YEARS, PLANTER
R/O G.T.ROAD, MADIKERI - 571 211
KODAGU DISTRICT
BOTH THE APPELLANTS ARE REP. BY THEIR
POWER OF ATTORNEY HOLDER
MR.P.S.GANAPATHY, S/O LATE SUBBAIAH
AGED ABOUT 72 YEARS, PLANTER
G.T.ROAD, MADIKERI,
KODAGU DIST. ... APPELLANTS
(BY SRI.JOSHUA SAMUEL, ADV.)
AND:
1. KUMARI SUMAN
2
RFA NO.501 OF 2010 C/W
RFA NOS.242 OF 2010, 328 OF 2010
D/O S M UDAYA SHANKAR
AGED ABOUT 34 YEARS
R/AT RAGHAVENDRA KRUPA
GUDURAO BADAVANE I BLOCK
KUSHALNAGAR, SOMWARPET TALUK
KODAGU DISTRICT
2. MR. S.U.SACHIN
S/O S M UDAYASHANKAR
AGED ABOUT 28 YEARS
R/AT RAGHAVENDRA KRUPA
GUNDURAO BADAVANI BLOCK
KUSHALNAGAR, SOMWARPET TALUK
KODAGU DISTRICT
3. MR. S M UDAYASHANKAR
S/O S S MARIAPPA
AGED ABOUT 56 YEARS
R/AT RAGHAVENDRA KRUPA
GUNDURAO BADAVAN I BLOCK
KUSHALNAGAR, SOMWARPET TALUK
KODAGU DISTRICT
4. MRS. S U ARUNA SHANKAR
W/O S M UDAYASHANKAR
AGED ABOUT 53 YEARS
R/AT RAGHAVENDRA KRUPA
GUNDURAO BADAVANE, I BLOCK
KUSHALNAGAR, SOMWARPET TALUK
KODAGU DISTRICT
5. MR M N CARIAPPA
S/O KUTTATRIA NANJAPPA
AGED ABOUT 75 YEARS
COFFEE PLANTER
KANNAGALA ESTATE
KANNAGALA TALUK
KODAGU DISTRICT
6. MRS. LEELAMMA ALEXANDER
W/O M G ALEXANDER
AGED ABOUT 46 YEARS
R/AT KARNAD VILLAGE
AMMATHI NADVIRAJPET TALUK
3
RFA NO.501 OF 2010 C/W
RFA NOS.242 OF 2010, 328 OF 2010
KODAGU DISTRICT
7. MR. BALAKRISHNA MANKANI
S/O LATE LACHMANDAS MANKAN
376, 100 FT. ROAD, INDIRANAGAR
BANGALORE-560 038
8. MR. RAMAKRISHNA MANKANI
S/O LATE LACHMANDAS MANKAN
376, 100 FT. ROAD, INDIRANAGAR
BANGALORE-560 038
9. MR KAMAL HAJI
S/O LATE ABDUL RAHAM
AGED ABOUT 83 YEARS
10 . MR. K T ZUBARI
S/O A K KAMAL HAJI
AGED ABOUT 48 YEARS
R/O KOHINOOR ROAD
MADIKERI - 571 211
11 . MR K T ZABITH
S/O A K KAMAL HAJI
AGED ABOUT 44 YEARS
12 . MR C ABDUL SALAM
S/O HAMEED HAJI
AGED ABOUT 61 YEARS
13 . MR P C KUNHI MOHAMMED
S/O K T ABDULLA KUTTI
AGED ABOUT 55 YEARS
RESPONDENT NO.9 TO 14 ARE
R/O KOHINOOR ROAD, MADIKERI - 571 211
...RESPONDENTS
(BY SRI. M. S. VENUGOPAL, ADV. FOR R2;
VIDE ORDER DATED 10.12.2011
NOTICE TO R1, R5, R7 TO E13 ARE DISPENSED WITH;
R3, R4 & R6 ARE SERVED)
4
RFA NO.501 OF 2010 C/W
RFA NOS.242 OF 2010, 328 OF 2010
THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 03.12.2009
PASSED IN O.S.NO.120/1994 ON THE FILE OF THE CIVIL
JUDGE (SR.DN) MADIKERI DECREEING THE SUIT AGAINST
DEFENDANTS NO.1 TO 5 & 13, SUIT FOR DECLARATION
SEPARATE POSSESSION CANCELLATION OF SALE DEEDS AND
FUTURE MESNE PROFITS.
