Karnataka High Court
Sri R. Rakesh @ Lepakshaiah @ ... vs Smt. Chandrakala on 5 October, 2023
Bench: H.P.Sandesh
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RSA No. 470 of 2021
C/W RSA No. 1769 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 470 OF 2021 (PAR)
C/W
REGULAR SECOND APPEAL NO. 1769 OF 2019(PAR)
IN R.S.A.NO.470/2021:
BETWEEN:
1. SMT. S. CHANDRAKALA
D/O LATE SIDDALINGAIAH,
C/O A.N. PRAKASH,
AGED ABOUT 45 YEARS,
R/AT DOOR NO.651,
IN FRONT OF ASHWTHAKATTI,
NAGANNA PLAYA ROAD,
TUDA LAY OUT SIRA GATE,
TUMAKURU-572 106.
2. SMT. S.VANITHA
Digitally signed
by SHARANYA T D/O LATE SIDDALINGAIAH,
Location: HIGH AGED ABOUT 43 YEARS,
COURT OF R/AT MADANAYAKANAHALLLLI,
KARNATAKA
KUDUGERE MAIN ROAD,
BENGALURU-560 123.
...APPELLANTS
(BY SRI BHANU PRAKASH H.V. &
SRI MALLAHA RAO, ADVOCATES)
AND:
1. SMT. SHIVAMMA
W/O LATE SIDDALINGAIAH,
AGED AOUT 66 YEARS,
R/AT GARDEN HOUSE
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RSA No. 470 of 2021
C/W RSA No. 1769 of 2019
(TENGINA THOTADHA MANE)
HOSAHALLI, DIBBUR POST,
TUMAKURU-572106.
2. SMT. VASANTHA
W/O LATE RAVIKUMAR,
AGED ABOUT 36 YEARS,
R/AT SITE NO 15 AND 17,
KHATHA NO.4339, 3750,
MAHALLAXMI NAGARA,
GUBBI TOWN,
GUBBI TALUK 572216,
TUMAKURU DISTRICT.
3. SRI JAGADEESHA
S/O LATE SIDDALINGAIAH,
AGED ABOUT 35 YEARS,
R/AT HOSAHALI VILLAGE,
TUMAKURU KASABA HOBLI,
TUMAKURU TALUK.
4. SRI LEPAKSHAIAH
S/O LATE RAVIKUMAR,
AGED ABOUT MAJOR,
R/AT MUDIGERE VILLAGE,
KASABA HOBLI,
M.G. PATTANA POST,
GUBBI TALUK.
5. SRI S. THIMMAIAH
S/O SEENAPPA,
AGED ABOUT 40 YEARS,
R/AT THIPPURAMMA PALYA,
KASABA HOBLI,
OORKERE POST,
TUMAKURU TALUK.
6. THE MANAGER
TGMC CO-OP. BANK,
J.C. ROAD,
TUMAKURU.
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RSA No. 470 of 2021
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7. THE MANAGER
MAHATMA GANDHI CREDIT
CO-OPERATIVE BANK, MANDIPET,
TUMAKURU.
8. THE MANAGER
CANARA BANK,
AHSOKA ROAD,
TUMAKURU.
...RESPONDENTS
(BY SRI R. JAGADEESH PRASAD, ADVOCATE FOR R1;
SRI M.CHAMARAJ, ADVOCATE FOR R2 AND R3;
SRI V.B.SIDDARAMAIAH, ADVOCATE FOR R2 AND R4;
SRI M.N.MADHUSUDHAN, ADVOCATE FOR R5;
SRI T.BASAVARAJ, ADVOCATE FOR R6;
R7 AND R8 ARE SERVED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AN DECREE DATED 02.12.2019 PASSED IN
R.A.NO.03/2014 ON THE FILE OF THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, TUMAKURU, PARTLY
ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AN
DECREE DATED 23.10.2013 PASSED IN O.S.NO.8/2000 ON
THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE,
TUMAKURU.
