Karnataka High Court
Sharada W/O. Subray Bhat vs Anant Timmanna Bhat on 3 January, 2024
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NC: 2024:KHC-D:134-DB
RFA No. 100056 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100056 OF 2021 (PAR/POS)
BETWEEN:
SHARADA W/O. SUBRAY BHAT
AGE: 71 YEARS, OCC:HOUSEHOLD WORK,
R/O: BENNALLI MAJARE, HEGGE VILLAGE,
UMBALAMANE HOBLI, TQ: SIDDAPUR
DIST: UTTARA KANNADA-581355
...APPELLANT
(BY SRI. VISHWANATH HEGDE, ADVOCATE)
AND:
1. ANANT S/O. TIMMANNA BHAT,
AGE: 55 YEARS OCC: AGRICULTURE,
Digitally signed R/O: BENNALLI MAJARE, HEGGE VILLAGE,
by
SHIVAKUMAR UMBALAMANE HOBLI, TQ: SIDDAPUR
HIREMATH
Date:
DIST: UTTARA KANNADA-581355.
2024.01.20
14:40:45 +0530
2. BALACHANDRA S/O. TIMMANNA BHAT
AGE: 53 YEARS OCC: AGRICULTURE,
R/O: BENNALLI MAJARE, HEGGE VILLAGE,
UMBALAMANE HOBLI, TQ: SIDDAPUR
DIST: UTTARA KANNADA-581355.
3. VENKATRAMAN S/O. TIMMANNA BHAT
AGE: 49 YEARS OCC: AGRICULTURE,
R/O: BENNALLI MAJARE, HEGGE VILLAGE,
UMBALAMANE HOBLI, TQ: SIDDAPUR
DIST: UTTARA KANNADA-581355.
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NC: 2024:KHC-D:134-DB
RFA No. 100056 of 2021
4. KESHAV S/O. TIMMANNA BHAT
AGE: 45 YEARS OCC: AGRICULTURE,
R/O: BENNALLI MAJARE, HEGGE VILLAGE,
UMBALAMANE HOBLI, TQ: SIDDAPUR
DIST: UTTARA KANNADA-581355.
5. GEETA W/O. GANAPATI RAO
AGE: 50 YEARS OCC: HOUSEHOLD WORK,
R/O: BENNALLI MAJARE, HEGGE VILLAGE,
UMBALAMANE HOBLI, TQ: SIDDAPUR
DIST: UTTARA KANNADA-581355.
...RESPONDENTS
(BY SRI. NARAYAN V. YAJI, ADVOCATE)
THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96 OF
CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 17.03.2021 PASSED IN O.S.NO.80/2015 ON THE FILE
OF THE SENIOR CIVIL JUDGE, SIRSI, SITTING AT SIDDAPUR
AND COST OF THE APPEAL MAY KINDLY BE AWARDED IN
FAVOUR THE APPEALLANT AND AGAINST THE RESPONDENTS
ALONG WITH SUCH OTHER RELIEF AS THE HON'BLE COURT
DEEMS FIT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
JUDGMENT
Though the appeal is listed for Admission, with the
consent of both side, the matter is taken up for final
disposal.
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2. This appeal is filed by the plaintiff challenging
the Judgment and Decree dated 17.03.2021 passed in
O.S.No.80/2015 by the Senior Civil Judge, Sirsi.
3. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court.
4. The appellant is the plaintiff and the
respondents are the defendants.
5. The plaintiff filed a suit for partition and
separate possession in respect of the suit schedule
property. It is the case of the plaintiff that, the plaintiff is
the wife of late Subray Mukund Bhat and the defendants
are the children of late Timmanna Bhat. Timmanna Bhat
and Mukund Bhat were full brothers. The husband of the
plaintiff died on 11.07.1993. Out of the wedlock they have
no issues. It is contended that, the first wife of the Subray
namely Subbi pre-deceased him and she also died
issueless. Therefore, the plaintiff and her husband fostered
two years old child namely Ramachandra S/o. Annayya
Bhat who is her sister's son with an intention to adopt him.
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A formal deed of adoption was executed and registered on
22.03.2021. The adoption ceremony had taken place on
18.10.1991 and adoption was duly acted upon. Since the
adoption, the said Ramachandra started residing with the
plaintiff. He was taking care of the plaintiff and assisting
her in looking after the suit schedule properties. There is
no partition in respect of the suit schedule properties.
Hence, the plaintiff demanded for partition and separate
possession of the suit schedule property, but the
defendants refused to effect the partition. Hence, cause of
action arisen for the plaintiff to file a suit for partition and
separate possession.
6. The trial Court issued summons to defendant
Nos.1 and 5, in spite of service of notice the defendant
Nos.1 and 5 remained absent and were placed ex-parte.