IN RFA NOS.242 OF 2010
BETWEEN:
LEELAMMA ALEXANDER
W/O M.G.ALEXANDER
AGED 45 YEARS
R/AT KARMAD VILLAGE
AMMATHI NAD
VIRAJPET TALUK
KODAGU DISTRICT - 571 234. ... APPELLANT
(BY SRI.T. A. KARUMBAIAH, ADV.)
AND:
1. S U SUMAN
D/O S N UDAYASHANKAR R/AT RAGHAVENDRA KRUPA
GUNDURAO BADAVVANE, I ST BLOCK, KUSHALNAGAR
SOMWARPET TALUK KODAGU DISTRICT
2. S V SACHIN S/O S N UDAYASHANKAR
R/AT RAGHAVENDRA KRUPA GUNDURAO BADAVANE
I ST BLOCK KUSHALNAGAR SOMWARPET TALUK
KODAGU DISTRICT
3. S M UDAYASHANKAR S/O LATE S S MARIYAPPA
AGED 58 YEARS, R/AT RAGHAVENDRA KRUPA
GUNDURAO BADAVANE I ST BLOCK KUSHALNAGAR
SOMWARPET TALUK, KODAGU DISTRICT - 571 201
4. S U ARUNA SHANKAR
W/O S N UDAYASHANKAR
R/AT RAGHAVENDRA KRUPA GUNDURAO BADAVANE
I ST BLOCK KUSHALNAGAR SOMWARPET TALUK
KODAGU DISTRICT - 571 201
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RFA NOS.242 OF 2010, 328 OF 2010
5. M N CARIYAPPA S/O MUKKATIRA NANJAPPA
AGED 66 YEARS, COFFEE PLANTER
KANNANGALA ESTATE KANNANGALA
VILLAGE AMMATHI NAD VIRAJPET TALUK - 571 201
6. K GANGAVVA GANAPATHY W/O LATE KANDRATHANDA
A GANAPATHY PLANTER, G.T.ROAD, MADIKERI
KDOAGU DISTRICT
7. BALAKRISHNA MANKHANI
AGED ABOUT 60 YEARS
S/O LATE LACHMANDAS MANKHANI
R/AT NO.376, 100FT. ROAD, INDIRANAGAR
BANGALORE 38
8. RAMAKRISHNA MANKHANI
AGED 58 YEARS
S/O LATE LACHMANDAS MANKHANI
R/AT NO.376, 100FT. ROAD, INDIRANAGAR
BANGALORE 38
9. A A KAMALHAJI
S/O LATE ABDUL REHMAN
AGED 82 YEARS
10 . K T ZUBARI S/O A K KAMAL HAJI
AGED 48 YEARS
11 . K T ZABITH S/O A K KAMAL HAJI
AGED 46 YEARS
12 . C ABDUL SALAM S/O HAMEED ALI
AGED 61 YEARS
13 . P C KUNHI MOHAMMED
S/O K T ABDULLA KUTTY
AGED 55 YEARS
RESPONDENTS 9 TO 13 ARE
R/AT KOHINOOR ROAD
MADIKERI, KODAGU DIST 571 201
14 . JEMMY GANAPATHY W/O P S GANAPATHY
AGED 76 YEARS, PLANTER
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RFA NO.501 OF 2010 C/W
RFA NOS.242 OF 2010, 328 OF 2010
GEN. THIMMAIAH ROAD
MADIKERI, KODAGU DIST 571 201 ...RESPONDENTS
(VIDER ORDER DATED 29.07.2011;
NOTICE TO R1, R7 TO R13 ARE HELD SUFFICIENT
R2, R4 TO R6 AND R14 ARE SERVED)
THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 03.12.2009 PASSED IN O.S.NO.120/1994 ON
THE FILE OF THE CIVIL JUDGE (SR.DN) MADIKERI DECREEING
THE SUIT FOR PARTITION AND SEPARATE POSSESSION,
MESNE PROFITS.
IN RFA NO.328 OF 2010
BETWEEN:
1. MR. M. N. CARIAPPA
S/O KUTTATRIA NANJAPPA
AGED ABOUT 75 YEARS
SINCE DEAD BY LRS.
