Karnataka High Court
Sri Chikkaramaiah vs Smt. Dalamma @ Daligamma on 28 October, 2024
Author: K.Somashekar
Bench: K.Somashekar
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RFA No. 1011 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH 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. 1011 OF 2021 (PA/DE/IN)
BETWEEN:
1. SRI CHIKKARAMAIAH
S/O LATE SIDDARAMAIAH
AGED 68 YEARS
R/AT NO.1405
1ST B MAIN ROAD, II FLOOR, NEAR
ADICHUNCHUNAGIRI MUTT
VIJAYANAGAR
BENGALURU - 560 040.
Digitally 2. SMT. RANGAMMA
signed by W/O THIMMAIAH
SUMATHY
KANNAN D/O LATE SIDDARAMAIAH
Location: High AGED 72 YEARS
Court of R/AT NO.104, INDIRA COLONY
Karnataka DABASPET, BEHIND GOVT. HOSPITAL
SOMPURA HOBLI
NELAMANGALA TALUK - 562123.
3. SMT. SIDDAGANGAMMA
W/O NARASIMHAIAH
D/O LATE SIDDARAMAIAH
AGED 62 YEARS
R/O KEMPUSAGARA VILLAGE AND POST
SATANUR HOBLI
MAGADI TALUK
RAMANAGAR DISTRICT - 562 120.
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RFA No. 1011 of 2021
4. SMT. SIDDALINGAMMA
W/O RAMANJANAPPA
D/O LATE SIDDARAMAIAH
AGED 57 YEARS
R/AT NO.10/1
5TH MAIN, 2ND 'G' CROSS
A K COLONY, SULTANPALYA
R T NAGAR POST
BENGALURU - 560 032.
...APPELLANTS
(BY SRI. VIJAYA SHEKARA GOWDA V - ADVOCATE)
AND:
1. SMT. DALAMMA @ DALIGAMMA
W/O LATE SIDDARAMAIAH
AGED 94 YEARS
R/O HAGALAGUPPE VILLAGE
SORPPURA HOBLI
NELAMANGALA TALUK-562 123.
SINCE DEAD REP. BY LRs'
APPELLANTS 1 TO 4
AND RESPONDENTS NO.2 & 3.
2. SRI MUNIRAMAIAH
S/O LATE SIDDARAMAIAH
AGED 74 YEARS
R/O HAGALAGUPPE VILLAGE
SOMPURA HOBLI
NELAMANGALA TALUK - 562 123.
3. SRI DODDARAMAIAH
S/O LATE SIDDARAMAIAH
AGED 70 YEARS
R/O HAGALAGUPPE VILLAGE
SOMPURA HOBLI
NELAMANGALA TALUK - 562 123
PRESENTLY RESIDING AT
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RFA No. 1011 of 2021
NEAR SIDDALINGESHWARA
SAMUDAYA BHAVANA
SONDEKOPPA ROAD
NELAMANAGALA TOWN
NELAMANGALA TALUK - 562 123.
...RESPONDENTS
(BY SRI. MALLIKARJUN N K - ADVOCATE FOR SRI. A SAMPATH
- ADVOCATE FOR RESPONDENT NO.2, SRI. N NARASIMHA -
ADVOCATE FOR RESPONDENTS NO.1 & 3; VIDE COURT ORDER
DATED 05.01.2024, APPELLANTS NO.1 TO 4 AND
RESPONDENTS NO.2 & 3 ARE TREATD AS LRs' OF DECEASED
RESPONDENT NO.1)
THIS RFA FILED UNDER SECTION 96 R/W ORDER 41
RULES 1 AND 2 OF CODE OF CIVIL PROCEDURE 1908,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
17.09.2021 PASSED IN OS.NO.565/2019 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC., AT NELAMANGALA, AND
REVERSE THE FINDINGS OF THE TRIAL COURT GIVEN BY IT'S
ON ALL POINTS THERETO AND FURTHER BE PLEASED TO
DECREE THE SUIT FILED BY THE PLAINTIFFS/APPELLANTS
WITH COST.
