Karnataka High Court
Shri. S. C. Janardhan vs Smt. S. Savitha on 27 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 1112 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1112 OF 2022 (PAR)
BETWEEN:
SHRI. S. C. JANARDHAN
S/O. LATE CHENNEGOWDA,
AGED ABOUT 58 YEARS,
R/AT BOMMEGOWDARA DODDI,
SATHEGAL,
KOLLEGAL TALUK-571 440.
...APPELLANT
(BY SRI. KALYAN R.,ADVOCATE)
AND:
1. SMT. S. SAVITHA
Digitally
signed by W/O. S. SHANKAREGOWDA,
SUMA B N R/AT SATHEGAL VILLAGE,
Location: KOLLEGALA TALUK,
High Court
of Karnataka NOW R/AT D. NO. 9,
V CROSS, II MAIN ROAD,
JAYANAGARA,
MYSORE-570 011.
2. SMT. VEERAMMA
W/O. LATE B. SHIVALINGEGOWDA,
AGED MAJOR,
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RSA No. 1112 of 2022
3. S. NAGARAJU
S/O. LATE B. SHIVALINGEGOWDA,
AGED MAJOR,
4. S. SOMASHEKAR
S/O. LATE B. SHIVALINGEGOWDA,
AGED MAJOR,
RESIDENT OF SATHEGAL VILLAGE,
KOLLEGALA TALUK-571 440.
5. SMT. S. SOWBHAGYA
W/O. LATE PUTTASWAMY,
AGE MAJOR,
R/AT CARE OF LINGEGOWDA,
REVANI VILLAGE, MALAVALLI TALUK,
MANDYA DISTRICT-571 428.
...RESPONDENTS
(BY SMT. P.C. SUNITHA., ADVOCATE FOR R1;
NOTICE TO R2 TO R4 SERVED OF UNREPRESENTED
NOTICE TO R5 SERVED H/S V/O DATED:05.01.2023.
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE
DATED:25.03.2022 PASSED IN RA.No.33/2013 ON THE
FILE OF THE ADDITIONAL DISTRICT AND SESSIONS
JUDGE, CHAMARAJANAGARA (SITTING AT KOLLEGALA)
ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED:27.08.2010 PASSED IN
OS No.134/2006 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, KOLLEGALA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1112 of 2022
JUDGMENT
This appeal is filed by the defendant No.5 aggrieved by
the judgment and order dated 25.03.2022 passed in
R.A.No.33/2013 on the file of Additional District and Sessions
Judge, Chamarajanagara (sitting at Kollegala) (herein after
'First Appellate Court') by which the First Appellate Court
dismissed the applications filed by the appellant in
I.A.Nos.VII and VIII under Section 151 of CPC and also
modified the judgment and decree dated 27.08.2010 passed
by the Trial Court in O.S.No.134/2016, and decreeing the
suit of the plaintiff in its entirety, declaring that the plaintiff
and defendant Nos.1 to 4 are entitled for 1/5th share each in
all the suit schedule properties by metes and bounds.
2. The suit in O.S.No.134/2016 was filed by the
plaintiff Smt.Savitha against the defendants seeking 1/5th
share in the plaint schedule properties and also seeking
cancellation to the entries in the revenue records which were
made in the name of respondent No.5 in respect of item
No.3 of the plaint schedule properties and for consequential
reliefs. The Trial Court on appreciation of evidence held that
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expect item No.3 of the suit schedule properties, rest of the
properties were the self acquired properties of deceased
B.Shivalinge Gowda and granted 1/5th share therein. The
Trial Court declined to grant any relief in respect of item
No.3 of the suit schedule properties on the premise that said
deceased B.Shivalinge Gowda during his lifetime had entered
into agreement of sale in favour of defendant No.5 agreeing
to convey the suit schedule properties and same thus was
not available for partition.