1(a) MRS.MUTHU CARIAPPA
W/O LATE M.N.CARIAPPA
AGED ABOUT 60 YEARS
1(b) MR. M. C. KARUMBAIAH
S/O LATE M.N. CARIAPPA
AGED ABOUT 34 YEARS
1(c) MR. M. C. NANJAPPA
S/O LATE M.N.CARIAPPA
AGED ABOUT 32 YEARS
ALL ARE R/AT KANNANGALA VILLAGE
VONTIANGADI POST, SOUTH KODAGU ... APPELLANTS
(BY SRI.JOSHNA H. SAMUEL, ADV.)
AND:
1. KUMARI SUMAN D/O S M UDAYA SHANKAR
AGED 34 YEARS, R/A RAGHAVENDRA KRUPA
7
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RFA NOS.242 OF 2010, 328 OF 2010
GUDURAO BADAVANE, I BLOCK KUSHALNAGAR
SOMWARPET TQ., KODAGU DISTRICT
2. MR S U SACHIN S/O S M UDAYASHANKAR
AGED 28 YEARS, R/A RAGHAVENDRA KRUPA
GUNDARAO BADAVANE, IST BLOCK KUSHALANAGAR
SOMWARPET TQ., KODAGU DIST
3. MR S M UDAYASHANKAR S/O S S MARIAPPA
AGED 56 YEARS R/A RAGHAVENDRA KRUPA
GUNDURAO BADAVANE I BLOCK, KUSHALANAGAR
SOMWARPET TQ KODAGU DIST.
4. MRS S U ARUNA SHANKAR W/O S UDAYASHANKAR
AGED 53 YEARS R/A RAGHAVENDRA KRUPA
GUNDURAO BADAVANE I BLOCK KUSHALANAGAR
SOMWARPET TQ., KODAGU DIST.
5. MRS K GANGAVVA GANGAPATHY
W/O SRI KANDRATHANDA A GANAPATHY
AGED ABOUT 66 YEARS, PLANTER,
G T ROAD, MADIKERI, KODAGU DIST 570 201
6. MRS LEELAMMA ALEXANDER W/O M G ALEXANDER
AGED 46 YEARS, R/A KARNAD VILLAGE
AMMATHI NAD, VIRAJPET TQ KODAGU DIST
7. MR BALAKRISHNA MANKANI
S/O LATE LACHMANDAS MANKANI
376, 100 FEET ROAD INDIRANAGAR
BANGALORE 560 038
8. MR RAMAKRISHNA MANKANI
S/O LATE LACHMANDAS MANKANI
376, 100 FEET ROAD INDIRANAGAR
BANGALORE - 560 038
9. MR KAMAL HAJI S/O LT ABDUL RAHAM
AGED 83 YEARS
10 . MR K T ZUBARI S/O A K KAMAL HAJI
AGED 48 YEARS
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RFA NOS.242 OF 2010, 328 OF 2010
11 . MR K T ZABITH S/O A K KAMAL HAJI
AGED 44 YEARS
12 . MR C ABDUL SALAM S/O HAMEED HAJI
AGED 61 YEARS
13 . MR P C KUNHI MOHAMMED
S/O K T ABDULLA KUTTI
AGED 55 YEARS
14. MRS.GEMMY GANAPATHY
W/O P.S.GANAPATHY, AGED 67 YEARS
GENERAL THIMMAIAH ROAD, MADIKERI
RESPONDENTS 9 TO 13 ARE
R/O KOHINOOR ROAD MADIKERI.
...RESPONDENTS
(BY SRI. M. S. VENUGOPAL, ADV. FOR R2;
SRI. T. A. KARUMBAIAH, ADV. FOR R6;
R1, R3, R4, R5, R9, R10, R11, R12 TO R14 ARE SERVED;
VIDE ORDER DATED 27.09.2010
NOTICE TO R7 & R8 ARE DISPENSED WITH)
THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 03.12.2009
PASSED IN O.S.NO.120/1994 ON THE FILE OF THE CIVIL
JUDGE (SR.DN) MADIKERI DECREEING THE SUIT FOR
DECLARATION, MESNE PROFITS AGAINST DEFENDANTS NO.1
TO 5 & 13, THEREIN AND DISMISSING THE SUIT AGAINST
THE DEFENDANTS NO.6 TO 12 THEREIN.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 11.08.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
T.G.SHIVASHANKARE GOWDA J., DELIVERED THE
FOLLOWING:
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RFA NOS.242 OF 2010, 328 OF 2010
JUDGMENT
These three appeals are filed against the
judgment and decree dated December 3, 2009 in
O.S.No.120/1994 passed by the Civil Judge
(Snr.Division), Madikeri (in short 'the Trial Court')
decreeing the suit for partition, separate possession
and cancellation of sale deeds dated 09.01.1987,
13.05.1988 and 22.08.1990.
