Karnataka High Court
Smt. Devi vs Smt. V. Anusuyadevi on 23 November, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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RFA No. 542 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO. 542 OF 2017 (PAR)
BETWEEN:
SMT. DEVI
D/O LATE KANTARAJ,
W/O C NAGARAJU,
AGED ABOUT 56 YEARS,
R/AT NO.1, VENKATASWAMY LAYOUT,
OPP. BANASAWADI RAILWAY STATION,
LINGARAJAPURAM EXTENSION,
BENGALURU - 560 084.
... APPELLANT
(BY SRI. A.C. BALARAJ, ADVOCATE)
AND:
Digitally 1. SMT. V. ANUSUYADEVI
signed by
VANDANA S W/O LATE KANTHARAJ
Location: SINCE DECEASED
HIGH REPRESENTED BY LRS
COURT OF
KARNATAKA
1(a) SMT. DEVI
D/O LATE KANTHARAJ
W/O C. NAGARAJU
AGED ABOUT 56 YEARS
R/AT NO.1, VENKATASWAMY LAYOUT
OPP. BANASAWADI RAILWAY STATION
LINGARAJAPURAM EXTENSION
BENGALURU - 560 084.
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RFA No. 542 of 2017
1(b) SMT. HAMSA
AGED ABOUT 62 YEARS,
D/O LATE KANTHARAJ,
W/O R NAGARAJ,
1(c) SRI K. UMAPATHI
AGED ABOUT 59 YEARS
S/O LATE KANTHARAJ
1(d) SMT. MALA
AGED ABOUT 37 YEARS
D/O LATE RAMESH
1(e) KUM. SANDHYA
AGED ABOUT 16 YEARS
D/O LATE RAMESH
SINCE R1(e) IS MINOR, DULY
REPRESENTED BY SMT. MALA
1(f) SRI PRASHANTH
AGED ABOUT 24 YEARS
S/O LATE RAMESH
1(g) SRI MANOJ
AGED ABOUT 22 YEARS
S/O LATE RAMESH
1(h) SMT. SUDHA
AGED ABOUT 58 YEARS
D/O LATE KANTHARAJ
ALL ARE RESIDING AT NO.1,
VENKATASWAMY LAYOUT,
OPP. BANASWADI RAILWAY STATION,
-3-
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RFA No. 542 of 2017
LINGARAJAPURAM EXTENSION,
BENGALURU - 560 084.
2. SMT. HAMSA
AGED ABOUT 62 YEARS
D/O LATE KANTHARAJ
W/O R. NAGARAJ
3. SRI K UMAPATHI
AGED ABOUT 59 YEARS,
S/O LATE KANTHARAJ,
4. SRI RAMESH
SINCE DECEASED BY HIS LRS
4(a) SMT. MALA
AGED ABOUT 37 YEARS,
W/O LATE RAMESH,
4(b) KUM. SANDHYA
AGED ABOUT 16 YEARS,
D/O LATE RAMESH
REP. BY SMT. MALA LR4(a)
4(c) SRI PRASANTH
AGED ABOUT 24 YEARS
S/O LATE RAMESH
4(d) SRI MANOJ
AGED ABOUT 22 YEARS
S/O LATE RAMESH
5. SMT. SUDHA
AGED ABOUT 58 YEARS
D/O LATE KANTHARAJ
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RFA No. 542 of 2017
2 TO 5 ARE RESIDING AT NO.1,
VENKATASWAMY LAYOUT,
OPP. BANASWADI RAILWAY STATION,
LINGARAJAPURAM EXTENSION,
BENGALURU - 560 084.
... RESPONDENTS
(BY SRI. SKANDA KUMAR, ADVOCATE FOR
M/S. LEGAL AXIS, FOR R1 (b), (c), (f), (g) & (h);
R1(a), R1(d), R2, R3, R4(a), R4(c),
R4(d), R5 ARE SERVED AND UNREPRESENTED;
R1(e) & R4(b) ARE MINORS AND
REPRESENTED BY R1(d) & R4(a) RESPECTIVELY)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
28.01.2017 PASSED IN OS.NO.4288/2005 ON THE FILE OF THE
XXII ADDL. CITY CIVIL AND SESSIONS JUDGE BENGALURU,
DISMISSING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the unsuccessful plaintiff in
O.S.No.4288/2005 is directed against the impugned
judgment and decree dated 28.01.2017 passed by the
XXII Additional City Civil & Sessions Judge, Bangalore,
whereby the said suit for partition and separate possession
filed by the appellant/plaintiff against the respondents/
defendants was dismissed by the trial court.
