Karnataka High Court
Sri. K. Krishnaswamy vs Venkatachalaiah on 14 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MSA No. 24 of 2015
C/W RSA No. 836 of 2015
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
MISCELLANEOUS SECOND APPEAL NO.24 OF 2015 (RO)
C/W
REGULAR SECOND APPEAL NO.836 OF 2015
IN MSA NO.24/2015:
BETWEEN:
1. SRI. K.V.JAYARAM,
AGED ABOUT 65 YEARS,
S/O LATE SRI. VENKATACHALAIAH,
R/AT NO.5, 1ST CROSS,
MEI COLONY, BAGALKUNTE,
BENGALURU-43.
2. SRI. K.V .NARASIMHA MURTHY,
Digitally signed AGED ABOUT 60 YEARS,
by DEVIKA M S/O LATE SRI. VENKATACHALAIAH,
Location: HIGH R/AT NO.107, 4TH CROSS,
COURT OF CANARA BANK COLONY,
KARNATAKA NAGARABHAVE,
BENGALURU-72.
3. SMT. BHAGYAMMA,
AGED ABOUT 58 YEARS,
D/O LATE SRI. VENKATACHALAIAH,
R/AT MUDUVADI VILLAGE,
KOLAR DISTRICT-563101.
4. SMT. K.V. INDIRANI,
AGED ABOUT 58 YEARS,
D/O LATE SRI. VENKATACHALAIAH,
W/O SRI. S. RAMACHANDRA,
R/AT NO.31/32, 2ND CROSS,
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MARIYAPPANA PALYA,
BENGALURU-80.
...APPELLANTS
(BY SRI. G.PAPI REDDY, SENIOR COUNSEL FOR
SRI. VARUN PAPIREDDY, ADVOCATE)
AND:
1. SMT. GIRIJAMMA,
AGED ABOUT 78 YEARS,
W/O LATE SRI K.V.VENKATANARAYANA,
R/AT NO.58/2, 5TH CROSS ROAD,
ROBERTSONPET, KGF-122.
SINCE DEAD BY LRS,
R2 TO R9 ARE LRS OF RESPONDENT NO.1.
2. SRI K.V. VENKATACHALAPATHY,
AGED ABOUT 59 YEARS,
S/O LATE SRI K.V. VENKATANARAYANA,
R/AT KADIRIPURA VILLAGE & POST,
VIA BETHAMANGALA,
BANGARPET-563114.
3. SRI K.V. JAGADISH,
AGED ABOUT 51 YEARS,
S/O LATE SRI K.V. VENKATANARAYANA,
R/AT NO.85/2, 5TH CROSS ROAD,
ROBERTSONPET, KGF-122.
4. SRI K.V. PARTHASARATHY,
AGED ABOUT 43 YEARS,
S/O LATE SRI. K.V. VENKATANARAYANA,
R/AT NO.85/2, 5TH CROSS ROAD,
ROBERTSONPET, KGF-122.
5. SRI K.V. SRINIVASA,
AGED ABOUT 40 YEARS,
S/O LATE SRI K.V. VENKATANARAYANA,
R/AT NO.85/2, 5TH CROSS ROAD,
ROBERTSONPET, KGF-122.
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6. SRI K.V. VIDYASHANKARA,
AGED ABOUT 36 YEARS,
S/O LATE SRI K.V. VENKATANARAYANA,
R/AT NO.85/2, 5TH CROSS ROAD,
ROBERTSONPET, KGF-122.
7. SMT. K.V. RAMAMANI,
AGED ABOUT 48 YEARS,
D/O LATE SRI K.V. VENKATANARAYANA,
R/AT SAGANAHALLI VILLAGE,
KYASAMBALLY HOBLI,
BANGARPET TALUK-563114.
8. SMT. K.V. SAVITHRI,
AGED ABOUT 44 YEARS,
D/O LATE SRI K.V. VENKATANARAYANA,
R/AT NO.85/2, 5TH CROSS ROAD,
ROBERTSONPET, KGF-122.
9. SMT. K.V. LALITHA,
AGED ABOUT 38 YEARS,
D/O LATE SRI K.V. VENKATANARAYANA,
R/AT NO.85/2, 5TH CROSS ROAD,
ROBERTSONPET, KGF-122.
SRI K. KRISHNASWAMY,
DEAD BY HIS LRS.
10. SRI. K. MANJUNATH,
AGED ABOUT 52 YEARS,
S/O LATE KRISHNASWAMY.
11. SMT. RAJESHWARI,
AGED ABOUT 50 YEARS,
D/O LATE KRISHNASWAMY.
