Karnataka High Court
Ramaboyi Since Dead By Lrs vs Sri Madegowda Since Dead By Lrs on 28 May, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:17834
RSA No. 1102 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR SECOND APPEAL NO. 1102 OF 2011 (DEC/INJ)
BETWEEN:
RAMABOYI
SINCE DEAD BY LRS
1. VENKATESH
S/O. LATE RAMABOYI
AGED ABOUT 62 YEARS
2. R. RAMU @ BALARAMU
S/O. LATE RAMABOYI
SINCE DEAD BY LRS
2(a) SMT. SUNITHA
AGED ABOUT 50 YEARS,
W/O LATE R. RAMU
2(b) ROOPA R.,
AGED ABOUT 30 YEARS,
D/O. LATE R. RAMU
2(c) RANI R.,
Digitally AGED ABOUT 28 YEARS,
signed by D/O. LATE R. RAMU
MALATESH
KC
2(d) RASHMI R.,
Location:
HIGH AGED ABOUT 26 YEARS,
COURT OF D/O. LATE R. RAMU
KARNATAKA
2(e) SRI. SHASHIKUMAR R.,
AGED ABOUT 24 YEARS,
S/O. LATE R. RAMU
2(f) SRI. KIRANKUMAR R.,
AGED ABOUT 22 YEARS,
D/O. LATE R. RAMU
APPELLANTS NO.2(a) TO 2(f) ARE
RESIDING AT DOOR NO.107,
-2-
NC: 2024:KHC:17834
RSA No. 1102 of 2011
LINGAMBUDI PALYA,
JAYAPURA HOBLI,
MYSURU TALUK AND DISTRICT-570008.
3. SRI. DEVARAJU
AGED ABOUT 58 YEARS
S/O. LATE RAMABOYI
4. SRI. MOHAN KUMAR
AGED ABOUT 56 YEARS
S/O. LATE RAMABOYI
5. SRI. HEMACHANDRA
AGED ABOUT 52 YEARS
S/O. LATE RAMABOYI
6. SRI. MAHESHA
AGED ABOUT 44 YEARS
S/O. LATE RAMABOYI
7. SRI. GIRIYABOYI
AGED ABOUT 44 YEARS
S/O. LATE RAMABOYI
APPELLANTS NO.1 TO 7 ARE
RESIDING AT DOOR NO.107,
LINGAMUBUDI PALYA,
JAYAPURA HOBLI,
MYSORE TALUK AND DISTRICT-570008.
8. SMT. INDIRAMMA
AGED ABOUT 54 YEARS,
W/O. ERANNA
R/AT. HINKAL, KASABA HOBLI,
MYSORE TALUK AND DISTRICT-570017.
9. SMT. LALITHA
AGED ABOUT 52 YEARS,
W/O. RAMAKRISHNA
R/AT. ANTHAGARIGE COLONY,
MAJOR,
BHADRAVATHI,
SHIVAMOGGA DISTRICT-577301.
10. SMT. JAYALAKSHMI
AGED ABOUT 48 YEARS,
W/O. NAGARAJU,
-3-
NC: 2024:KHC:17834
RSA No. 1102 of 2011
R/AT. HINKAL, KASABA HOBLI,
MYSORE TALUK AND DISTRICT-570017.
...APPELLANTS
(BY SRI. P. NATARAJU, ADVOCATE)
AND:
SRI. MADEGOWDA
SINCE DEAD BY LRS
1. SMT. NINGAMMA
MAJOR,
W/O. LATE MADEGOWDA
2. SRI. SANNEGOWDA
MAJOR,
S/O. LATE MADEGOWDA
3. SMT. SANNAMMA
MAJOR,
D/O. LATE MADEGOWDA
4. SMT. NACHAMMA
MAJOR,
D/O. LATE MADEGOWDA
5. SMT. KULLAMMA
MAJOR,
D/O. LATE MADEGOWDA
6. SMT. CHENNAMMA
MAJOR,
D/O. LATE MADEGOWDA
7. SRI. BASAVARAJU
MAJOR,
S/O. LATE MADEGOWDA
8. SRI. MADEGOWDA
MAJOR,
S/O. LATE MADEGOWDA
RESPONDENTS NO.1 TO 8 ARE
R/AT. NETKAL VILLAGE,
B.G. PURA HOBLI,
MALAVALLI TALUK,
-4-
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RSA No. 1102 of 2011
MANYDA DISTRICT-571430.
...RESPONDENTS
(BY SRI. L.S. VENKATAKRISHNA, ADVOCATE FOR RESPONDENT
NO.8;
NOTICE SERVED ON RESPONDENT NOS.1 TO 5 AND 7 AND
UNREPRESENTED;
VIDE ORDER DATED 16.02.2023 SERVICE OF NOTICE TO
RESPONDENT NO.6 IS HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 11.01.2011 PASSED IN
R.A.NO.272/2006 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-IV, MYSORE, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DATED 16.06.2000 PASSED
IN O.S.NO.32/1995 ON THE FILE OF THE II CIVIL JUDGE (JR.DN) &
JMFC., MYSORE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri. P.Nataraju, learned counsel for the appellants.
