Karnataka High Court
Smt Hanumamma vs Sri T Mahesh Kumara on 19 December, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:46338
RFA No. 117 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO.117 OF 2016 (PAR/INJ)
BETWEEN:
1. SMT HANUMAMMA
W/O LATE SRI T THIMMAIAH
AGED ABOUT 62 YEARS
R/O VAGARAGERE VILLAGE
GIDDAGERE POST
YEDIYUR HOBLI, KUNIGAL TALUK
TUMKUR DISTRICT - 572 101.
2. SMT SHARADAMMA
W/O CHIKKA HANUMAIAH
AGED ABOUT 45 YEARS
R/A NO.3, MARUTHI NILAYA
SAPTAGIRI LAYOUT, SHETTIHALLI
OPP: HMS COLLEGE
TUMKUR - 572 101.
3. SMT YASHODAMMA
Digitally D/O LATE SRI T THIMMAIAH
signed by W/O KESHAVA MURTHY
VANDANA S AGED ABOUT 42 YEARS
Location: CORPORATION QUARTERS NO.3
HIGH AIRPORT ROAD, KODIHALLI
COURT OF
KARNATAKA BANGALORE-560 008.
4. SMT RAJESHWARI
W/O SURESH
AGED ABOUT 39 YEARS
NO.2462, HAL II STAGE
16TH 'C' MAIN, INDIRANAGAR
BANGALORE-560 038.
...APPELLANTS
(BY SRI. G S VENKAT SUBBA RAO, ADVOCATE)
-2-
NC: 2023:KHC:46338
RFA No. 117 of 2016
AND:
SRI T MAHESH KUMARA
S/O T. PUTTASWAMY
AGED ABOUT 35 YEARS
CORPORATION QUARTERS NO.3
AIRPORT ROAD, KODIHALLI
BANGALORE-560 008.
...RESPONDENT
(BY SRI. V. SHIVA REDDY., ADVOCATE)
THIS RFA IS FILED UNDER SEC.96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 31.10.2015 PASSED IN O.S
NO.4384/2008 ON THE FILE OF THE XXII ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT
FOR PARTITION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the defendants in O.S.No.4384/2008 is
directed against the impugned judgment and decree dated
31.10.2015 passed by the XXII Addl. City Civil & Sessions Judge,
Bengaluru, whereby the said suit filed by the respondent - plaintiff
against the appellants - defendants for partition and separate
possession of his alleged share in the suit schedule immovable
properties was decreed by the Trial Court.
2. Heard learned counsel for the appellants and learned
counsel for the respondent and perused the material on record.
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3. The material on record discloses that the appellants
are the wife and children of late Thimmaiah, who is said to have
expired on 06.09.2007. The respondent claiming to be the adopted
son of the said Thimmaiah instituted the aforesaid suit against the
appellants for partition and separate possession of his alleged
share in the suit schedule immovable properties. The said suit was
contested by the appellants - defendants, who specifically disputed
and denied the alleged adoption of the respondent by Thimmaiah
as well as the alleged relationship of the respondent with the
appellants and Thimmaiah. The Trial Court framed the following
issues:
(i) Whether the plaintiff proves that he is the
adopted son of defendant No.1 late Thimmaiah, as pleaded
in the plaint?
(ii) Whether the plaintiff proves that the suit
properties are the undivided properties of the plaintiff and
the defendants?
(iii) Whether the plaintiff has a share in suit
properties?
(iv) What Decree or Order?
4. Pursuant to framing of issues, the respondent
examined himself as PW1 and exhibits P1 to P6 were marked on
his behalf. The appellants - defendants examined appellant No.3
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as DW1 and exhibits D1 to D18 were marked on their behalf.
However, since DW1 did not tender herself for cross-examination
by the respondent - plaintiff, her evidence was not taken into
consideration by the Trial Court, which proceeded to accept the
evidence adduce by the respondent - plaintiff and decreed the suit
in his favour by passing the impugned judgment and decree which
is assailed in the present appeal.
