Karnataka High Court

Smt. Lalitha vs M. Srinivas on 30 May, 2024

Author: Hanchate Sanjeevkumar

Bench: Hanchate Sanjeevkumar

                                                   -1-
                                                              NC: 2024:KHC:18302
                                                              RFA No. 87 of 2015




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 30TH DAY OF MAY, 2024

                                              BEFORE
                    THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
                          REGULAR FIRST APPEAL NO. 87 OF 2015 (PAR)
                   BETWEEN:
                   SMT. LALITHA
                   D/O M. SRINIVAS,
                   W/O R. RAJU,
                   AGED ABOUT 35 YEARS,
                   R/AT HENNAGARA VILLAGE,
                   JIGANI HOBLI, ANEKAL TALUK,
                   BANGALORE DISTRICT-562106.
                                                                     ...APPELLANT
                   (BY SRI. VIJAYA KUMAR BHAT A., ADVOCATE)

                   AND:
                   1.     M. SRINIVAS
                          S/O LATE MUNIYALLAPPA,
                          AGED ABOUT 62 YEARS,

                   2.     S. RAMACHANDRA
                          S/O M. SRINIVAS,
                          AGED ABOUT 32 YEARS,
Digitally signed
by
MARKONAHALLI       3.     DILIP KUMAR
RAMU PRIYA                S/O M. SRINIVAS,
Location: HIGH
COURT OF                  AGED ABOUT 30 YEARS,
KARNATAKA
                          RESPONDENTS 1 TO 3
                          ARE R/AT JARAGANAHALLI VILLAGE,
                          WARD NO.30,
                          MUNIYALLAPPA LAYOUT,
                          RAJAMMA GARDEN,
                          J.P. NAGAR POST,
                          BANGALORE-560078.

                   4.     SHIVAMMA
                          W/O J. SIDDAIAH,
                          HOUSE NO.17/1,
                          RAJAMMA GARDEN,
                                  -2-
                                       NC: 2024:KHC:18302
                                       RFA No. 87 of 2015




       J.P NAGAR,
       BANGALORE-560078
       SINCE DEAD BY HER LRS.,

4(a)   J. SIDDAIAH
       S/O JAVACHARI,
       80 YEARS

4(b) SMT. SAROJA
     W/O SRI. CHANNA KRISHNAPPA
     50 YEARS

4(c)   SRI. RAJENDRA
       S/O SIDDAIAH
       47 YEARS

4(d) SMT. PRABHAVATHI
     W/O SRI. KANTHARAJU
     45 YEARS

4(e)   SMT. HEMAVATHI
       W/O SRI. MANJUNATH
       43 YEARS

       ALL ARE RESIDENT HOUSE NO.5,
       RAJAMMA GARDEN,
       RAJKUMAR ROAD,
       JARAGANAHALLI,
       KANAKAPURA MAIN ROAD,
       BENGALURU-560078.

       AMENDED AS PER ORDER
       DATED 02.03.2020.

5.     VASUDEVA NAIDU
       S/O B. VENKATADRI,
       AGED ABOUT 55 YEARS,

6.     B. PARVATHI
       W/O VASUDEVA NAIDU,
       AGED ABOUT 45 YEARS,

       RESPONDENTS 5 AND 6 ARE
       R/AT RAJAMMA GARDEN,
       JARGANAHALLI VILLAGE,
       J.P NAGAR POST,
                                   -3-
                                                    NC: 2024:KHC:18302
                                                    RFA No. 87 of 2015




      KANAKAPURA ROAD,
      BANGALORE-560078

                                                         ...RESPONDENTS

(BY  SRI.  V.  VIJAYASHEKARA   GOWDA,      ADVOCATE                    FOR
CAVEATORS/RESPONDENT NOS.5 AND 6, 4(b), 4(d) AND 4(e);
VIDE ORDER DATED 10.02.2020 SERVICE OF NOTICE                           TO
RESPONDENT NOS.4(a) AND 4(c) IS HELD SUFFICIENT;
VIDE R(J) CIRCULAR NO.126/2021 DATED 25.11.2021, RESPONDENT
NOS.1, 2 AND 3 ARE SERVED)


      THIS RFA IS FILED UNDER ORDER 41 RULE 1 READ WITH
SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST
THE JUDGEMENT AND DECREE DATED 20.10.2014 PASSED IN
O.S.NO.15/2005 ON THE FILE OF XLIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, CCH.44, BANGALORE, DISMISSING THE SUIT FOR
PARTITION, DECLARATION AND PERMANENT INJUNCTION.

      THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

This Regular First Appeal is filed by the plaintiff

challenging the judgment and decree dated 20.10.2014 passed

by the XLIII Additional City Civil and Sessions Judge,

Bengaluru, (henceforth referred to as 'the Trial Court') in

O.S.No.15/2005, dismissing the suit filed by her for partition,

declaration and permanent injunction.

2. For the purpose of convenience, ranking of the

parties is referred to as per their status before the Trial Court.

NC: 2024:KHC:18302

3. Brief facts of the case are as follows:

3.1 The plaintiff filed a suit for partition of 1/4th share in

the suit 'A' and 'B' schedule properties and for declaration that

the alienation made by the defendant Nos.1 to 3 under

registered sale deed dated 12.09.2003 (stated as 29.09.2003

in the impugned judgment) in favour of defendant No.4 is not

binding on her 1/4th share in the suit schedule properties and

for consequential relief of permanent injunction.