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2. The material on record discloses that the
appellant/plaintiff instituted the aforesaid suit against her
mother Late Anusuyadevi and her sisters for partition and
separate possession of her alleged share in the suit
schedule properties. The said suit having been contested
by the respondents/defendants, the trial court proceeded
to frame the following issues:
1) Whether the plaintiff proves that the suit
schedule property is the joint family property of
herself and the defendants?
2) Whether the plaintiff proves that the
plaintiff and defendants are in joint possession
of the same ?
3) Whether the plaintiff proves that she is
entitled for 1/6th share in the suit schedule
property?
4) Whether the plaintiff proves that she also
had contributed to the development and
improvement of the suit schedule property?
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5) Whether the defendants prove that the
suit schedule property was the self acquired
property of Venkataswamy Naidu and the
mother of the 1st defendant ?
6) Whether the defendants prove that
Venkataswamy Naidu donated the said property
in favour of the 1st defendant by means of gift
deed dated 11.10.1951 ?
7) Whether there should be an order for an
enquiry into mesne profits under Order 20 Rule
12 CPC ?
8) What Decree or Order ?
3. The plaintiff examined herself as PW.1 and
documents as per Ex.P1 to P12 were marked on her
behalf. The defendants examined themselves as DW.1 to
DW.5 and documents as per Ex.D1 to D52 were marked
on their behalf.
4. After hearing the parties, the trial court rejected
the claim of the appellant/plaintiff and upheld the claim of
the respondents/defendants and proceeded to pass the
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judgment and decree dismissing the suit, aggrieved by
which the appellant is before this court by way of present
appeal.
5. During the pendency of the present appeal, the
appellant/plaintiff has filed an application I.A.No.3/2022
under Order VI Rule 17 CPC seeking amendment and the
said application has been allowed vide order dated
23.11.2022 and the appellant has been permitted to
amend the plaint. Accordingly, the amended plaint is filed
by the appellant/plaintiff. Learned counsel for the
respondents/defendants submit that he would file
additional written statement to the amended plaint.
6. The appellant/plaintiff has filed one more
application I.A.No.4/2022 under Order XXXXI Rule 27 r/w
151 CPC, to permit the appellant to produce additional
documents. Though the said application is opposed by the
respondents/defendants who would dispute and deny such
documents, a perusal of the said documents will indicate
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that the same are relevant and necessary for the purpose
of adjudication of controversy involved in this appeal.
7. Under these circumstances, though several
contentions have been urged by both sides in support of
their respective claims, with the consent of the learned
counsel for both the appellant and the respondents,
without expressing any opinion on the merits and
de-merits of the rival contentions and in order to provide
an opportunity to both sides to agitate their respective
claims, I deem it appropriate to allow I.A.No.4/2022 and
consequently set aside the impugned judgment and decree
and remit the matter back to the trial Court for
reconsideration afresh in accordance with law by leaving
open all contentions to be decided by the trial Court.
9. In the result, I pass the following:-
ORDER
(i) Appeal is hereby allowed.
(ii) The impugned judgment and decree
dated 28.01.2017 passed in
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O.S.No.4288/2005 by the XXII Addl.
City Civil and Sessions Judge, (CCH-7),
Bengaluru is hereby set aside. The
matter is remitted back to the trial Court
for reconsideration afresh in accordance
with law.
(iii) Liberty is reserved in favour of
respondents/defendants to file additional
written statement to the amended
plaint.
(iv) I.A.No.4/2022 filed by the
appellant is allowed. The documents
produced along with the same are
received on record.
(v) Registry is directed to transmit
I.A.No.4/2022 and also the
accompanying documents to the trial
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court for consideration in accordance
with law.
(vi) Liberty is reserved in favour of the
appellant and respondents to adduce
additional oral/ documentary evidence in
support of their respective claims and
also cross-examine the other parties and
their witnesses.
(vii) All rival contentions on all aspects of the
matter are kept open and no opinion is
expressed on the same.
(viii)The parties undertake to appear before
the trial Court on 18.12.2023 without
awaiting further notice from the trial
Court.
(ix) Having regard to the fact that the suit is
of the year 2005, the Trial Court is
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directed to dispose off the suit as
expeditiously as possible.
Sd/-
JUDGE
NP