3. Being aggrieved by the said judgment and decree
plaintiff filed an appeal in R.A.No.33/2013 before the First
Appellate Court. Considering the grounds urged the First
Appellate Court framed following points for its consideration:
"1. Whether the appellant/plaintiff made out the
grounds to allow I.A. I filed U/s. 5 of the
Limitation Act R/w Order 41 Rule 3A CPC?
2. Whether the appellant/plaintiff made out the
grounds to allow L.A. III filed U/o. 41 Rule 27
R/w Section 151 CPC?
made out the ground to allow the cross- appeal
filed by him?
4. Whether the respondent No. 5/defendant No.
5 made out the grounds to allow L.A. No. VII filed
U/s. 151 of CPC to file the written statement?
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5. Whether the respondent No. 5/defendant No.5
made out the grounds to allow I.A. No. VIII filed
U/o. 41 Rule 27 R/w Section 151 of CPC to
permit him to file the documents?
6. Whether the trial Court judgment is not based
on facts of law?
7. Whether the appellant proves that the
judgment and decree passed by the learned trial
judge is illegal and perverse?
8. Whether the judgment and decree of the trial
Court requires for interference?
9. What order?"
4. In the said appeal, defendant No.5 filed two
applications in I.A.Nos.VII and VIII One seeking permission
to file written statement and counter claim and another
seeking to produce additional document. The First Appellate
Court taking note of the fact that the said applications were
filed after expiry of almost 16 long years and taking into
consideration the position of law declined to entertain the
said applications and rejected the same. The First Appellate
Court also found that the judgment and decree passed by
the Trial Court declined to grant the share in Item No.3 of
the suit schedule properties was erroneous and as such
granted share even in item No.3 of the suit schedule
properties. Thus decreed the suit in its entirety. Being
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aggrieved by the same defendant No.5 is before this Court in
this appeal.
5. Sri.Kalyan.R, learned counsel for the appellant
reiterating the grounds urged in the memorandum of the
appeal submitted that deceased B.Shivalinge Gowda being
the absolute owner of item No.3 of suit schedule properties
had executed an agreement of sale dated 24.12.1987 in
favour of defendant No.5 and he had even delivered the
possession of the said property. He further submits that in
furtherance to the said agreement name of defendant No.5
was mutated in the revenue records. Thus, he has been in
exclusive possession and enjoyment of item No.3 of the suit
schedule properties. He submits though defendant No.5
could not file written statement in the Original Suit, he
sought permission of the First Appellate Court by filing
application in I.A.No.VII filed under Section 151 of CPC
seeking permission to file written statement as well as the
counter claim. It his further submission that the possession
of defendant No.5 had become adverse and hostile to the
title and ownership of the parties to the suit, which plea
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aught to have been pleaded. Therefore, the application
seeking permission to file the written statement was filed
and that the First Appellate Court without adverting to the
factual aspect of the matter erred in rejecting the said
application. He further submits that another application in
I.A.No.VIII was filed under Section 151 of CPC to bring on
record the agreement dated 24.12.1987 which was executed
by deceased B.Shivalinge Gowda in favour of defendant
No.5, production of which was imperative for the proper and
effective adjudication of the lis between the parties. He
submits that non-consideration of these two applications by
the First Appellate Court has resulted in injustice and
prejudice to the case of the appellant, giving raise to
substantial question of law to be addressed by this Court.
6. Per contra, Smt.P.C.Sunitha, learned counsel for the
plaintiff submits that, the rejection of applications by the
First Appellate Court, filed by the defendant No.5 seeking to
file written statement and additional document cannot be
found fault with. She submits that such an application has
been filed after lapse of more than 16 years without any
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proper explanation. She submits that defendant No.5 had
every opportunity to file written statement at the first
instance before the Trial Court and that not having been
done, the appellant is not entitled for such a relief and no
substantial question of law would arise for consideration.
Hence, seeks for dismissal of the appeal.
7. Heard. Perused the records.
8. The suit filed by the plaintiff-daughter of deceased
B.Shivalinge Gowda against her mother, brothers and sister
being defendant Nos.1 to 4 respectively, claiming her 1/5th
share in the suit schedule properties which consists of seven
items described as under:
measuring 1 acre 9 cents situated at Satthegala village
nomenclature of land is Shivanasamudra gadde.
