Karnataka High Court
Smt. Kumadwathi vs Sri. Ranganatha on 30 July, 2024
Author: V Srishananda
Bench: V Srishananda
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MSA No. 87 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO. 87 OF 2023 (RO)
BETWEEN:
1. SMT. KUMADWATHI,
W/O LATE SHIVANNA,
AGED ABOUT 58 YEARS,
R/O ALKOLA VILLAGE, ALKOLA,
SHIVAMOGGA CITY - 577 204.
2. SMT. ROOPA,
D/O SHIVANNA,
W/O SWAMY,
AGED ABOUT 42 YEARS,
PAINTING CONTRACTOR,
R/O MADAKARIPURA,
CHITHRADURGA - 577 524.
Digitally 3. SUNIL,
signed by S/O LATE SHIVANNA,
MALATESH
KC AGED ABOUT 40 YEARS,
Location: R/O ALKOLA VILLAGE, ALKOLA,
HIGH SHIVAMOGGA CITY - 577 204.
COURT OF
KARNATAKA
4. ANIL,
S/O LATE SHIVANNA,
AGED ABOUT 38 YEARS,
R/O ALKOLA VILLAGE, ALKOLA,
SHIVAMOGGA CITY - 577 204.
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MSA No. 87 of 2023
5. MANJAPPA,
S/O LATE AVALAKKI RANGAPPA,
AGED ABOUT 65 YEARS,
R/O ALKOLA VILLAGE, ALKOLA,
SHIVAMOGGA CITY - 577 204.
6. SMT. SUDHA,
W/O LATE PARAMESHWARAPPA,
AGED ABOUT 55 YEARS,
R/O ALKOLA VILLAGE, ALKOLA,
SHIVAMOGGA CITY - 577 204.
7. SMT. SHRUTHI,
W/O MANJAPPA,
D/O LATE PARAMESHWARAPPA,
AGED ABOUT 35 YEARS,
R/O VADDINAKOPPA,
N.R. PURA ROAD,
SHIVAMOGGA CITY - 577204.
8. KUM. SHWETHA,
D/O LATE PARAMESHWARAPPA,
AGED ABOUT 33 YEARS,
R/O ALKOLA VILLAGE, ALKOLA,
SHIVAMOGGA CITY - 577 204.
9. GANESHA,
S/O LATE PARAMESHWARAPPA,
AGED ABOUT 29 YEARS,
R/O ALKOLA VILLAGE ALKOLA,
SHIVAMOGGA CITY - 577 204.
10. SMT. NEELAMMA
W/O SHEKARAPPA,
AGED ABOUT 53 YEARS,
R/O ALKOLA VILLAGE, ALKOLA,
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MSA No. 87 of 2023
SHIVAMOGGA CITY - 577 204.
11. ANANTH,
S/O SHEKARAPPA,
AGED ABOUT 33 YEARS,
R/O ALKOLA VILLAGE, ALKOLA,
SHIVAMOGGA CITY - 577 204.
12. NIKHIL @ HALESH,
S/O SHEKARAPPA,
AGED ABOUT 31 YEARS,
R/O ALKOLA VILLAGE, ALKOLA,
SHIVAMOGGA CITY - 577 204.
13. HARISHA @ VENKATESH
S/O LATE VEERAPPA,
AGED ABOUT 31 YEARS,
R/O ALKOLA VILLAGE, ALKOLA,
SHIVAMOGGA CITY - 577 204.
14. POOJA,
D/O LATE VEERAPPA,
AGED ABOUT 29 YEARS,
R/O ALKOLA VILLAGE, ALKOLA,
SHIVAMOGGA CITY - 577 204.
15. RANGANATHA,
S/O LATE VEERAPPA,
AGED ABOUT 29 YEARS,
R/O ALKOLA VILLAGE, ALKOLA,
SHIVAMOGGA CITY - 577 204.
16. NAGARAJA @ NAGENDRAPPA
S/O LATE AVALAKKI RANGAPPA,
AGED ABOUT 54 YEARS,
R/O ALKOLA VILLAGE, ALKOLA,
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MSA No. 87 of 2023
SHIVAMOGGA CITY - 577 204.