5. In addition to reiterating the various contentions urged
in the memorandum of appeal and referring to the material on
record, learned counsel for the appellants submits that due to
bonafide reasons, unavoidable circumstance and sufficient cause,
the appellants were not in a position to tender DW1 (appellant
No.3) for cross-examination and they also could not adduce
additional oral or documentary evidence on their behalf. It was
also submitted that the Trial Court committed an error in failing to
appreciate that the respondent had not adduced any legal or
acceptable evidence to establish that he was the adopted son of
late Thimmaiah or his alleged relationship with the appellants and
in the light of the highly contradictory, inconsistent, discrepant and
inadmissible pleadings and evidence, the claim of the respondent
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was liable to be rejected. It was therefore submitted that one more
opportunity is required to be granted to the appellants to tender
DW1 for cross-examination and to adduce further evidence by
setting aside the impugned judgment and decree and remitting the
matter back to the Trial Court, for reconsideration afresh in
accordance with law.
6. Per contra, in addition to supporting the impugned
judgment and decree, learned counsel for the respondent invited
my attention to the applications - I.A.1/2023 and I.A.2/2023 filed by
the respondent under Order 41 Rule 27 CPC for permission to
adduce additional evidence. In this context, it is submitted on
instructions that the respondent does not have any objection or the
impugned judgment and decree to be set aside and the matter
remitted back to the Trial Court for reconsideration afresh, in
accordance with law subject to the condition that I.A.1/2023 and
I.A.2/2023 may be allowed and documents be received on record
as well as liberty may be reserved in favour of the respondent to
cross-examine DW1 and also adduce further defence evidence.
7. By way of reply, learned counsel for the appellants on
instructions submits that they dispute and deny the various
NC: 2023:KHC:46338
allegations and claims made in I.A.1/2023 and I.A.2/2023 and
additional evidence sought to be adduced by the respondent. It is
however submitted that liberty may be reserved in favour of the
appellants to cross-examine the respondent (PW1) further on the
existing evidence as well as the further evidence sought to be
adduce by the respondent along with I.A.1/2023 and I.A.2/2023 as
well as any other further evidence sought to be adduce by him.
8. The aforesaid facts and circumstances and the
material on record clearly indicate that both sides intend to adduce
further oral and documentary evidence in support of their
respective claims, including cross-examining the other party and
their witnesses and the aforesaid further evidence was not
available before the Trial Court at the time of passing the impugned
judgment and decree. Under these circumstances, in order to
provide one more opportunity to both sides to adduce further
evidence in support of their respective claims, without expressing
any opinion on the merits / demerits of the rival contentions, I deem
it just and appropriate to allow I.A.1/2023 and I.A.2/2023 filed by
the respondent and set aside the impugned judgment and decree
NC: 2023:KHC:46338
and remit the matter back to the Trial Court for reconsideration
afresh, in accordance with law by leaving open all contentions.
9. In the result, I pass the following:
ORDER
(i) The appeal is hereby allowed.
(ii) The impugned judgment and decree dated
31.10.2015 passed in O.S.No.4384/2008 by the XXII Addl.
City Civil & Sessions Judge, Bengaluru City, is hereby set
aside.
(iii) I.A.1/2023 and I.A.2/2023 filed by the
respondent is hereby allowed and the additional evidence
produced by the respondent is received on record. The
Registry is directed to transmit the said I.A.No.1/2023 and
I.A.2/2023 along with the additional evidence to the Trial
Court for consideration.
(iv) Both parties are permitted to adduce further oral
and documentary evidence in support of their respective
claims.
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(v) Liberty is also reserved in favour of both the
parties to cross-examine / further cross-examine PW1, DW1
and all other witnesses to be examined by both sides.
(vi) All rival contentions on all aspects of the matter
are kept open and no opinion is expressed on the same.
(vii) Parties undertake to appear before the Trial
Court on 22.01.2024.
Sd/-
JUDGE
SV