2. For the sake of convenience, parties shall be
referred as per their status before the Trial Court.
3. The suit was originally filed against 13
defendants. During the pendency of the suit,
plaintiffs and defendants No.8 to 12 have settled the
matter and filed the compromise petition in respect
of item Nos.8 to 16 and 19 vide order dated
13.08.2009. Therefore, the suit against them was
dismissed and the suit is proceeded against
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RFA NOS.242 OF 2010, 328 OF 2010
defendant Nos.1 to 7 in respect of item Nos.1 to 7,
17 and 18 of the suit schedule properties.
4. The genealogical tree is extracted below for
reference:
S.S.Mariyappa
Susheela Devi
Jaishankar Udayashankar
Hiran.S. Pawan Kumar S. S.U.Suman S.U.Sachin
5. Plaintiffs' case is, Mariyappa was the kartha
of the HUF1 consisting of Mariyappa, Udayashankar,
Jayashankar. During the lifetime of Mariyappa, there
was a partition but was effected only after his death
in the year 1982. Due to disruption of the joint
family status and by an arrangement, Udayashankar
Hindu Undivided Family
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RFA NOS.242 OF 2010, 328 OF 2010
started enjoying certain properties separately and
started his business. Udayashankar purchased
certain properties for the HUF consisting of
Udayashankar, his wife, Suman and Sachin.
6. Udayashankar became a drunkard and
started to lead a wayward life. He and his wife sold
certain properties for a lesser price. Suman is
unmarried and she is entitled to her share in the
properties. Hence, plaintiffs have filed the instant
suit.
7. Udayashankar filed his written statement
admitting the relationship between the parties and
also the partition. He contended inter alia that he
had purchased certain properties out of his business
income and sold them to repay certain debts
incurred by him. Out of the family income, he has
purchased a site in Kushalnagar and constructed a
RFA NO.501 OF 2010 C/W
RFA NOS.242 OF 2010, 328 OF 2010
house where he is residing with his wife and
children.
8. Third and fourth defendants have filed a
common written statement contending inter alia that
Udayashankar as a kartha of the HUF acquired
Sprinkler irrigation equipment from the Coffee Board
on hire purchase system, due to which he had
incurred a debt of Rs.1 lakh. Land in Sy.No.84
measuring 17.23 acres, belonging to the HUF was
not getting income due to scarcity of sufficient rains
and only a portion of the estate having coffee
plantation which was in deteriorating condition.
Since the Coffee Board was pressing for repayment
of debt, Udayashankar after consulting his wife
offered to sell the suit schedule property in discharge
of antecedent debt. Third defendant/
M.N.Cariappa agreed to purchase 8.67 acres of the
abovementioned land (suit schedule item No.1) for a
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RFA NOS.242 OF 2010, 328 OF 2010
consideration of Rs. 4,50,940/-. Out of the said sale
consideration, Cariappa discharged the debt incurred
by Udayashankar with Coffee Board and upon the
request of Udayashankar, a sum of Rs. 50,000/- was
invested in the name of Sachin, who was a minor at
that time. The entire consideration amount was paid
in parts and a sale deed dated 09.01.1987 was
registered.
9. Subsequently, Udayashankar approached
Cariappa offering to sell the remaining 8.56 acres of
land in Sy.No.84 (suit schedule item No.2) for a
consideration of Rs.5,00,000/-. Cariappa since did
not want the said land, he has nominated 4th
defendant/Gangavva Ganapathy to purchase the said
property for the offered sum. Gangavva Ganapathy
paid the sale consideration in parts and also invested
Rs.1,00,000/-in fixed deposit in the name of Sachin.
At the time of purchase, there was no appreciable
RFA NO.501 OF 2010 C/W
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income from the said lands and that Cariappa and
Gangavva have developed the said lands out of their
own funds of not less than Rs.20 lakhs and Rs.10
lakhs respectively.
