Karnataka High Court
M Narayan vs Smt S Vasundhara on 9 October, 2023
Bench: V Srishananda
-1-
NC: 2023:KHC:36667
RFA No. 1439 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 1439 OF 2014 (DEC/PAR)
BETWEEN:
M NARAYAN
S/O LATE MUNISWAMAPPA
AGED ABOUT 80 YEARS
R/A NO.1282, MICO LAYOUT
HONGASANDRA
BANGALORE-KOPPA MAIN ROAD
BANGALROE 560 068
...APPELLANT
(BY SMT NAYANA TARA B G. AND SMT SREEKALA P.A.
ADVOCATES)
AND:
1. SMT S VASUNDHARA
W/O ANJANAPPA
Digitally AGED 69 YEARS
signed by R
MANJUNATHA NO.24, D B ROAD
Location:
HIGH COURT R S PURAM
OF
KARNATAKA COIMBATORE
D/O LATE AYODHYARAMAN
REPRESENTED BY GENERAL
POWER OF ATTORNEY HOLDER
R VENKATESH
S/O LATE M V RAMANNA
AGED ABOUT 52 YEARS
R/A NO.60, SRINIDHI,
1ST CORSS 4TH MAIN,
SARVABHOUMANAGAR
CHIKKASANDRA
BANGALORE 560 061
-2-
NC: 2023:KHC:36667
RFA No. 1439 of 2014
2. SMT E LAKSHMI
W/O P ETHIRA
AGED 67 YEARS
NO.77, VVSIAL STREET
COIMBATORE
D/O LATE AYODHYARAMAN
REPRESENTED BY GENERAL
POWER OF ATTORNEY HOLDER
R VENKATESH
S/O LATE M V RAMANNA
AGED ABOUT 52 YEARS
R/A NO.60, SRINIDHI, 1ST CROSS
4TH MAIN, SARVABHOUMANAGAR
CHIKKASANDRA
BANGALORE 560 061
3. SMT R REKHA
W/O C RANGARAJ
AGED ABOUT 57 YEARS
NO.43, C KALAIMAGAL KOIL STREET
SWARNAPURI , SALEM
D/O LATE AYODHYARAMAN
REPRESENTED BY GENERAL
POWER OF ATTORNEY HOLDER
R VENKATESH
S/O LATE M V RAMANNA
AGED ABOUT 52 YEARS
R/A NO.60, SRINIDHI, 1ST CORSS
4TH MAIN, SARVABHOUMANAGAR
CHIKKASANDRA
BANGALORE 560 061
4. SMT A HEMAVATHI
AGED 56 YEARS
NO.25, PALAYAKARI STREET
PORUR, CHENNAI 600016
D/O LATE AYODHYARAMAN
REPRESENTED BY GENERAL
POWER OF ATTORNEY HOLDER
R VENKATESH
S/O LATE M V RAMANNA
-3-
NC: 2023:KHC:36667
RFA No. 1439 of 2014
AGED ABOUT 52 YEARS
R/A NO.60, SRINIDHI,
1ST CORSS, 4TH MAIN,
SARVABHOUMANAGAR
CHIKKASANDRA
BANGALORE 560 061
5. A MOHAN
AGED 65 YEARS
S/O AYODHYARAMAN
NO.971, HONGIRANA
29TH MAN
POORNAPRAGNA LAYOUT
SUBRAMANYA POST
UTTARAHALLI
BANGALORE 560061
6. A DAYANANDA
S/O AYODHYARAMAN
AGED 49 YEARS
NO.231, 15TH MAIN
24TH CROSS, BSK III STAGE
BANGALORE 10
...RESPONDENTS
(BY SRI H.RAMACHANDRA,ADVOCATE FOR R1 TO R4)
***
RFA FILED U/SEC 96 OF CPC, AGAINST THE JUDGEMENT
AND DECREE DATED 10.9.2012 PASSED IN O.S.NO.2435/2010
ON THE FILE OF V ADDITIONAL CITY CIVIL JUDGE,
BANGALORE, DECREEING THE SUIT FOR PARTITION,
SEPARATE POSSESSION AND DECLARATION, ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-4-
NC: 2023:KHC:36667
RFA No. 1439 of 2014
JUDGMENT
Heard the learned counsel Miss Nayanatara B. G.,
appearing on behalf of appellants and the learned counsel
Sri Ramachandra. H., appearing for contesting respondent
Nos.1 to 4.
2. The present appeal is directed against the judgment
and decree dated 10.09.2012 passed by the V Addl. City Civil
Judge, Bangalore City in O.S. No.2435/2010.
3. Though the matter is listed for Admission by
consent of both the parties, the matter is taken up for final
disposal having regard to the narrow amplitude of the matter.