17. RAJAPPA,
S/O LATE AVALAKKI RANGAPPA,
AGED ABOUT 45 YEARS,
R/O ALKOLA VILLAGE, ALKOLA,
SHIVAMOGGA CITY - 577 204.
18. SMT. YASHODAMMA,
W/O PAKEERAPPA,
D/O LATE AVALAKKI RANGAPPA,
AGEDA BOUT 63 YEARS,
R/O AMBARAGOPPA VILLAGE,
SHIKARIPURA TALUK,
SHIVAMOGGA DISTRICT - 577 427.
19. SMT. JAYALAKSHMI
W/O MURKANNAPPA
D/O LATE AVALAKKI RANGAPPA,
AGED ABOUT 53 YEARS,
R/O VADDINAKOPPA VILLAGE,
SHIVAMOGGA TALUK - 577 204.
20. SMT. BABY,
W/O HALESHAPPA,
D/O LATE AVALAKKI RANGAPPA,
AGED ABOUT 51 YEARS,
R/O VADDINAKOPPA VILLAGE,
SHIVAMOGGA TALUK - 577 204.
21. SMT. SHOBHA,
W/O KRISHNAPPA,
D/O LATE AVALAKKI RANGAPPA,
AGED ABOUT 49 YEARS,
R/O SANTHEKADUR VILLAGE,
SHIVAMOGGA TALUK - 577 222.
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MSA No. 87 of 2023
22. SMT. SAVITHRI,
W/O SIDDESH,
D/O LATE AVALAKKI RANGAPPA,
AGEDA BOUT 45 YEARS,
R/O MOODALAVITTALAPURA VILLAGE,
HOLEHONNUR HOBLI,
BHADRAVATHI TALUK - 577 227.
...APPELLANTS
(BY SRI. S.V. PRAKASH, ADVOCATE)
AND:
1. SRI. RANGANATHA,
S/O RANGAPPA,
AGED ABOUT 47 YEARS,
AGRICULTURIST,
R/O MOODALAVITTALAPURA
VILLAGE, HOLEHONNUR HOBLI,
BHADRAVATHI TALUK - 577 227.
2. SMT. JAYAMMA,
W/O RANGAPPA,
D/O ANANDAPPA,
AGED BOUT 75 YEARS,
R/O MOODALAVITTALAPURA
VILLAGE, HOLEHONNUR HOBLI,
BHADRAVATHI TALUK - 577 227,
SHIVAMOGGA DISTRICT.
3. SHANMUKHAPPA,
S/O RANGAPPA,
AGED ABOUT 58 YEARS,
R/O MOODALAVITTALAPURA,
VILLAGE, HOLEHONNUR HOBLI,
BHADRAVATHI TALUK - 577 227,
SHIVAMOGGA DISTRICT.
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MSA No. 87 of 2023
4. SHIVMURTHY,
S/O RANGAPPA,
AGED ABOUT 55 YEARS,
TEACHER, R/O. C/O U.H. VISHWANATH,
TIMBER MERCHANT, OPP. CITB PARK,
FIRST STAGE, VINOBANAGARA,
SHIVAMOGGA CITY - 577 201.
5. SMT. KUSUMAVATHI,
D/O RANGAPPA,
AGED ABOUT 52 YEARS,
R/O CHIKKANAYAKANAHALLI,
TUMKUR DISTRICT - 572 214.
6. BHASKARA,
S/O RANGAPPA,
AGED ABOUT 49 YEARS,
R/O MOODALAVITTALAPURA
VILLAGE, HOLEHONNUR HOBLI,
BHADRAVATHI TALUK,
SHIVAMOGGA DISTRICT - 577 227.
