Sri Balaganesha K vs Smt.K.Mallika
2024 Latest Caselaw 25173 Kant

Karnataka High Court

Sri Balaganesha K vs Smt.K.Mallika on 22 October, 2024

Author: K.Somashekar

Bench: K.Somashekar

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                                                         NC: 2024:KHC:42385-DB
                                                         RFA No. 2295 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 22ND DAY OF OCTOBER, 2024

                                             PRESENT

                              THE HON'BLE MR JUSTICE K.SOMASHEKAR

                                               AND

                               THE HON'BLE MR JUSTICE RAJESH RAI K

                         REGULAR FIRST APPEAL NO. 2295 OF 2023 (DEC)

                      BETWEEN:

                         SRI. BALAGANESHA K
                         S/O LATE S. KRISHNA
                         AGED ABOUT 44 YEARS
                         R/AT NO.939, 3RD A MAIN ROAD
                         E BLOCK, SUBRAMANYANAGAR
                         RAJAJINAGAR 2ND STAGE
                         BENGALURU-560 010.
                                                                  ...APPELLANT

                      (BY SRI. S.N.SATHYANARAYANA, SENIOR COUNSEL FOR
Digitally signed by       SRI. SURESH D DESHPANDE, ADVOCATE)
HARIKRISHNA V
Location: HIGH        AND:
COURT OF
KARNATAKA
                         SMT. K.MALLIKA,
                         W/O LATE S.KRISHNA,
                         AGED ABOUT 72 YEARS,
                         R/AT NO.939, 3RD MAIN ROAD,
                         E BLOCK, 2ND STAGE,
                         RAJAJINAGAR, BENGALURU-560 010.
                                                                ...RESPONDENT
                      (BY SRI. K.V.HIREMATH, ADVOCATE)

                           THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE
                      1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
                      24.06.2023 PASSED IN OS NO.8/2023 ON THE FILE OF XVI
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                                           NC: 2024:KHC:42385-DB
                                            RFA No. 2295 of 2023




ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU.,
DISMISSING THE SUIT FOR DECLARATION.

    THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:      HON'BLE MR JUSTICE K.SOMASHEKAR
            and
            HON'BLE MR JUSTICE RAJESH RAI K

                       ORAL JUDGMENT

(PER: HON'BLE MR JUSTICE K.SOMASHEKAR)

This appeal is directed against the judgment and decree

rendered by the XVI Additional City Civil and Sessions Judge,

in O.S.No.8/2023 dated 24.06.2023.

2. Heard the learned Senior counsel for the appellant,

namely Sri S.N. Sathyanarayana, so also the learned counsel

for the respondent namely Sri. K.V.Hiremath, in this matter.

Perused the impugned judgment and decree rendered by the

Court below.

3. Keeping in view the submission made by the learned

Senior counsel in this matter, it is deemed appropriate to refer

paragraph 17 of the impugned judgment and decree, wherein

the trial Court made an observation that the suit is a unique

case where this suit filed showing the defendants as Nil. Later

on the plaintiff got issued paper publication inviting objection, if

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any, but none appeared and hence, it is taken as defendants

are Nil. Here, the plaintiff again failed to prove on what basis

he filed the suit showing the defendants are Nil and he has not

disclosed any information as to whether any legal heirs are

there or not, which creates a cloud of doubts in the mind of the

Court. Therefore, on the basis of the facts and circumstances

of the case and the discussions therein, the trial Court opined

that firstly, the plaintiff failed to prove the will; secondly, he

has failed to prove on what basis he has filed the suit, showing

the defendants as 'Nil' in the case and thirdly, he has not

established his legal necessity to sell the suit schedule property

depicted therein.

4. Whereas in this matter, learned counsel for the

appellant has filed I.A.No.2/2023 under Order XLI Rule 27 r/w

Section 151 of the Code of Civil Procedure, 1908, seeking

permission to produce the additional documents for

consideration of the issues that emerged between the appellant

and respondent in O.S.No.8/2023.

5. However, the learned Senior counsel in this matter

submits that the short point that arises for consideration in this

appeal is regarding the 'Will'.

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6. Keeping in view paragraph 17 of the impugned

judgment and decree rendered by the Court below in respect of

O.S.No.8/2023 so also the reasons assigned in the application,

i.e., I.A.No.2/2023, it is deemed appropriate to state that the

judgment and decree dated 24.06.2023 rendered by the Court

below in O.S.No.8/2023 is hereby set aside and the appeal be

remitted back to the Court below.

7. Consequently, I.A.No.2/2023 is allowed by giving an

opportunity to the parties to the proceedings to decide the

issues in accordance with law.

8. In the meanwhile, the appellant herein, who is the

plaintiff in O.S.No.8/2023 be directed to proceed in accordance

with law to make the defendants as a parties to the

proceedings by giving them an opportunity to participate in the

proceedings to decide the issues.

9. A copy of the proceeding be directed to serve on the

defendants. All the contentions which are taken by them to be

considered in accordance with law.

10. Keeping in view the submission made by the

learned Senior counsel in this matter, it is deemed appropriate

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to direct the registry that if the trial Court record has been

received, the same shall be returned back to the Court below

forthwith.

11. The Court below is directed to expedite the matter

in accordance with law by giving an opportunity to both sides.

Sd/-

(K.SOMASHEKAR) JUDGE

Sd/-

(RAJESH RAI K) JUDGE

KTY