Suit item No.2 property land in Sy. No. 942/B
measuring 1 acre 69 cents situated at Satthegala
village nomenclature of land is Sethuve gadde.
Suit item No.3 property lnd in Sy. No. 271/1
measuring 4 acres 86 cents situated at Satthegala
village nomenclature of land is doddi hola.
Suit item No.4 property land in Sy. No. 294/1
measuring acres situated at Satthegala village
nomenclature of land Basavashetty hola
Suit item No.5 property is 3 ankanas of country tiled
house land in Sy.No. 457 measuring 1 acre 9 guntas
situated at Satthegala village.
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Suit item No.6 property is a vacant site (hittalul
situated at Satthegala village.
Suit item No.7 property is house site with a row of
Mangalore tiles roofing house [salumane] bearing
house No. 229 & 229/B constructed therein in its half
portion situated at Satthegala village."
9. The Trial Court taking note of the fact that the suit
schedule properties were the self acquired properties of
deceased B.Shivalinge Gowda granted 1/5th in all the suit
schedule properties except Item No.3 of the suit schedule
properties. The reasons for the Trial Court to decline the
relief in respect of Item No.3 of the suit schedule properties
is found at para No.9 of the judgment, that Item No.3 of the
suit schedule properties was sold by B.Shivalinge Gowda in
favour of defendant No.5 during his lifetime, for family
necessity. As such, the said Item No.3 was not available for
partition. However in the appeal First Appellate Court having
found that there was no sale of Item No.3 of the suit
schedule properties in the manner known to law and mere
agreement of sale would not convey the title of the property,
declined to concur and confirm with the findings arrived at
by the Trial Court.
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10. Further, while considering the applications filed by
the defendant No.5 seeking permission to file written
statement and to produce additional evidence, at para No.18
of the judgment, the First Appellate Court has found that suit
was filed in the year 1999 and though defendant No.5 had
appeared through his counsel before the Trial Court and did
not choose to file written statement. It has also found that
the said suit was thereafter transferred to Senior Civil Judge,
Chamarajanagara in the year 2005. That the defendant No.5
had appeared even after the transfer of the said suit to
Senior Civil Judge, Chamarajanagara yet did not choose to
file written statement. The First Appellate Court has also
found that defendant No.5 failed to appear before the First
Appellate Court despite service of notice on 29.11.2019 but
he appeared on 03.09.2021 with the above application
seeking permission to file additional written statement.
Thus, First Appellate Court has taken note of the fact, that
from the date of filing of the suit till the year 2021, though
the defendant No.5 was aware of the proceedings for more
than 16 years did not take any steps to file the written
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statement. The First Appellate Court has also taken note of
the fact that counter claim, if any, ought to have been filed
before finalizing the issues and leading evidence in the
matter. Taking note of these factual and legal aspect of the
matter the First Appellate Court declined to accept the
interim application filed by the defendant No.5 seeking
permission to file his written statement, thereby negated his
request and proceeded to hold that the plaintiff and other
defendants were also entitled for 1/5th share in the Item
No.3 in the suit schedule properties.
11. Yet another aspect to be noted here, that the claim
of the defendant No.5 is that he had entered into agreement
of sale dated 24.12.1987 with B.Shivalinge Gowda to
purchase the Item No.3 of the suit schedule properties. It is
not the case of defendant No.5 that pursuant to the said
agreement, he has taken any steps seeking conveyance of
the property in his favour in the manner known to law.
12. Needless to state, mere entering into agreement of
sale would not create any right, title and interest in respect
of immovable property providing any locus-standi for the
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appellant to seek the relief as sought to be done in this
proceedings.
13. No illegality or irregularity can be found with
reasoning and conclusion arrived at by the First Appellate
Court. In that view of the mater, no substantial question of
law would arise for consideration in this appeal. Appeal is
therefore dismissed.
Sd/-
JUDGE
RL