12. SRI. K. CHANDRASHEKAR
AGED ABOUT 47 YEARS,
D/O LATE KRISHNASWAMY.
13. SRI KODANDARAMA,
AGED ABOUT 45 YEARS,
S/O LATE KRISHNASWAMY.
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R10 TO R13 ARE
R/AT KADARIPURA VILLAGE,
KYASARNBALLI HOBLI,
BANGARPET TALUK,
KOLAR DISTRICT-563114.
14. SRI. S. VANKATESHAN,
AGED ABOUT 78 YEARS,
S/O LATE SRI V. SURAPPA.
15. SMT. S. MAHALAKSHMI @ LAKSHMI,
AGED ABOUT 58 YEARS,
D/O LATE SRI. V. SURAPPA,
W/O SRI. SRIDHAR.
16. SRI. S. RAMACHANDRA,
AGED ABOUT 76 YEARS,
S/O LATE SRI. V. SURAPPA.
R14 TO R16 ARE R/AT NO.3137,
2ND CROSS ROAD,
MARIYAPPANA PALYA,
BENGALURU - 80.
17. SRI. S. SUBRAMANAYAM,
AGED ABOUT 65 YEARS,
S/O LATE SRI V. SURAPPA.
18. S. SHESHADRI,
AGED ABOUT 60 YEARS,
S/O LATE SRI V. SURAPPA.
R17 AND R18 ARE R/AT NO.33-B,
20TH MAIN, 1ST R. BLOCK,
RAJAJINAGAR, BENGALURU-10.
19. SMT. VENKATALAKSHMAMMA,
AGED ABOUT 67 YEARS,
D/O LATE SRI. SRINIVASAIAH,
W/O K.V. JAYARAM,
20. SMT. PADMAVATHI,
AGED ABOUT 60 YEARS,
D/O LATE SRI. SRINIVASAIAH.
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21. SMT. KOMALA,
AGED ABOUT 55 YEARS,
D/O LATE SRI. SRINIVASAIAH.
22. SRI. B.PURUSHOTHAM,
AGED ABOUT 60 YEARS,
S/O LATE SRI SRINIVASAIAH.
R19 TO R22 ARE R/AT NO.290,
5TH MAIN, S.T. BED, KORAMANGALA,
BENGALURU-34.
23. BHAVANI,
D/O LATE K.V. VENKATANARAYANA,
W/O J.R.NAGARAJ,
AGED ABOUT 45 YEARS,
1ST CROSS, SANTHE MAIDANA,
KOLAR - 563101.
...RESPONDENTS
(BY SRI. P. RAGHAVAN, ADVOCATE FOR R3 TO R9 AND R23;
SRI. M.V. SESHACHALA, SENIOR COUSNEL FOR
SRI ARAVIND V. CHAVAN, ADVOCATE FOR R10 TO R13;
NOTICE TO R2 AND R14 TO R18 SERVED AND
UNREPRESENTED;
NOTICE TO R19 TO R22 IS DISPENSED WITH
VIDE ORDER DATED 04.10.2018;
R1 IS DEAD AND R2 TO R9 ARE TREATED AS LRS OF R1,
VIDE ORDER DATED 02.06.2022)
THIS MSA IS FILED UNDER ORDER XLI RULE 25 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
29.1.2015 PASSED IN R.A.NO.55/2011 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT, KGF, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED 11.04.2011 PASSED IN O.S.NO.127/2002 ON
THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND
JMFC, KGF, REMANDING THE CASE FOR LIMITATION
PURPOSE.
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IN RSA NO. 836/2015:
BETWEEN:
SRI. K. KRISHNASWAMY,
(DEAD) REP. BY HIS LRS.
1. SRI. K. MANJUNATH,
SON OF LATE KRISHNASWAMY,
AGED ABOUT 55 YEARS.
2. SMT. RAJESHWARI,
D/O LATE KRISHNASWAMY,
AGED ABOUT 53 YEARS.
3. SRI. K. CHANDRASHEKAR,
S/O LATE KRISHNASWAMY,
AGED ABOUT 51 YEARS.
4. SRI. KODANDARAMA,
S/O LATE KRISHNASWAMY,
AGED ABOUT 49 YEARS.
ALL ARE R/AT KADARIPURA VILLAGE,
KYASAMBALLI HOBLI, BANGARPET TALUK
KOLAR DISTRICT-563114.
...APPELLANTS
(BY SRI. M.V.SESHACHALA, SENIOR COUNSEL FOR
SRI. ARAVIND V. CHAVAN, ADVOCATE)
AND:
VENKATACHALAIAH,
(DEAD) REPRESENTED BY LRS.
