Karnataka High Court
Smt Ramakka vs Govindaraju on 28 November, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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WP No. 14807 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 14807 OF 2020 (GM-CPC)
BETWEEN:
1. SMT. RAMAKKA
W/O LATE H. MAHESHWARAPPA
AGED ABOUT 77 YEARS,
2. SRI M. RAVISHANKAR
S/O LATE H. MAHESHWARAPPA
AGED ABOUT 44 YEARS,
3. SRI M. MANJUNATH
S/O LATE H. MAHESHWARAPPA
AGED ABOUT 40 YEARS,
Digitally signed by
BS RAVIKUMAR
Location: HIGH 4. SRI M. HANUMAIAH
COURT OF S/O LATE H. MAHESHWARAPPA
KARNATAKA
AGED ABOUT 38 YEARS,
5. SMT. SUMITHRA
D/O LATE H. MAHESHWARAPPA
AGED ABOUT 50 YEARS,
6. M. MEENA
D/O LATE H. MAHESHWARAPPA
AGED ABOUT 46 YEARS,
7. SMT. BAGHYAMMA
D/O LATE H. MAHESHWARAPPA
AGED ABOUT 41 YEARS,
8. SMT. MUNICHOWDAMMA M.
D/O LATE H. MAHESHWARAPPA
AGED ABOUT 36 YEARS,
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WP No. 14807 of 2020
PETITIONERS NO.1 TO 8 ARE
R/AT NO.551, PEENYA VILLAGE,
PEENYA 1ST STAGE, II BLOCK,
BANGALORE-560058.
...PETITIONERS
(BY SRI. NARASIMHAIAH K., ADVOCATE)
AND:
1. GOVINDARAJU
AGED ABOUT 51 YEARS,
S/O LATE GANGAMMA
2. SREENIVAS
AGED ABOUT 48 YEARS,
S/O LATE GANGAMMA
3. VENKATARAMANNA
AGED ABOUT 47 YEARS,
S/O LATE GANGAMMA
4. RAMESH
AGED ABOUT 45 YEARS,
S/O LATE GANGAMMA
5. SOMASHEKAR
AGED ABOUT 43 YEARS,
S/O LATE GANGAMMA
6. MUNIYAMMA
AGED ABOUT 41 YEARS,
D/O LATE GANGAMMA
7. MANGALA AGED ABOUT 39 YEARS,
D/O LATE GANGAMMA
ALL ARE R/AT NO.552, PEENYA VILLAGE,
PEENYA 1ST STAGE, II BLOCK,
BANGALORE-560058.
...RESPONDENTS
(BY SMT. ANU CHENGAPPA P., ADVOCATE FOR R1 TO R7)
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WP No. 14807 of 2020
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DTD: 27.01.2020 PASSED BY THE HON'BLE
V ADDL CITY CIVIL AND SESSIONS JUDGE, BANGALORE IN P
AND SC NO.123/2012 VIDE ANNX-A IN IA NO.2/18 AND IA
NO.5/19 AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners in P & SC No.123/2012 on the file of
V Additional City Civil & Sessions Judge, Bengaluru are
before this Court being aggrieved by the order dated
27.01.2020 passed on I.A.No.2 and I.A.No.5.
2. Heard the learned counsel Sri.Narasimhaiah K.,
for the petitioners and learned counsel Smt.Anu
Chengappa P., for the respondents and perused the
petition papers.
3. Learned counsel for the petitioners would
submit that the petitioners initiated the proceedings in P &
SC No.123/2012 under Section 372 of Hindu Succession
Act, 1956 praying to grant succession certificate in favour
of the petitioners as they are the legal heirs of deceased
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late H. Maheshwarappa in respect of the P & SC schedule
properties. When the P & SC was at the stage of PW-1's
evidence, the petitioners filed I.A.Nos.2 & 5 under Section
40 and 44 of Evidence Act read with Section 144 and
Section 151 of CPC seeking to convert P & SC as original
Suit and to reopen O.S.No.815/1982 disposed of on
10.09.2004 which is confirmed in RFA No.1234/2004
disposed of on 15.09.2010.