10. Based on the above pleadings, Trial Court
framed the following issues:
1. Whether the plaintiffs prove that, they are
entitled for 1/3rd share each in the suit
properties?
2. Whether the plaintiffs prove that, the various
sale deeds referred in plaint para 9(2) are
liable for cancellation to the extent of 2/3rd
share of the plaintiffs?
prove that there was already a partition
affected in the family as stated in their
written statement?
4. Whether the 1st defendant proves that the
properties of Eralevalamudi village were
acquired by Sri Ramakrishna, Hegde, the
then Chief Minister in the name of 1st
defendant and he has sold it and he has
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nothing to do with the properties as stated in
para No.3.of. the written statement?
prove that they are the bonafide purchasers
of the property as contended in their written
statement?
6. Whether they further proves that the sale of
the properties in their favour was for the
legal necessity of the family?
prove that the suit is not maintainable as all
the properties are not included and the suit
for partition is not maintainable?
8. Whether the defendant Nos. 8 to 13 prove
that the suit is collusive one and filed at the
instance of defendant Nos. 1 and 2?
9. Whether the defendant Nos.8 to 12 prove
that they have improved the schedule item
Nos.8 to 16 by investment of huge amount?
10. Whether the defendant No.13 proves that he
is the owner of item No.2 in virtue of
settlement deed dated 12-07-1999?
11. Whether the suit is properly valued and
court-fee paid is sufficient?
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RFA NOS.242 OF 2010, 328 OF 2010
12. Whether suit is barred by limitation?
13. Whether the plaintiffs are entitled for current
and future mesne profits?
prove that, in view of settlement of earlier
suit bearing O.S.No.121/94 the plaintiffs are
not entitled for any relief in the present suit?
15. What order or decree?
Addl.Issues:-
1. Whether the defendants No.8 to 12 prove
that, the plaintiffs without seeking
cancellation of partition dated 24-06-1991,
present suit is not maintainable?
2. Whether the defendants No.8 to 12 prove
that, suit is not maintainable for non
including the properties as contended in para
No.14(b), 14(c) and 14(f) of their written
statement?
3. Whether the defendant Nos.8 to 12 further
proves that, suit is bad for non joinder of the
necessary parties as pleaded in para
No.14(d) of their written statement?
4. Whether the defendants No.8 to 12 further
prove that, the plaintiffs are estopped from
claiming that suit properties are joint family
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properties as pleaded at para No.14(c) of
their written statement?
11. In order to prove the above issues, on belf
of plaintiffs, two witnesses are examined as P.W.1
and P.W.2 and Exs.P1 to P87 came to be marked. On
behalf of the defendants, five witnesses are
examined as D.W.1 to D.W.5 and Ex. D1 to D40
partly in affirmative, issues No.3 and 13 in the
affirmative and issues No.4, 5 , 6, 7, 12 and 14 in
the negative, the Trial Court has decreed the suit in
favour of second plaintiff.
12. Shri Joshua Samuel, learned Advocate for
the appellants/LRs of defendants No.3, 4 and 13,
while praying to allow the appeals in RFA Nos.
328/2010 and 501/2010 mainly submitted that the
suit is barred by limitation and the conditions
necessary for sale of HUF property have been
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fulfilled. He also submitted that Pavan Kumar, son
of Jayashankar, had instituted a suit in O.S.No.
84/2004. Sale of item No.1 by Udayashankar in
favour of Cariappa has been held valid. An appeal
against the said order also came to be dismissed.
Second appeal is filed is pending before this Court.
13. Shri. T.A. Karumbaiah, for defendant No.5/
Leelamma Alexander, praying to allow the appeal in
RFA No. 242/2010 mainly submitted that she is a
bonafide purchaser. The alienation in her favour was
for legal necessity of the HUF. She appeared in the
suit, could not file the written statement as the case
was taken up for the disposal of court fee issue and
directed the plaintiff to pay the deficient court fee.