1. SRI. K.V. JAYARAM,
S/O LATE SRI. VENKATACHALAIAH,
AGED ABOUT 69 YEARS,
R/AT NO.5, 4TH CROSS,
MEI COLONY, BAGALKUNTE,
BENGALURU-560072.
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2. SRI. K.V. NARASIMHA MURTHY,
S/O LATE SRI. VENKATACHALAIAH,
AGED ABOUT 64 YEARS,
R/AT NO.107, 4TH CROSS,
CANARA BANK COLONY,
NAGARABHAVI,
BENGALURU-563126.
3. SMT. BHAGYAMMA,
D/O LATE SRI. VENKATACHALIAH,
AGED ABOUT 72 YEARS,
RESIDING AT MUDAVADI VILLAGE,
KOLAR DISTRICT-563126.
4. SMT. K.V. INDIRANI,
D/O LATE SRI. VENKATACHALIAH,
W/O SRI. S. RAMACHANDRA,
AGED ABOUT 62 YEARS,
R/AT NO.31/32, 2ND CROSS,
MARIYAPPAN PALYA (GAYATHRINAGAR),
BENGALURU-560021.
K.V.VENKATANARAYANA (DEAD),
REPRESENTED BY LRS.
5. SMT. GIRIJAMMA,
W/O LATE SRI. K.V. VENKATANARAYANA,
SINCE DECEASED. REP. BY HER LRS.
RESPONDENTS NO.6 TO 14 ARE
ALREADY ON RECORD.
6. SRI. K.V.VENKATACHALAPATHY,
S/O LATE SRI. K.V.VENKATANARAYANA,
AGED ABOUT 63 YEARS,
R/AT KADIRIPURA VILLAGE AND POST,
VIA BETHAMANGALAL,
BANGARPET-563101.
7. SRI. K.V. JAGADISH,
SON OF LATE SRI. K.V.VENKATANARAYANA,
AGED ABOUT 55 YEARS,
R/AT NO. 85/2, 5TH CROSS ROAD,
ROBERTSONPET, KGF-563122.
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8. SRI. K.V.PARTHASARATHY,
S/O LATE SRI. K.V. VENKATANARAYANA,
AGED ABOUT 47 YEARS,
R/AT NO.85/2, 5TH CROSS ROAD,
ROBERTSONPET, K G F-563122.
9. SRI. K.V. SRINIVASA,
S/O LATE K.V.VENKATANARAYANA,
AGED ABOUT 44 YEARS,
R/AT NO.85/2, 5TH CROSS ROAD,
ROBERTSONPET, K G F - 563122.
10. SRI. K.V.VIDYASHANKARA,
S/O LATE SRI. K.V. VENKATANARAYANA,
AGED ABOUT 40 YEARS,
R/AT NO.85/2, 5TH CROSS ROAD,
ROBERTSONPET, K G F -563122.
11. SMT. BHAVANI,
D/O LATE SRI. K.V. VENKATARANAYANA,
W/O J.R. NAGARAJ,
AGED ABOUT 55 YEARS,
R/AT 1ST CROSS,
SANTHE MAIDANA,
KOLAR-563101.
12. SMT. K.V. RAMAMANI,
D/O LATE SRI. K.V. VENKATANARAYANA,
AGED ABOUT 52 YEARS,
R/AT SAGANAHALLI VILLAGE,
KYASAMBALLY HOBLI,
BANGARPET TALUK-622543.
13. SMT. K.V. SAVITHRI,
D/O LATE SRI. K.V. VENKATANARAYANA,
AGED ABOUT 48 YEARS,
R/AT NO.85/2, 5TH CROSS ROAD
ROBERTSONPET, K G F -563122.
14. SRI. K.V. LALITHA,
D/O LATE SRI. K.V. VENKATANARAYANA,
AGED ABOUT 42 YEARS,
R/AT NO. 85/2, 5TH CROSS ROAD,
ROBERTSONPET, K G F -563122.
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NARASAMMA (DEAD),
REPRESENTED BY LRS.
15. SRI. S. VENKATESHAN,
S/O LATE SRI. V. SURAPPA & NARASAMMA,
AGED ABOUT 82 YEARS.
16. SMT. S. MAHALAKSHMI @ LAKSHMI,
D/O LATE SRI. V. SURAPPA & SMT NARASAMMA,
AGED ABOUT 62 YEARS.
17. SRI. S. RAMACHANDRA,
S/O LATE SRI. V. SURAPPA & NARASAMMA,
AGED ABOUT 80 YEARS.