4. Learned counsel for the petitioners would
submit that the trial Court committed error in dismissing
both I.A.Nos.2 and 5. Learned counsel would submit that
the petitioners have right over the suit schedule property
being the legal heirs of H.Maheshwarappa, the schedule
properties are the joint family properties. It is further
contended that Smt.Chowdamma has no right to execute
the Will dated 15.11.1979 in respect of the joint family
properties in favour of the legal representatives of
Smt.Gangamma It is further submitted that the properties
were originally belonged to Pannamadli Choudappa, the
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great grandfather of the petitioners, thus, learned counsel
would submit that the trial Court while considering
I.A.Nos.2 and 5 failed to take note of the contentions of
the petitioners and erroneously rejected I.A.Nos.2 and 5,
thus learned counsel would pray for allowing both the
I.A.Nos.2 and 5 by allowing the writ petition.
5. Per contra, learned counsel for the respondents
would submit that father of the petitioners had filed suit in
O.S.No.815/1982 for declaration of title, possession and
permanent injunction in respect of the suit schedule
properties. In the said suit, the father of the petitioners
failed to prove his title and also possession over the suit
schedule properties. Thus, the suit was dismissed and
against which the father of the petitioners filed RFA
No.1234/2004 which was also dismissed by the judgment
dated 15.09.2010 confirming the judgment and decree
passed by the trial Court in O.S.No.815/1982. Thus, it is
submitted that the judgment and decree passed in
O.S.No.815/1982 has become final. Learned counsel would
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submit that the petitioners, who claim through
Maheshwrappa, could not have filed P & SC and also they
could not have sought converting P & SC to Original Suit
and also to reopen O.S.No.815/1982. Learned counsel
would submit that the prayer made in the applications are
abuse of process of the Court, therefore, prays for
dismissal of the writ petition.
6. Having heard the learned counsel for the parties
and on perusal the petition papers, I am of view that,
petitioners would not be entitled for any relief and the trial
Court is justified in rejecting I.A.Nos.2 and 5 filed by the
petitioners to convert the P & SC to original suit and to
reopen O.S.No.815/1982.
7. Petitioners claim their right over the suit
schedule properties through H.Maheshwarappa.
H.Maheshwarappa had filed O.S.No.815/1982 with a
prayer for judgment and decree for declaration of title,
possession and permanent injunction against the same
suit schedule properties. The trial Court raised as many as
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12 issues. The relevant issues, which are germane for the
present writ petition, are issue Nos.3, 10, 11 & 12, which
reads as follows:
"3) Whether he proves his title to the suit
properties?
10) Whether the first defendant proves that she
was adopted by Smt.Chowdamma and
Sri.Chowdappa?
11) Whether the plaintiff proves that he is the
sole surviving co-parcener of the joint
family of Chowdappa and Chowdamma?
12) Whether the defendants prove that
Chowdamma has bequeathed the
properties in favour of the first defendant
and her children under the Will dated
15.11.1979?"
8. Issue Nos.3, 10, 11 & 12 are held against
Sri.H.Maheshwarappa, the husband of petitioner No.1 and
father of other petitioners. H.Maheshwarappa had failed to
prove his title over the suit schedule properties and also
failed to prove that he is the sole surviving coparcener of
joint family property of Sri.Chowdappa and
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Smt.Chowdamma. RFA No.1234/2004 was filed against
the said judgment and decree dated 10.09.2004 passed in
O.S.No.815/1982 and the same was dismissed confirming
by the judgment and decree dated 15.09.2010. Thus, the
judgment and decree passed in O.S.No.815/1982 has
become final.
9. Mere making of averment that the judgment
and decree passed in O.S.No.815/1982 is the result of
fraud and collusion would not be sufficient to hold that the
judgment and decree is based on fraud and collusion, it
requires cogent evidence/material. The petitioners ought
to have prima-facie established that the judgment and
decree passed in O.S.No.815/1982 is the result of fraud
and collusion by producing any piece of material. In the
absence of any material, only alleging that it is fraud and
collusion, the petitioners would not be entitled for the
relief as prayed for in I.A.Nos.2 and 5.
10. The Hon'ble Apex Court, in the case of Union
of India and another vs. K.C.Sharma and Company
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and others reported in (2020) 15 SCC 209, has
observed that fraud has to be pleaded and proved. More
so, when a judgment and decree passed earlier by the
competent Court is questioned, it is necessary to plead
alleged fraud by necessary particulars and same has to be
proved by cogent evidence.
11. Thus, I do not find any merit in the writ
petition, accordingly, the petition stands rejected.
Sd/-
JUDGE
BSR