3.2 It is stated that one Sri Jingappa who is the

ancestor of the plaintiff died leaving behind his son Sri

Muniyellappa. It is stated that the suit schedule properties are

ancestral properties. Sri Muniyellappa died on 01.08.1987

leaving behind his four sons, namely, Sri Channaswamappa, Sri

Ramappa and Sri Srinivas (defendant No.1) and Sri

Krishnappa. Defendant No.1, who is the third son of Sri

Muniyellappa, through his wife - Smt.Jayamma has got one

daughter Smt.Lalitha, the plaintiff and two sons, who are

defendant Nos.2 and 3. During the lifetime of Sri Muniyellappa

and his sons, they constituted a Hindu joint family and out of

the joint family funds, he acquired the immovable property

bearing Sy. No.17/1 measuring 01 acre situate at Jaraganahalli

NC: 2024:KHC:18302

from his vendor - Sri Rangappa through registered sale deed

dated 27.09.1965. There was an oral partition during the

lifetime of Sri Muniyellappa and as per this partition, all his four

sons were allotted 10 guntas each, out of the land in Sy.

No.17/1. Therefore, as per this partition, defendant No.1 has

acquired the property to an extent of 10 guntas. It is stated

that the plaintiff is the only daughter of defendant No.1 and

defendant Nos.2 and 3 are her brothers. Therefore, the plaintiff

and defendant Nos.1 to 3 are coparceners. Hence, the plaintiff

filed the suit for claiming 1/4th share in the suit schedule

properties.

3.3 Defendant No.4 is the purchaser of the suit 'B'

schedule property from defendant Nos.1 to 3 while defendant

Nos.5 and 6 are purchasers of the suit 'C' schedule property

from defendant Nos.1 to 3. Defendant Nos.4 to 6 have

contested the suit by filing written statement.

3.4. The Trial Court has framed the issues and additional

issues as follows:

"1) Whether plaintiff proves that suit schedule property is her ancestral property?

NC: 2024:KHC:18302

2) Whether plaintiff is entitled for partition and separate possession of her share in suit schedule property?

3) To what share plaintiff is entitled?

4) Whether defendant No.4 proves that suit is bad for non inclusion of entire joint Hindu family property?

5) Whether defendant No.4 proves that partition has taken place earlier to suit?

         6)    What order or decree?"

Additional issues:

1. Whether defendants 5 and 6 prove that defendants 1 to 3 have sold C-schedule property to meet their family necessity ?

2. Whether defendants 5 and 6 prove that the Court Fee paid is not proper?

3. Whether plaintiff proves that she is in joint possession and enjoyment of suit properties?"

3.5. The plaintiff was examined through her power of

attorney holder, who is her husband. On behalf of defendant

Nos.4 to 6, the special power of attorney holder of defendant

No.4 has been examined as DW.1. Both have produced

documentary evidence and they have been exhibited during the

trial.

NC: 2024:KHC:18302

3.6. The Trial Court dismissed the suit only on the

ground that the plaintiff was not examined in the suit but her

power of attorney holder, who is her husband, was examined

as PW.1 and therefore, by following the judgment of this Court

in the case of Abdul Basheer and Another v. The State of

Karnataka, rep., by its Chief Secretary and Others [ILR

2013 Karnataka 4435], held that the evidence adduced by

PW.1 who is the power of attorney holder of the plaintiff,

cannot be taken into consideration in respect of allegations

made by the plaintiff. Hence, the Trial Court answered issue

Nos.2 and 3 in the negative and thus, dismissed the suit. Being

aggrieved by the said judgment and decree, the plaintiff has

preferred this appeal.

4. Learned counsel for the appellant - plaintiff

submitted that the matter be remanded to the Trial Court for

fresh consideration and the plaintiff herself will lead evidence.

Hence, he prays to allow the appeal and remand the case to

the Trial Court for fresh consideration.

5. On the other hand, the learned counsel for the

respondent Nos.5 and 6 and 4(b), 4(d) and 4(e) justified the

judgment and decree passed by the Trial Court and submitted

NC: 2024:KHC:18302

that the Trial Court has rightly rejected the evidence of PW.1

and hence, the plaintiff has not proved her case and thus,

dismissal of the suit by the Trial Court is proper. Hence, he

prays to dismiss the appeal.

6. Upon hearing the rival submissions of the learned

counsel for the parties, the point that arises for consideration in

this appeal is as follows:

Whether in the facts and circumstances of the case, the Trial Court was not justified in rejecting the evidence of PW.1 on the ground that his evidence cannot be taken into consideration since he has given evidence as power of attorney holder of the plaintiff and thus, matter requires remand to the Trial Court for reconsideration by reserving liberty to the plaintiff to examine herself as a witness in the trial?.

7. The only reason on which the Trial Court dismissed

the suit was that the husband of the plaintiff being her power of

attorney holder has given evidence in the suit. The Trial Court

by relying upon the judgment of this Court in Abdul Basheer's

case (supra) dismissed the suit holding that the evidence given

by the power of attorney holder of the plaintiff cannot be

NC: 2024:KHC:18302

considered. The Trial Court has not considered the evidence of

the plaintiff tendered through her power of attorney holder.

Thus, it totally rejected the case of the plaintiff.

8. The plaintiff has made some allegations in the suit

regarding the sale of land by defendant Nos.1 to 3 in favour of

defendant Nos.4 to 6 and that the same was illegal and was

done by playing fraud on her. Hence, the plaintiff herself needs

to tender evidence. Therefore, without discussing merits

involved in the case, this Court is of the opinion that it is

appropriate to remand the case to the Trial Court for fresh

consideration by reserving liberty to the plaintiff to tender

evidence by herself. Hence, I answer the point in the

affirmative and pass the following:

ORDER

(i) The appeal is allowed.


      (ii)    The impugned judgment and decree

      dated     20.10.2014        passed    by   the        XLIII

      Additional   City   Civil    and     Sessions    Judge,