IN R.S.A.NO.1769/2019:
BETWEEN:
1. SRI R. RAKESH @ LEPAKSHAIAH
@ LEPAKSHI
S/O LATE RAVIKUMAR,
AGED ABOUT 21 YEARS,
R/O. MUDIGERE, KASABA HOBLI,
M.G.PATTNA POST, GUBBI TALUK,
TUMAKURU DISTRICT-572 216. ...APPELLANT
(BY V.B.SIDDARAMAIAH, ADVOCATES)
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AND:
1. SMT.CHANDRAKALA
D/O LATE SIDDALINGAIAH
W/O VISHWANATHA,
AGED ABOUT 44 YEARS,
R/O HOUSING BOARD,
ARALIMARADA PALYA,
TUMAKURU-572 105
2. SMT.VANITHA
D/O LATE SIDDALINGAIAH,
W/O PUTTARAJU,
AGED ABOUT 42 YEARS,
R/O BENGALURU,
C/O CHANDRAKALA,
HOUSING BOARD,
ARALIMARADA PALYA,
TUMAKURU-572 105
3. SMT.SHIVAMMA
W/O LATE SIDDALINGAIAH
AGED ABOUT 69 YEARS,
R/O HOSAHALLI -572 105
TUMAKURU KASABA
TUMAKURU TALUK.
4. SRI. JAGADESHA
S/O LATE SIDDALINGAIAH
AGED ABOUT 40 YEARS
R/O HOSAHALLI-572 105
TUMAKURU KASABA
TUMAKURU TALUK
5. SRI.S.THIMMAIAH
S/O SEENAPPA
AGED ABOUT 45 YEARS,
R/O THIPPURAMMA PALYA,
KASABA HOBLI, OORKERE POST,
TUMAKURU TALUK-572 105
6. THE MANAGER
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TGMC CO-OP. BANK
J.C.ROAD-572101
TUMAKURU.
7. THE MANAGER
MAHATMA GANDHI CREDIT
CO-OPERATIVE BANK, MANDIPT,
TUMAKURU-572 101
8. THE MANAGER
CANARA BANK
ASHOKA ROAD-572 101
TUMAKURU.
9. SMT.VASANTHA
W/O LATE RAVIKUMAR,
AGED ABOUT 38 YEARS,
R/O BEHIND CHIDAMBARA ASHARAMA,
GUBBI TOWN-572216
GUBBI TALUK,
TUMAKURU DISTRICT. ...RESPONDENTS
(BY SRI H.V.BHANU PRAKASH, ADVOCATE FOR R1 & R2;
SRI R. JAGADEESH PRASAD, ADVOCATE FOR R3;
SRI M.N.MADHUSUDHAN, ADVOCATE FOR R5;
SRI T.BASAVARAJ, ADVOCATE FOR R6;
SRI M.CHAMARAJ, ADVOCATE FOR R4 AND R9;
R7 AND R8 ARE SERVED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AN DECREE DATED 02.12.2019 PASSED IN
R.A.NO.03/2014 ON THE FILE OF THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, TUMAKURU, PARTLY
ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AN
DECREE DATED 23.10.2013 PASSED IN O.S.NO.8/2000 ON
THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND CJM
AT TUMAKURU.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Heard the appellants' counsel in R.S.A.No.470/2021 and
in R.S.A.No.1769/2019 and also the counsel appearing for the
respondents in both the appeals.
2. The counsel for the appellants in
R.S.A.No.470/2021 would vehemently contend that the First
Appellate Court committed an error in modifying the share
granted by the Trial Court and Trial Court granted 1/5th share
and the same is modified as 6/25 share and the same is
erroneous and counsel also filed additional documents that the
property is purchased by one Siddalingaha who is father of the
plaintiffs and defendants in the year 1973 and ought not to
have modified the share as 6/25 instead of 1/5 and hence it
requires framing of substantial questions of law and to consider
I.A.No.2/2021.
3. Per contra, the counsel appearing for the appellant
in R.S.A.No.1769/2019 would vehemently contend that
appellant was not arrayed as plaintiff in the original suit and
subsequently he has been impleaded as defendant No.7 and
the natural guardian though took the notice, did not engage the
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counsel and Trial Court has not appointed any guardian to
protect the interest of the minor and also not determined any
share in respect of the appellant and also counsel would
vehemently contend that cross appeal was filed before the First
Appellate Court making payment of court fee and the First
Appellate Court while disposing of the R.A.No.3/2014 not
formulated any point for consideration with regard to the cross
objection filed by the appellant and committed an error and
hence this Court has to frame substantial questions of law to
that effect.