The Trial Court rejected the plaint for non-
compliance of court order regarding non payment of
court fee. The plaintiff has challenged the said order
in RFA No.744/1999, which was dismissed by this
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Court. The said order was assailed by the plaintiff
before the Hon'ble Apex Court in SLP. The SLP was
allowed, permitted the plaintiff make good of the
court fee and direction to the trial court to dispose of
the case on merits. Post remand the defendant No.5
did not receive any court notice to appear or to
instruct her Advocate to file the written statement
and to contest the suit. Under these circumstances,
she could not file her written statement and contest
the suit. It is further contended that the suit
schedule items No. 3 to 7 were sold to her not only
by Udayashankar, but also his mother Susheela Devi
and his brother Jaishankar. They have not been made
parties to the suit. In O.S. No.84/2004, though
defendant No.5 has filed her written statement, but it
was decided on the basis of findings recorded in this
suit where she is placed ex-parte. The suit id bad for
non-joinder of necessary parties and therefore, the
instant suit ought to have been dismissed.
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14. Shri.Venu Gopal, learned Counsel for
plaintiff No.2 in support of the impugned judgment
and decree submitted that there is no there is no
limitation to file partition suit. To challenge the
alienations made by the father, suit can be filed
within 12 years. The contention raised by Cariappa
and Gangavva that fixed deposits are opened in the
name of Sachin is not supported by evidence. The
contesting defendants have failed to prove that there
was a legal necessity to alienate the HUF properties.
There are other family debts which are elicited in the
evidence, there is no reference of such debts in the
sale deed shows that there was no legal necessity.
15. We have carefully considered rival
contentions and perused the records. On the basis of
the pleadings and material available on record, the
points that arise for our consideration are:
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(i) Whether defendant No.5 had an
opportunity to contest the suit post-remand
from the Hon'ble Apex Court?
(ii) Whether the claim against
defendant No.5 is hit by non-joinder of the
other vendors?
(iii) What is the effect of finding
recorded in O.S.No.84/2004 on this suit in
respect of defendant No.5?
(iv) Whether the impugned judgment
calls for our interference?
Reg. Point No.1:
16. It is pertinent to note that the Trial Court
has framed an issue regarding valuation and
recorded its finding on 11.08.1999 directing the
plaintiff to make good of the court fee. Since the
plaintiffs did not comply with it, the Trial Court by
order dated 15.10.1999 has rejected the plaint under
Order VII Rule 11 of CPC. The plaintiffs have
challenged the said order before this court in
R.F.A.No.744/1999. The said RFA came to be
dismissed. Aggrieved by the same, the plaintiffs
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have approached the Hon'ble Apex Court in
S.L.P.No.12566/2001. The Hon'ble Apex Court vide
order dated 04.10.2002 allowed the petition and
directed to restore the suit to the file of Trial Court
with an opportunity to the plaintiff to make good of
the short fall of the court fee and to decide the case
on merits. The Trial Court's order sheet did not point
out causing any notice to the defendants after
remand. The appearance of the Advocates before
rejection of the plaint has been continued.
17. It is pertinent to note that on 27.11.1995,
the case was posted for filing of the written
statement finally. On that day, the matter was
adjourned imposing cost of Rs.25/- for filing of the
written statement on 18.12.1995. On that day,
defendant Nos.3 and 4 have filed the written
statement and thereafter, the Trial Court without
considering whether defendant No.5 has to file the
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written statement or not, directly posted the case for
framing of the issues. Subsequently, the issue
regarding valuation has come up which went up to
the Hon'ble Apex Court.
18. It is the specific contention of the defendant
No.5 that she was not provided with any opportunity
to contest the suit by filing the written statement and
she has deprived of her right of contesting the
matter. The Trial Court in the impugned judgment
made a specific reference that since defendant No.5
has not filed the written statement, not participated
in the proceedings and contested the suit, recorded
its finding that the alienation made in favour of
defendant No.5 is not binding on the plaintiff No.2.
This finding is not recorded on merits, it is a default
finding against defendant No.5.
19. One S.J.Pavan Kumar, the son of brother of
defendant No.1 has filed a suit in O.S.No.84/2004
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before the court of Senior Civil Judge, Madikeri in
respect of item Nos.3 to 7 of the suit schedule
property. In the said suit, findings recorded are on
the basis of the finding recorded in O.S.No.120/1994
only. Though defendant No.5 has contested
O.S.No.84/2004 for the reason of default finding
recorded in O.S.No.120/1994, she was also
prevented to place her defence. Hence, the
contention of defendant No.5 that she was
sufficiently prevented from contesting both the suits
holds valid reason. Defendant No.5 being the
purchaser of item Nos.3 to 5, if no opportunity is
provided to put-forth her case, the finding recorded
against her shall be an exparte order and not the
order on merits. Hence, we are of the opinion that
defendant No.5 had no opportunity to contest this
suit. Accordingly, we answer point No.1.