THIS RFA, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
AND
HON'BLE MR JUSTICE RAJESH RAI K
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RFA No. 1011 of 2021
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE K.SOMASHEKAR)
This appeal is preferred by the appellants being
aggrieved by the judgment and decree in
O.S.No.565/2019 dated 17.09.2021 passed by the Senior
Civil Judge and JMFC at Nelamangala.
2. Learned counsel Sri Vijaya Shekara Gowda.V for
appellants is present before the Court physically. Learned
counsel Sri Mallikarjun N.K appears on behalf of learned
counsel Sri A.Sampath who is on record for respondent
No.2. Learned counsel Sri N.Narasimha for respondent
Nos.1 and 3 is on record.
3. Factual matrix of the appeal are as under:
Proceeding in O.S.No.565/2019 was initiated by
plaintiffs against defendants relating to the suit schedule
properties depicted therein. The said proceedings came to
be dismissed on 17.09.2021 and the said judgment and
decree is challenged under this appeal by urging various
grounds.
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4. Learned counsel for appellants has taken us
through the facts of the case that 1st plaintiff is the 3rd
son, 2nd plaintiff is the 1st daughter, defendant No.2 is the
1st son, defendant No.3 is the 2nd son, plaintiff No.3 is the
2nd daughter and plaintiff No.4 is the 3rd daughter of 1st
defendant - Smt Dalamma and late Siddaramaiah. Thus,
plaintiffs and defendants - 2 and 3 are children of late
Siddaramaiah and 1st defendant Smt Dalamma @
Daligamma, the plaintiffs submit that, the suit schedule
properties are the ancestral and joint family property of
the plaintiffs and defendants and they are in joint
possession and enjoyment of the suit schedule property
item No.1 and 2 which are not at all divided among them
by metes and bounds.
5. Learned counsel for appellants submits that during
lifetime of the propositus Siddaramaiah, who purchased
suit item No.1 in Sy.No.12/1 measuring 1 acre 19 guntas
of Hagalaguppe village, in the name of 1st defendant under
a registered sale deed dated 16.03.1967 vide sale deed
Reg.No.3929/1966-67, purchased from Bylappa S/o
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Chakkalada Ramaiah for a valuable sale consideration and
the said consideration has been paid by the propositus
Siddaramaiah out of the joint family funds. He further
submits that the trial Court ought not to have come to
conclusion that the suit has been dismissed for default
against the defendants Nos.1 and 3 and all necessary
parties are not participated and in absence of necessary
parties before the Court, partition suit cannot be decreed.
But the Court below has come to conclusion that the
plaintiffs have proved their case and entitled for partition
but in absence of defendant Nos.1 and 3 suit cannot be
decided and there was no legal impediment to decree the
suit even in absence of defendant Nos.1 and 3 as they are
also joint family members and their shares would have
been declared by the Court but not done so. These are
the grounds urged by the learned counsel for appellants
seeking to set aside the decree passed by the Court below.
6. Respondent Nos.1 and 3 have secured service of
counsels but their counsels are not present before the
Court to counter their arguments. Keeping in view the
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doctrine of Audi alteram partem, opportunity of being
heard must be given to both parties in the civil lis but no
opportunity has been given. However, in the given
peculiar facts and circumstances of this case and so also
without expressing any opinion of merits of the case, it
requires intervention to look into the grounds urged in the
appeal. Wherein, appeal is nothing but continuity of the
proceedings. It requires re-visiting of the impugned
judgment and decree rendered by the Court below for
decide their issues based upon their contention.
Accordingly, we proceed to pass the following:
ORDER
Appeal is hereby allowed.
Consequently, judgment and decree rendered by the
Court of Senior Civil Judge and JMFC at Nelamangala in
O.S.No.565/2019 dated 17.09.2021 is set-aside.
Consequent upon setting aside the said judgment and
decree, the matter is remitted back to the aforesaid Court
for adjudication. However, the Court below is directed to
give an opportunity to both the parties to the aforesaid
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proceedings and both the parties to lead their evidence to
prove their case.
All contentious contentions are kept open.
Parties are directed to keep present before the
aforesaid trial Court on 02.12.2024.
Registry is directed to send back the records to the
Court below, forthwith.
Sd/-
(K.SOMASHEKAR)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
RJ
