Karnataka High Court
Sri N Manju vs Sri Narayana on 14 June, 2023
Bench: H T Prasad
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NC: 2023:KHC:20458
RFA No. 796 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
REGULAR FIRST APPEAL NO. 796 OF 2008 (PAR)
BETWEEN:
SRI N MANJU
AGED ABOUT 35 YEARS
S/O SRI NARAYANA
R/AT NO 22, NATARAJA BUILDING
BTS LAYOUT MAIN ROAD
ARAKERE VILLAGE
BANNERGHATTA ROAD
BANGALORE-560076.
...APPELLANT
(BY SRI. K C SHANTA KUMAR.,ADVOCATE
SRI. K.S VENKATARAMANA, ADVOCATE)
AND:
1. SRI NARAYANA
Digitally signed AGED ABOUT 60 YEARS
by R/O BILAKAHALLI, BEGUR HOBLI
DHANALAKSHMI
MURTHY BANGALORE SOUTH.
SINCE DECEASED LR'S.
Location: High
Court of
Karnataka 1a. SMT. MARAKKA
W/O LATE NARAYANA
AGED ABOUT 41 YEARS
R/AT NO.22, NATARAJA BUILDING
BTS LAYOUT MAIN ROAD
ARAKERE VILLAGE
BANNERGHATTA ROAD
BANGALORE-560076.
1b. SMT. SARASAMMA
W/O LATE NARAYANA
-2-
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RFA No. 796 of 2008
AGED ABOUT 36 YEARS.
1c. SRI. CHANDRASHEKARA
AGED ABOUT 14 YEARS
S/O LATE NARAYANA
BEING MINOR REPRESENTED
BY NATURAL GUARDIAN MOTHER
SMT. SARASAMMA.
1d. SMT. MANJULA @ VANAJAKSHI
AGED ABOUT 20 YEARS
D/O LATE NARAYANA.
1b, 1c & 1d ARE R/AT
NO.192, BELEKHALLI LAYOUT
BANNERGHATTA ROAD
BANGALORE-560 076.
2. SRI VEMANNA
AGED ABOUT 43 YEARS
S/O LATE M PUTTAIAH
R/O NO 152, LALBAGH FORT ROAD
DODDAMAVALLI, BANGALORE.
3. SRI B S NAGARAJ
AGED ABOUT 39 YEARS
S/O SRI B V SAMPATH
R/O NO 16, 28 CROSS
GEETHA COLONY, 4 BLOCK
JAYANAGAR, BANGALORE 11.
...RESPONDENTS
(BY SRI.CHANDRASHEKARA S., ADVOCATE
SRI. VIVEK HOLLA, ADVOCATE FOR R2 & R3:
NOTICE TO R1(D) SERVED & UNREPRESENTED)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF THE CPC AGAINST THE JUDGEMENT AND DECREE
DATED: 31.03.08 PASSED IN OS NO. 4607/06 ON THE FILE OF
THE XVIII ADDL. CITY CIVIL JUDGE, (CCH.NO.32),
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RFA No. 796 of 2008
BANGALORE, DISMISSING THE SUIT FOR PARTITION AND
SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Order XVI Rule 1 read with Section
96 of the CPC is filed by the plaintiff challenging the
judgment and decree dated 31.03.2008 passed by the
XVIII Additional City Civil Judge at (CCH No.32),
Benglauru City in O.S.No.4607/2006 whereby the suit filed
by the plaintiff has been dismissed.
2. For the sake of the convenience, the parties are
referred to as per their ranking before the Trial Court.
3. The case of the plaintiff is that the plaintiff is
the son of defendant No.1. Defendant No.1 had inherited
the suit schedule property from his ancestors. The plaintiff
has the legitimate share in the suit schedule property. To
denial the plaintiff's share, defendant No.1 has sold the
suit schedule property to defendant Nos.2 and 3. The
plaintiff has demanded the partition of the suit schedule
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RFA No. 796 of 2008
property with defendant No.1. When defendant No.1
refused to give share of the plaintiff, the plaintiff has filed
the suit for partition and separate possession.
were served and unrepresented and they have placed
ex-parte.
5. On the basis of pleadings of the parties, the
trial Court has framed the following point for
consideration:
"Whether plaintiff is entitled for the relief
claimed in the suit?"
6. To prove the case, the plaintiff examined
himself as PW-1 and produced 4 documents. Defendants
neither examined any witness nor produced any
documents. On the basis of oral and documentary
evidence, the trial Court has dismissed the suit. Being
aggrieved by the same, the plaintiff is before this Court in
this appeal.
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7. The learned counsel appearing for the
appellant/plaintiff has contended that defendant No.1 has
executed a Sale Deed dated 04.08.2003 behind the back
of plaintiff and it is not for the benefit of plaintiff or family
necessity. The Sale Deed dated 04.08.2003 is not binding
on the plaintiff. The trial Court has erred in holding that
the sale is for the benefit of plaintiff and the other family
members. The respondents have not appeared before the
trial Court. First time, they have appeared before this
Court and produced agreement of sale and General Power
of Attorney which are not registered. He further
contended that in those documents, the signatures of the
plaintiff has been forged and the same has been disputed
by the plaintiff. Hence, he sought for allowing the appeal.
8. Per contra, learned counsel for the
respondents/defendants has contended that the plaintiff as
well as his father has executed an agreement of sale after
receiving the sale consideration amount and they have
also executed the GPA. On the basis of the documents, the
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Sale Deed has been registered. Since the property has
been sold for the benefit of the plaintiff as well as the
family members, the trial Court has rightly rejected the
suit filed by the plaintiff.
9. Heard the learned counsel for the parties.
Perused the judgment and decree and also original
records.
10. The point that arises for consideration in this
appeal is as follows:
"Whether the judgment and decree passed by
the trial Court is erroneous, arbitrary and does it
calls for any interference by this Court."
11. It is not in dispute that defendant No.1 is the
father of the plaintiff. The suit schedule property is an
ancestral property. Plaintiff No.1 has inherited the
property from their ancestor. The suit schedule property
was allotted to the share of defendant No.1 in the partition
deed dated 10.01.2003. Further case of the plaintiff that
the Sale Deed executed by plaintiff No.1 in favour of
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defendant Nos.2 and 3 is behind the back of plaintiff and
the same is not for the benefit of the plaintiff and his
family members.
12. Before the trial Court, defendant Nos.2 and 3
has been served and unrepresented. Defendant Nos.2 and
3 have appeared before this Court and filed the objection
and produced the document to show that there is an
agreement of sale executed by the plaintiff as well as the
father of defendant No.1. The plaintiff's father is also
executed a GPA. This document has been produced first
time before this Court. Learned counsel for the plaintiff
has disputed the same and he has also disputed the
signature of the plaintiff.
Under this circumstance and in the interest of justice,
I am of the opinion that the matter requires to be remitted
back to the trial Court for fresh consideration.
Accordingly, the appeal is allowed. The impugned
judgment passed by the trial Court is set-aside. The
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matter is remitted back to the trial Court for fresh
consideration.
Defendants are permitted to file necessary written
statement and the plaintiff is also at liberty to file
necessary application for amendment of plaint, if law
permits.
The parties are at liberty to adduce additional
evidence and produce additional documents to establish
their case.
The trial Court is directed to reconsider the matter
afresh, in accordance with law.
Sd/-
JUDGE
HA