The defendant No.2 filed written statement and admitted
that, the defendants are the children of Timmanna. Their
father and Subraya Mukund are the full brothers and the
first wife of Subraya pre-deceased him. It is denied that,
NC: 2024:KHC-D:134-DB
the descriptions of the suit properties are not correct and
denied the other averments made in the plaint and prayed
to dismiss the suit.
7. The trial Court on the basis of the pleadings of
the parties, framed the following issues and additional
issue:
(i) Whether the plaintiff proves that herself
and her late husband Subray Bhat adopted one
Ramachandra S/o. Annanya Bhat under registered
adoption deed dated 22.03.2001?
(ii) Whether the plaintiff proves that herself
and her adopted son are residing in item No.1 of suit
'B' Schedule properties ?
(iii) Whether the plaintiff is entitled for
partition and separate possession of her half share
over the suit properties by metes and bounds?
(iv) What order or decree ?
Additional Issue No.1:
Whether the plaintiff proves that she is the
legally wedded wife of late Subray Bhat.
NC: 2024:KHC-D:134-DB
8. The plaintiff in support of his case examined
himself as P.W.1 and got marked 6 documents as Ex.P.1
to Ex.P.6. Further the defendant No.4 was examined as
D.W.1 and no documents are marked. The trial Court on
appreciation of the oral and documentary evidence,
answered issue Nos.1 to 3 and additional issue No.1 in the
negative and issue No.4 as per the final order. The trial
Court dismissed the suit. The plaintiff aggrieved by the
Judgment and decree passed by the trial Court filed this
appeal.
9. Heard the learned counsel for the plaintiff and
learned counsel for the defendant No.2.
10. Learned counsel for the appellant/plaintiff
submits that, the trial Court framed issues on 06.07.2009.
On the basis of issues framed by the trial Court, the
plaintiff and defendants have led evidence. He submits
that, the trial Court while passing the Judgment had
framed additional issue No.1 and the trial Court has not
provided any opportunity to the parties to lead evidence
NC: 2024:KHC-D:134-DB
on additional issue No.1. He submits that, the Judgment
and decree passed by the trial Court is arbitrary and
erroneous and is in violation of the principles of natural
justice. Hence, on this ground he prays to allow the
appeal.
11. Per contra, learned counsel for the defendant
No.2 supports the impugned Judgment and prays to
dismiss the appeal.
12. Having heard the learned counsels for the
parties, the point that would arise for our consideration
are:
"1. Whether the plaintiff proves that, the trial
Court has committed an error in not providing an
opportunity to the parties to lead evidence on an
additional issue?
2. What order or decree?"
13. Answer to Point No.1 : The plaintiff filed a
suit for partition and separate possession. The defendant
No.2 filed written statement denying the averments made
in the plaint. The trial Court framed issues on 06.07.2019.
NC: 2024:KHC-D:134-DB
The parties on the basis of the issues framed by the trial
Court, have led evidence and closed their side. Learned
counsel for the parties addressed their arguments. The
trial Court at the time of passing the Judgment has framed
additional issue No.1 and pronounced the Judgment.
When the trial Court was of the opinion that an additional
issue is to be framed, the trial Court would have been
notified to the parties regarding framing of additional issue
and provided an opportunity to the parties if any to lead
evidence on the additional issue. The trial Court without
providing an opportunity or without notifying the same to
the learned counsel for the parties, framed issues and
proceeded to pass the Judgment on the merits and also
answered Issue No.1 in the negative and dismissed the
suit. The procedure adopted by the trial Court is contrary
to the Order 14 Rule 5 of CPC. The trial Court has
committed an error in framing additional issue No.1 on the
date of pronouncement of Judgment. Hence, on this
ground alone, the impugned Judgment is liable to be set
aside.
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14. In view of the above discussion, we answer
point No.1 in the affirmative and accordingly proceed to
pass the following:
ORDER
(i) The appeal is allowed;
(ii) The Judgment and Decree dated
17.03.2021 passed in O.S.No.80/2015 by
the Senior Civil Judge, Sirsi (itinerary Court
Siddapur) is set aside.
(iii) The matter is remanded to the trial Court.
(iv) The trial Court is directed to provide an
opportunity to the parties to lead evidence
on additional issue No.1 if any and pass the
Judgment in accordance with law.
(v) The parties are directed to appear before
the trial Court on 12.02.2024 without
awaiting any further notice.
(vi) Office is directed to transmit the records
forthwith.
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NC: 2024:KHC-D:134-DB
(vii) Liberty is reserved to the parties to produce
the documents if necessary before the trial
Court.
(viii) I.A.No.1/2022 is dismissed as withdrawn
with the aforesaid liberty.
(ix) In view of the disposal of the appeal,
I.A.No.1/2021 is dismissed as the same
does not survive for consideration.
Sd/-
JUDGE
Sd/-
JUDGE
SVH