None present on behalf of the respondents.
2. The parties are referred to as they were referred
before the Trial Court.
3. The present appeal is filed by the legal
representatives of plaintiff challenging the dismissal of the suit
in O.S.No.32/1995 vide judgment and decree dated 16.06.2000
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by the II Civil Judge (Jr.Div.) and JMFC, Mysuru, (for short
referred to as 'Trial Court') confirmed in R.A.No.272/2006 vide
judgment dated 11.01.2011 by the Presiding Officer, First
Appellate Court IV, Mysuru, (for short referred to as 'First
Appellate Court') by raising the following substantial questions
of law:
"(i) Whether the judgment and decree passed by
the appellate court is sustainable in law?
(ii) Whether the appellate court was in error in
dismissing the appeal as not maintainable after
having held that the judgment and decree itself
was void since the legal representatives of
Madegowda were not brought on record?
(iii) Whether the proper course for the appellate
court was to set aside the judgment and
decree of the trial court and remit it for fresh
consideration?"
4. The facts in brief which are utmost necessary for
disposal of the present appeal are as under:
A suit came to be filed by the plaintiff for the relief of
declaration and injunction by contending that the plaintiff is the
owner of the landed property bearing Sy.No.69 measuring 06
acres situated at Yedahally village, near Lingambudipalya,
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Jayapura Hobli, Keragally Dhakle, Mysuru Taluk. The title is
traced by the plaintiff on the ground that the plaintiff became
the owner of the aforesaid land by virtue of the final decree
passed in FDP No.7/1990.
5. One Dasaboyi filed a suit in O.S.No.143/1990 for
partition and separate possession of the joint family property
possessed by the members of the joint family of Dasaboyi. The
suit on contest, came to be decreed and final decree
proceedings were initiated in FDP No.7/1990. According to the
plaintiff, he became the owner of the suit property bearing
Sy.No.69, by virtue of said final decree proceedings. It is also
contended by the plaintiff that the defendant having no manner
of right whatsoever, tried to interfere with the suit property,
questioning the title of the plaintiff and therefore, plaintiff was
constrained to file O.S.No.32/1995.
6. Upon the institution of the suit, suit summons were
sent to the defendant and defendant chose to remain absent
and therefore, he was placed exparte. Thereafter, the evidence
of 2nd legal representatives of original plaintiff was recorded,
who got examined himself as PW.1 and placed on record three
documents as Exs.P1 to P3 and closed the side.
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7. The Trial Court on consideration of the plaintiffs'
evidence, came to the conclusion that the plaintiffs have failed
to prove the plaint averments based on the oral and
documentary evidence placed on record and dismissed the suit
of the plaintiffs.
8. Being aggrieved by the same, plaintiffs' filed regular
appeal before the District Court, Mysuru in R.A.No.272/2006.
9. The learned Judge of the First Appellate Court
while considering the application filed inter-alia vide on
I.A.No.V in the said appeal which was filed under Order 22 Rule
4(3) read with Section 151 of Civil Procedure Code and while
passing the order on the said application, came to the
conclusion that decree passed in O.S.No.32/1995 is a nullity,
inasmuch as, the plaintiffs had failed to bring the legal
representatives of the deceased sole defendant on record and
therefore, dismissed the application filed under Section 5 of the
Limitation Act as well as the application filed under Order 22
Rule 4(3) of Civil Procedure Code and consequently dismissed
the appeal.
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10. Being aggrieved by the same, the legal
representatives of the plaintiff are before this Court.
11. Reiterating the grounds urged in the second appeal,
counsel for the appellants contended that since the defendant
was placed exparte, the plaintiffs were not knowing the death
of the defendant and therefore, they could not bring the legal
representatives of deceased sole defendant on record and only
in the regular appeal, when the notices were taken out, the
plaintiffs came to know about the death of the deceased sole
defendant and hence, sought for remitting the matter to the
Trial Court.
12. He also pointed out that the applications filed under
Order 22 Rule 4(3) of Civil Procedure Code and Section 5 of the
Limitation Act have not been considered by the First Appellate
Court in proper perspective and sought for admitting the appeal
on the aforesaid substantial questions of law and sought for
setting aside the order passed by the First Appellate Court and
remitting the matter to the Trial Court for fresh disposal in
accordance with law.
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13. The respondents are served and only respondent
No.8 has engaged the services of Sri. L.S.Venkatakrishna,
learned counsel who is absent today.
14. Taking note of the fact that the decree passed in
O.S.No.32/1995 was a nullity, the First Appellate Court
dismissed the application to bring the legal representatives of
deceased sole defendant on record. Therefore, the substantial
questions raised as stated supra, cannot be considered by this
Court for admitting the appeal.
15. Hence, the following:
ORDER
(i) No substantial questions of law would arise to admit
the appeal for further consideration.
(ii) Accordingly, the appeal is dismissed.
Sd/-
JUDGE
HJ