RFA NO.501 OF 2010 C/W
RFA NOS.242 OF 2010, 328 OF 2010
Reg.Point No.2:
20. Ex.P87 is the sale deed executed in favour
of defendant No.5 in respect of item Nos.3 to 7 of the
suit schedule properties. On perusal of its recitals, it
is pertinent to note that it was executed by
defendant No.1, Jaishankar, brother of defendant
No.1 and Smt.Susheela Devi, mother of defendant
No.1. In O.S.No.84/2004, Jaishankar and
Smt.Susheela Devi both are made as defendant
Nos.1 and 2. Ex.P86 points out that it is a joint
alienation in favour of defendant No.5. The plaintiff
in the instant suit challenging the said joint alienation
without impleading S.M.Jaishankar and Susheela
Devi. Any finding recorded on Ex.P87 will prejudice
the defendant No.5. Hence, this suit is bad for non-
joinder of parties.
21. On perusal of the impugned judgment, the
Trial Court did not observe these aspects and has not
RFA NO.501 OF 2010 C/W
RFA NOS.242 OF 2010, 328 OF 2010
recorded any finding whether Susheela Devi and
S.M.Jaishankar are the necessary parties or not. The
evidence relied upon by the plaintiffs suggests that
they are necessary parties for consideration of the
issues, the Trial Court ought to have deferred the
judgment, directed the plaintiff to implead the
necessary parties, give an opportunity to them to say
on the sale deed and then ought to have decided the
case on merits. Hence, the finding recorded against
defendant No.5 is hit by non-joinder of necessary
parties. Accordingly, we answer point No.2.
Reg. Point No.3:
22. The copy of the judgment in
O.S.No.84/2004 is made available before this court.
The parties have not disputed the filing of the said
suit by the son of Jaishankar against the defendants
including defendant No.5. In the said judgment,
RFA NO.501 OF 2010 C/W
RFA NOS.242 OF 2010, 328 OF 2010
there is a negative finding recorded against
defendant No.5 referring to the finding recorded in
O.S.No.120/1994. There is no finding recorded
considering the facts, evidence pleaded by both the
parties in the said suit. In O.S.No.84/2004,
defendant No.5 has filed her written statement, the
issues have been framed and burden is placed on
defendant No.5 to prove the legal necessity. If
defendant No.5 is not provided an opportunity to
contest the instant suit, it will affect her right in the
instant suit and also in O.S.No.84/2004. Hence, the
finding recorded in O.S.No.84/2004 is prejudicing the
interest of defendant No.5. Accordingly, we answer
point No.3.
Reg.Point No.4:
23. We have carefully perused the impugned
judgment. Though there are three appeals,
defendant Nos.3, 4, 5 and 13 are sailing in a same
RFA NO.501 OF 2010 C/W
RFA NOS.242 OF 2010, 328 OF 2010
boat. Their contention is that, they have purchased
the property for bonafide reason and the alienation
made in their favour was for legal necessity. But for
non-participation of defendant No.5, it has prejudiced
the interest of all the parties. Hence, we refrain from
making any comment on the merit of the case in
respect of defendant Nos.3, 4 and 13, as the matter
has to go before the Trial Court for fresh
adjudication. Hence, the impugned judgment will not
stand to its reason and calls for interference. In the
result, the following:
ORDER
i) All three appeals are allowed.
ii) The impugned judgment and decree is
set aside.
iii) The matter is remanded to the Trial
Court to the stage of filing of the
written statement of defendant No.5;
RFA NO.501 OF 2010 C/W
RFA NOS.242 OF 2010, 328 OF 2010
iv) The Trial Court is directed to implead
Susheela Devi and Jaishankar as a
necessary party, secure their presence
after giving opportunity to the parties
to complete their pleading, permit
them to place their further evidence
and then decide the case on merits
uninfluenced by any of the
observations made hereinabove, in
accordance with law expeditiously;
v) Without further notice, the parties shall
appear before the Trial court on
22.01.2024.
Sd/-
JUDGE
Sd/-
JUDGE
KNM/-
CT:HS