...RESPONDENTS
(BY SRI. G.B. SHASTRY, ADVOCATE FOR R1;
SRI. P.N. HARISH, ADVOCATE FOR R2;
R3 AND R6 ARE SERVED AND UNREPRESENTED;
VIDE ORDER DATED 28.06.2024 NOTICE TO R4 AND R5 IS
DISPENSED WITH)
THIS MSA IS FILED UNDER ORDER 43 RULE 1 (U) R/W
SEC. 100 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 13.04.2023 PASSED IN RA NO. 128/2020 ON THE FILE
OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM,
SHIVAMOGGA, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 29.01.2020 PASSED IN
OS NO. 598/2008 ON THE FILE OF THE II ADDITIONAL CIVIL
JUDGE AND JMFC, SHIVAMOGGA DISMISSING THE SUIT
REMANDING THE MATTER TO THE TRIAL COURT WITH A
DIRECTION TO DISPOSE THE MATTER AFRESH.
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MSA No. 87 of 2023
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri.Rajendra S., learned counsel appearing on
behalf of Sri.S.V.Prakash, learned counsel for the
appellants and Sri.P.N.Harish, learned counsel for the
respondent.
2. The present second appeal is filed challenging
the order passed in RA No.128/2020 dated 13.04.2023 on
the file of Prl. Senior Civil Judge and CJM, Shivamogga
which came to be allowed and matter was remitted to the
Trial Court permitting respondent No.2 to amend the
plaint and to dispose of the suit afresh in accordance with
law.
3. Brief facts of the case which are utmost
necessary for disposal of the appeal are as under:
3.1. A suit came to be filed in O.S.No.598/2008 by
the plaintiff stating that plaintiff and defendant Nos.3 to 6
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are the grand sons of one Anandappa and children of
Jayamma. Defendant No.1 is the wife and defendant
Nos.7 to 18 are the children of one Avalakki Rangappa.
3.2. During the lifetime of Anandappa, Avalakki
Rangappa and Anandappa together purchased the
property mentioned in 'A' schedule by virtue of a sale
deed dated 03.02.1947 and revenue entries were affected
in the joint names of Andanappa and Avalakki Rangappa.
Wife of Anandappa i.e., Puttamma died and thereafter,
Avalakki Rangappa clandestinely created the revenue
entries in his name.
3.3. After the death of Avalakki Rangappa in the
year 1992, revenue entries were mutated in the name of
Hanumanthamma who is defendant No.1. Defendant
No.2 is the only daughter of Anandappa. They
constituted the members of joint Hindu Undivided Family
and family properties of Anandappa and Avalakki
Rangappa were to be shared by them.
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3.4. It is further contended that defendants
misutilized the funds of the joint family resulting in
plaintiff seeking action against the defendants for
allotment of his share in the suit property.
4. Written statement came to be filed denying the
plaint averments. Learned Trial Judge framed necessary
issues and additional issues.
5. After thorough trial, suit of the plaintiff was
dismissed and counter claim of defendant Nos.2 and 5
was also dismissed.
6. Against the same, plaintiff and defendant
Nos.2 and 5 filed their respective appeals in RA
No.128/2020 which was heard by learned Judge in the
First Appellate Court and disposed of the appeal by a
common judgment dated 13.04.2023 whereby, both the
appeals were allowed and matter was remitted to the
Trial Court for permitting the plaintiff to amend the plaint
relief.
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7. Being further aggrieved by the same, daughter
in law of defendant No.7 and others who are not parties
before the Trial court and First Appellate Court are in this
appeal.
8. Having heard the parties, this Court perused
the material on record meticulously.
9. On such perusal of the material on record,
since both the appeals are allowed and property at an
undisputed point of time was purchased by Anandappa
and Avalakki Rangappa jointly, merely revenue entries
would not create the parties to further alienate the
property as if it is an independent property of Avalakki
Rangappa especially after taking note of the death of
Anandappa.
10. Therefore, the amendment of pleadings is
sought for, goes to the very root of the matter and
contesting parties should also have a right to contest the
same with a amended plaint prayer.
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11. Therefore, remitting the matter to the Trial
Court is just and proper.
12. Hence, following:
ORDER
i. Appeal is meritless and hereby
dismissed.
ii. However, the Trial Court taking note the
fact that suit is of the year 2008, Trial
Court shall dispose of the suit as
expeditiously as possible.
Sd/-
(V SRISHANANDA)
JUDGE
KAV
CT: BHK
