Karnataka High Court
M/S. Ds & Jaks Constructions vs Smt. Vanitha on 3 September, 2024
-1-
NC: 2024:KHC:35913-DB
RFA No. 1 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 1 OF 2018 (PAR)
Between:
M/s. DS & JAKS Constructions
A Partnership Firm,
Having principal place of business,
At Plot No.201, 2nd Floor,
Green Glen Layout,
Outer Ring Road,
Bellandur, Bengaluru-560 103,
Represented by its Managing Partner,
Sri. D. Srinivas
Digitally signed by Presently having its Office at
VEERENDRA
KUMAR K M No.92, Dar Al Salamm,
Location: HIGH 3rd Floor, Green Glen Layout,
COURT OF Bellandur, Bengaluru-560 103.
KARNATAKA ...Appellant
(By Sri. C.M.Nagabushana, Advocate)
And:
1. Smt. Vanitha
Aged about 33 years,
D/o. H.Chandrappa,
W/o. N.Muniyappa Reddy,
R/at Chikkatoguru Village,
Electronic City Post,
Bengaluru-560 100.
-2-
NC: 2024:KHC:35913-DB
RFA No. 1 of 2018
2. Smt. C. Kavya
Aged about 30 years,
D/o. H.Chandrappa,
W/o. Mohan Kumar,
R/at No.190, Himagiri Villas,
G Cross, At and Post Gottigere,
Bannerghatta Road,
Bengaluru-560 083.
3. Kum. K.C.Neetha
Aged about 26 years,
D/o. H.Chandrappa,
R/at Srinidhi Enclave,
A Block PH-3,
Kammanahalli Main Road,
SOS Post, Bengaluru-560 076.
4. H. Chandrappa
Aged about 61 years,
S/o. Honnappa,
R/at Srinidhi Enclave,
A Block PH-3,
Kammanahalli Main Road,
SOS Post, Bengaluru-560 076.
...Respondents
(By Sri. S.Nagaraja, Advocate for R1 to R3;
Sri. H.V.Praveen Gowda, Advocate for R4)
This RFA is filed under section 96 of CPC filed against the
judgment and decree dated 23.09.2017 passed in
O.S.No.2901/2016 on the file of the LXIII Additional City Civil
and Sessions Judge (CCH-64) at Bengaluru, partly decreeing
the suit for partition and separate possession.
This RFA, coming on for final hearing, this day, judgment
was delivered therein as under:
-3-
NC: 2024:KHC:35913-DB
RFA No. 1 of 2018
CORAM: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
and
HON'BLE MR JUSTICE UMESH M ADIGA
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR)
This appeal is preferred against the preliminary
decree dated 23.09.2017 passed in O.S. 2901/2016 on the
file of Additional City Civil and Sessions Judge (CCH-64),
Bengaluru.
2. The plaintiffs are all the daughters of one
H.Chandrappa who is defendant No.1 in the suit. In the
plaint it is stated that on 05.08.1965 there took place a
partition among Venkatappa, Honnappa, Gullappa and
Narayanappa. Honappa, Gulappa and Narayanappa are
sons of Venkatappa. Thereafter on 15.12.1999 there was
a partition among Honappa and his three sons. All the
plaint schedule properties fell to the share of Chandrappa,
i.e., the first defendant. By virtue of Karnataka
Amendment to the Hindu Succession Act coming into
effect from July 30, 1994, they became co-parceners and
NC: 2024:KHC:35913-DB
thus they were entitled to a share. The allegation is that
Honnappa and his sons entered into a joint development
agreement with second defendant on 08.08.2013 in
respect of item No.5 of the plaint schedule without the
knowledge of the plaintiffs and therefore they stated that
since they were co-parceners by that time, joint
development agreement did not bind their interest. On
this premise they sought partition in the plaint schedule
properties and also a declaration that the joint
development agreement dated 08.08.2013 was void and
did not bind their interest.
3. The defendants did not appear before the trial
court and therefore the trial court based on the materials
placed by the plaintiffs partly decreed the suit by holding
that the plaintiffs were entitled to 1/4th share in the plaint
schedule properties and the joint development agreement
dated 08.08.2013 did not bind their interest. A decree of
permanent injunction was issued against defendant No.2
restraining it from acting on the joint development
NC: 2024:KHC:35913-DB
agreement dated 08.08.2013 in respect of item No.5 of
the plaint schedule property. Aggrieved by the judgment,
defendant No.2 has preferred this appeal.
4. We have heard the arguments of Sri
C.M.Nagabushana, learned counsel for the
appellant/defendant No.2 and Sri S.Nagaraja, learned
counsel for respondents 1 to 3. Sri Praveen Gowda,
learned counsel for respondent No.4, submits that he has
returned the brief to his client. But respondent No.4 has
not engaged any another counsel.
5. It is the argument of Sri C.M.Nagabushana that
summons was not served on the second defendant and
that was the reason for second defendant being not able
to appear before the trial court and contest the suit. In
this view, defendant No.2 is to be given an opportunity to
contest the suit. He further submits that though
defendant No.2 has no grievance for allotting 1/4th share
in the plaint schedule properties except item No.5, so far
as item No.5 is concerned, based on a joint development
NC: 2024:KHC:35913-DB
agreement executed by first defendant, his brothers and
father, it has developed item No.5 of the plaint schedule
and now there has come up an apartment. It is alleged
that the first defendant was defrauded by his brothers. In
that view, the brothers of the first defendant should have
been made parties to the suit. In their absence suit
cannot be decided and therefore the suit is bad for non-
joinder of necessary parties. With these contentions he
prays for allowing the appeal.
6. It is the submission of Sri S.Nagaraja that the
second defendant has constructed extra 10,000 square
feet in the guise of having purchased TDR and it is the
intention of the defendants to exclude the plaintiffs from
claiming share in the construction that has come up in the
extra 10,000 square feet area.
7. Having considered the arguments, we are of the
opinion that the actual dispute lies in sharing the
additional construction that has come up in 10,000 square
feet by making use of TDR said to have been purchased by
NC: 2024:KHC:35913-DB
the second respondent. Any how we find that the second
respondent did not appear before the trial court and
contest because according to the second defendant
summons was not served. The first defendant also did not
contest the suit. In this view, we are of the opinion that
the defendants are to be given an opportunity to contest
the suit. Therefore the following :
ORDER
(i) Appeal is allowed.
(ii) The judgment dated 23.09.2017 passed in
O.S. 2901/2016 on the file of Additional City
Civil and Sessions Judge (CCH-64),
Bengaluru, is set aside.
(iii) The matter is remanded to the trial court for
decision in accordance with law.
(iv) The parties shall appear before the trial court
on 01.10.2024. Defendants No.1 and 2 are
given an opportunity to file written
statement on 01.10.2024 itself.
NC: 2024:KHC:35913-DB
(v) The second defendant shall pay costs of
Rs.5,000/- to the plaintiffs.
The trial court shall expedite the disposal of the suit
and the parties are directed to cooperate with the court for
disposal of the suit at the earliest point of time.
Registry of this court is directed to send back the
records to the trial court forthwith along with a copy of
this judgment.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
CKL