4. The parties are referred to as the 'plaintiffs' and
'defendants' for the sake of convenience.
5. Smt. S.Vasundhara and others (in all four) have
filed a suit against the appellant and two others for partition
and separate possession of the suit schedule property. The suit
was filed in respect of immovable property bearing Sy.
No.19/2, which is industrially converted property, measuring to
NC: 2023:KHC:36667
RFA No. 1439 of 2014
an extent of 9000 sq. ft. bearing CMC No.236/49/2 situated at
Bommanahalli Village, Begur Hobli, Bangalore South Taluk,
which was bounded on the East by : Remaining portion of the
same survey number, West by : Bangalore - Hosur Road, North
by : Land belonging to MBT and South by : Public Road.
6. The contention of the plaintiffs is that the Plaintiffs
and defendant Nos. 1 and 2 are the children of late
Ayodhyaraman and they all constitute undivided Hindu joint
family. Amongst children of late Ayodhyaraman one daughter,
namely, Smt. Anuradha, passed away on 22.08.1981 and
Ayodhyaraman passed away on 17.09.1981 and wife of late
Ayodhyaraman also passed away on 26.11.1985 leaving behind
Plaintiffs and defendant Nos. 1 and 2 as their sole surviving
legal heirs to succeed to their estate.
7. It is further contended that the suit property is
acquired by late Ayodhyaraman during his life time having
purchased the same for under the registered sale deed dated
09.11.1960 and it was in occupation of tenants and there was
no partition and therefore, plaintiffs claim 1/6th share in it.
NC: 2023:KHC:36667
RFA No. 1439 of 2014
8. Upon service of suit summons, the defendant Nos.1
and 3 remained absent and they were placed exparte.
Defendant No.2 appeared and filed written statement.
9. Based on the written statement, whereunder there
was an admission of the entire plaint averments and acquisition
of the suit property by late Ayodhyaraman and defendant No.1
has no right to alienate the property in favour of defendant
No.2 and 3, the trial Court raised necessary issues and after
considering the oral and documentary evidence placed on
record by the parties decreed suit of the plaintiff granted 1/6th
share in respect of the suit property to the plaintiff and
defendant No.2. Being aggrieved by the said judgment and
decree, defendant No.3, who is the alienee from the defendant
No.1 in respect of the suit property, has preferred the present
appeal.
10. Reiterating the grounds urged in the appeal,
learned counsel Miss Nayanathara, vehemently contended that
in the Court below there was no proper service of notice to
defendant No.3 and therefore, defendant No.3 could not appear
and contest the suit on merits and sought for granting an
NC: 2023:KHC:36667
RFA No. 1439 of 2014
opportunity to contest the suit on merits by allowing the
appeal.
11. Per contra, learned counsel Sri Ramachandra
appearing for the plaintiffs and contesting respondents,
contended that there was sufficient service of notice to
defendant No.3 and defendant No.3 did not appear despite
proper service of notice and sought for dismissal of the appeal.
12. Taking note of the fact that the address of the
defendant No.3 was furnished as No.816/K, 16th Cross, 7th
Block, Jayanagara West, Bengalore - 82 and appellant is
actually residing in MICO Layout as is found in the address
mentioned in the appeal memorandum, the service of the
notice to the defendant No.3 is to be treated as not proper
service resulting in exparte judgment being passed against
defendant No.3, who is appellant herein.
13. The suit relief is in respect to immovable property
and for partition. Affording a fair opportunity to the appellant -
defendant No.3 to contest the suit would meet the ends of
justice. However, the delay that was caused to the plaintiffs
NC: 2023:KHC:36667
RFA No. 1439 of 2014
needs to be compensated while affording the proper and fair
opportunity to the defendant No.3.
14. Accordingly, if appellant is directed to pay cost of
Rs.10,000/- to the plaintiffs and file the written statement and
contest the suit before the Court below would meet the ends of
justice.
15. Hence, the following order:
ORDER
(1) The appeal is allowed.;
(2) The impugned judgment and decree dated
10.09.2012 passed by the V Addl. City Civil
Judge, Bangalore City in O.S. No.2435/2010, is
set aside.;
(3) The parties are directed to appear before the
trial Court without further notice on
26.10.2023.;
(4) On the same day the appellant shall file written
statement before the trial Court.;
(5) The trial Court thereafter, is directed to dispose
of the suit in accordance with law, by framing
appropriate issues, on or before 30.06.2024.
NC: 2023:KHC:36667
RFA No. 1439 of 2014
(6) It is needless to emphasize that the parties shall
co-operate for speedy disposal of the suit.;
(7) The payment of cost is condition precedent for
appellant to participate in the trail.
Sd/-
JUDGE
VK
