Karnataka High Court
Sri G Shekar vs Sri Govindaraj on 21 November, 2024
Author: K.Natarajan
Bench: K.Natarajan
-1-
NC: 2024:KHC:47343
RFA No. 1497 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 1497 OF 2021 (PAR-)
BETWEEN:
SRI. G. SHEKAR
S/O T. GOPAL,
AGED ABOUT 50 YEARS,
RESIDING AT NO.16,
MUNESHWARA TEMPLE STREET,
ADUGODI,
BENGALURU - 560 030.
...APPELLANT
(BY SRI. R. V. NAIK, ADVOCATE)
Digitally signed by AND:
VEDAVATHI A K
Location: High
Court of
Karnataka 1. SRI. GOVINDARAJ
S/O SRI. T. GOPAL,
AGED ABOUT 65 YEARS,
R/AT N.17, 4TH CROSS,
5TH MAIN,
SAMPANGIRAMA NAGAR,
BENGALURU - 560 027.
2. MRS. VINODHA
D/O T. GOPAL,
-2-
NC: 2024:KHC:47343
RFA No. 1497 of 2021
W/O SRI. SRINIVAS,
AGED ABOUT 52 YEARS,
RESIDING AT NO.33/2,
NAGARAJAPPA LAYOUT,
B. NARAYANAPURA,
BENGALURU - 560 016.
3. MRS. KAMALA
D/O T. GOPAL,
W/O SRI. NATARAJ,
AGED ABOUT 56 YEARS,
RESIDING AT NO.17, 33RD MAIN,
20TH CROSS, 6TH PHASE,
J.P.NAGAR,
BENGALURU - 560 078.
...RESPONDENTS
(BY SMT. PARVATHY R. NAIR, ADVOCATE FOR R1;
SRI. P. THULASIPATHI NAIDU, ADVOCATE FOR R3;
VIDE ORDER DATED:21/11/2024 NOTICE TO R2 SERVED,
UNREPRESENTED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC 1908
AGAINST THE JUDGMENT AND DECREE DATED 09.12.2019
PASSED IN OS.No. 6676/2013 ON THE FILE OF THE XX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY, DECREEING THE SUIT FOR PARTITION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-3-
NC: 2024:KHC:47343
RFA No. 1497 of 2021
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
ORAL JUDGMENT
This appeal filed by the appellant/defendant No.2 under
Section 96 of CPC., for setting aside the judgment and decree
passed by the XX Addl. City Civil & Sessions Judge (CCH-32),
Bangalore, in OS.No.6676/2013 dated 09.12.2019.
2. Counsel for the respondent No.3 present,
respondent No.2 though the counsel for respondent No.1
undertaken to file vakalath but not filed any vakalath, hence
respondent No.2 treated as served, unrepresented.
3. The rank of the parties before the Trial Court is
retained for the sake of convenience.
4. The case of the plaintiff before the Trial Court is
that the plaintiff filed a suit for partition and separate
possession seeking 1/5th share (1/4th share after death of the
1st defendant) in respect of house list No.147, new No.16 and
also house list No.59 situated at Adugodi village, Bangalore.
Notice was served on the defendant Nos.2 to 4, though
advocate appeared but not contest the matter. The defendant
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No.1 said to be deleted i.e., father of the plaintiff as well as
other three defendants. The Trial Court framed two points for
consideration and on behalf of the plaintiff, plaintiff examined
himself as P.W.1 and got marked 4 documents and after
hearing the arguments Trial Court granted the decree which is
under challenge.
5. The learned counsel for the appellant/ defendant
No.2 submits that though they appeared through their counsel
but not able to file the written statement. The plaintiff is a
brother of the present appellant, was not included in other two
properties, in respect of site No.27 and also the property
No.53, which was gifted by the 1st defendant in favour of the
2nd defendant. Subsequently, it was gifted in favour of the 3rd
defendant-Vinoda, this properties are not included in the
partition suit, since the partial partition is not maintainable.
And also contended, site No.27 was allotted to the plaintiff that
was not included, such being the case it is necessary for the
court to allow parties to file written statement and lead
evidence and frame the appropriate issues. Therefore, prayed
for setting aside the judgment by remitting back to the Trial
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Court for the purpose of filing written statement and leading
the evidence.
6. Per contra learned counsel for the
plaintiff/respondent No.1 though objects, the matter required
to be remitted back and request the court for time frame for
the dispose of the suit.
7. Having heard the arguments and perused the
records.
8. It is settled possession of law, partial partition is
not maintainable. And as per the contention of the appellant
/defendant No.2, the site No.27 said to be allotted to the
plaintiff which was not included in the schedule of the suit.
Apart from that site No.53 said to be gifted by the father of the
appellant i.e., 1st defendant-T.Gopal in favour of the 2nd
defendant. Subsequently one more gift deed executed by him
in favour of his daughter i.e., defendant No.3-Vinoda. These
facts are not brought before the court by the 2nd defendant in
the Trial Court. The case was decided as exparte and most of
the items of the properties are left over, such being the case
the partial partition is not maintainable. All the properties
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required to be included by the plaintiff and even an opportunity
is given to the defendant for contest the matter by filing the
written statement. Therefore matter required to remitted back
to the Trial Court for the fresh consideration. Hence the
following;
ORDER
The appeal is allowed in part.
The judgment and decree passed by the XX Addl. City
Civil & Sessions Judge (CCH-32), Bangalore, in
OS.No.6676/2013 dated 09.12.2019, is hereby set aside.
Matter is remitted back for fresh consideration.
Permitting the appellant and other defendants to file
written statement and also permitted the plaintiff to amend the
plaint if required and Trial Court shall frame necessary issues
and dispose the matter in accordance with the law.
The parties shall appear before the Trial Court and Trial
Court directed to secure the presence of other defendants on
09.12.2024 without any further notice.
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The observation made by this court shall not to be
influenced by the Trial Court.
The office is directed to return the original documents
filed by the appellant counsel by keeping the copy of the same.
Trial Court directed to dispose the matter as early as
possible, as it is one of the old case.
Sd/-
(K.NATARAJAN)
JUDGE
SRK
CT:SK