4. The counsel for respondent No.1 would vehemently
contend that respondent No.1 is aged more than 80 years and
she is bed ridden and suit is of the year 2000 and appeal is of
the year 2014 and she is also entitled for a share in the
property and share has been granted, but respondent No.1 is
unable to enjoy the fruits of the decree and hence, dismissed
both the appeals.
5. Having heard the respective counsels for the
appellants and also counsel for the respondents it is not in
dispute that suit is filed for the relief of partition and separate
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possession contending that property belongs to the family and
all of them are entitled for a share. The Trial Court granted
1/5th share in favour of the plaintiffs and defendants and
though counsel for the appellant in R.S.A.No.1769/2019
contend that the share of the minor appellant has not been
determined and the very finding of the Trial Court is very clear
that 1/5th share each is allotted in favour of the plaintiffs and
also said Siddalingaiah left his wife and four children and
granted 1/5th share is properly allocated by the Trial Court.
However, it is the contention of the appellant in
R.S.A.No.1769/2019 that minor son's interest is not protected
and the said contention cannot be accepted for the reason that
the minor appellant and also his mother represent the share of
their father Ravishankar and their share is also determined.
However, it is the contention of the appellant's counsel in
R.S.A.No.1769/2019 that counter claim is also filed in respect
of item No.1 of 'B' schedule property and no share was granted
in respect of item No.1 of 'B' schedule property and also the
wife of said Ravishankar has also filed an appeal before the
First Appellate Court and having perused the judgment and
decree of the First Appellate Court, when the counter claim is
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filed by the appellant in R.S.A.No.1769/2019 whether he is
entitled or not, ought to have been answered the counter claim
and on perusal of the judgment of the First Appellate Court,
point for consideration has not been framed by the First
Appellate Court whether counter claim has to be allowed or
rejected and no finding is given and hence, there is force in the
contention of the counsel appearing for the appellant in
R.S.A.No.1769/2019.
6. Counsel appearing for the appellants in R.S.A.No.
470/2021 also filed I.A.No.2/2021 for additional documents and
document of sale deed and there was a partition between the
family members of Siddalingaiah in respect of item No.2 of 'B'
schedule property is also produced before the Court and
counsel would vehemently contend that modifying the share as
6/25 is erroneous and the Trial Court also modified the same in
coming to the conclusion that they are entitled for notional
share instead of 1/5th granted by the Trial Court and when such
document is also produced and these documents are also
necessary for determining the issues involved between the
parties and germane issues has to be considered by the First
Appellate Court, matter requires to be remanded to the First
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C/W RSA No. 1769 of 2019
Appellate Court to consider the additional documents along with
main appeal in R.A.No.3/2014 and in view of the counter claim
made by the appellant in R.S.A.No.1769/2019 and the same is
not considered by the First Appellate Court when the claim is
made and also court fee is paid with regard to the counter
claim is concerned and hence, considering the matter of the
year 2000 original suit almost 23 years has been elapsed and
question of law is involved to determine the share whether
1/5th or 6/25 share as determined by the First Appellate Court
and whether all the parties are entitled for a share in schedule
'A' property and item No.1 of 'B' schedule claimed by the minor
appellant which has been rejected by the Trial Court has to be
determined by the First Appellate Court and hence, the
judgment and decree of the First Appellate Court is requires to
be set aside.
7. In view of the discussions made above, I pass the
following:
ORDER
Appeals are allowed. The judgment and decree of the
First Appellate Court in R.A.No.03/2014 is hereby set aside.
Matter is remitted back to the First Appellate Court to decide
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both question of fact and question of law, since the First
Appellate Court is a statutory appellate court within the time
bound of three months from 09.11.2023.
(ii) The parties are directed to appear before the First
Appellate Court without expecting any notice from the First
Appellate Court on 09.11.2023 and even if any parties does not
appear before the First Appellate Court, the First Appellate
Court do not venture to issue notice and proceed with the
matter and consider the same in accordance with law.
(iii) The Registry is also directed to send the application
and the documents produced along with I.A.No.2/2021 to the
First Appellate Court for consideration along with main appeal.
(iv) The First Appellate Court shall give an opportunity to
both the parties to lead any additional evidence if found
necessary.
Sd/-
JUDGE
AP