R16 TO R18 ARE R/AT NO.3137,
2ND CROSS ROAD,
MARIAPPANA PALYA, (GAYATHRINAGAR),
BENGALURU-560021.
18. SRI. S. SUBRAMANYAM,
S/O LATE SRI V. SURAPPA & NARASAMMA,
AGED ABOUT 69 YEARS.
19. SMT. S. SHESHADRI,
S/O LATE SRI. V. SURAPPA & NARASAMMA,
W/O SRI. SRIDHAR,
AGED ABOUT 64 YEARS.
R19 AND R20 ARE R/AT NO.33-B,
20TH MAIN, 1ST R. BLOCK, RAJAJINGAR,
BENGALURU-560010.
SARASAMMA (DEAD)
REPRESENTED BY LRS.
20. SMT. VENKATALAKSHMAMMA,
D/O LATE SRINIVASAIAH & SARASAMMA,
AGED ABOUT 71 YEARS,
C/O S. NAGESH,
NO.15, 1ST CROSS ROAD,
RAMAKRISHNA LAYOUT, MALAGALA,
NAGARABHAVI 2ND STAGE,
BENGALURU-560091.
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21. SMT. PAMAVATHI,
D/O LATE SRI. SRINIVASAIAH & SARASAMMA,
AGED ABOUT 69 YEARS.
22. SMT. KOMALA,
D/O LATE SRI, SRINIVASAIAH & SARASAMMA,
AGED ABOUT 66 YEARS,
C/O VANISHREE JAYARAM,
118, MAHATAM ENCLAVE,
ISTC, CTTB, GATE NEAR YMCA SCHOOL,
JABALPUR, MADHYA PRADESH-482001.
23. SRI. PURUSHOTHAM,
D/O LATE SRI SRINIVASAIAH & SARASAMMA,
AGED ABOUT 69 YEARS.
R21 AND R23 ARE R/AT NO.290,
5TH MAIN, S.T.BED, KORAMANAGALA,
BENGALURU-560034.
SMT. LAKSHMAMMA,
W/O LATE VENKATACHALAIAH,
SINCE DECEASED IN RA.NO.60/2011
LRS ARE ALREADY ON RECORD AS
RESPONDENT NOS.2 TO 5.
...RESPONDENTS
(BY SRI. G. PAPI REDDY, SENIOR COUNSEL FOR
SRI. VARUN PAPIREDDY, ADVOCATE FOR R1 TO R4;
SRI. P. RAGHAVAN, ADVOCATE FOR R7 TO R15 AND R23;
NOTICE TO R6, R17 TO R20 AND R22 -
SERVED AND UNREPRESENTED;
NOTICE TO R16 IS HELD SUFFICIENT,
VIDE ORDER DATED 20.07.2023;
NOTICE TO R21 IS DISPENSED WITH,
VIDE ORDER DATED 07.11.2024;
R5 IS DEAD AND R6 TO R14 ARE TREATED AS LRS OF R5,
VIDE ORDER DATED 07.11.2024)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 29.01.2015
PASSED IN R.A.NO.60/2011 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT, K.G.F., DISMISSING THE
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APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 11.04.2011 PASSED IN O.S.NO.127/2002 ON THE
FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC, K.G.F.
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellants and the
learned counsel for the respondents.
2. M.S.A.No.24/2015 is filed by defendants Nos.2 to
5 challenging the order of remand. R.S.A.No.836/2015 is
filed by the legal representatives of the plaintiff challenging
the confirmation of the order passed by the Appellate Court
rejecting the claim made before the Trial Court. However, the
Appellate Court remanded the matter for consideration in
respect of the counter claim.
3. The learned counsel for the appellants in
M.S.A.No.24/2015 would submit that the very remand is
erroneous and while remanding the matter, reason is given
that for proof of counter claim, there must be specific
properties and boundaries as per Order 8 Rule 6A and B of
CPC. The learned counsel would submit that when the
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defendants have claimed the counter claim in respect of the
suit schedule property is concerned, no need to make specific
properties. If they are entitled for a share in the property,
they are also equally entitled for a share among the other
sharers and hence the very question of remand does not
arise. The Appellate Court committed an error in remanding
the matter.
4. The learned counsel for the appellants in
R.S.A.No.836/2015 would vehemently contend that the
Appellate Court committed an error in confirming the order of
the Trial Court with regard to the rejection of the claim made
by the appellants and also erroneously proceeded to pass an
order to make a specific claim in respect of the specific
properties.
5. The learned counsel for defendants Nos.5 to 14
would contend that when the claim was made claiming 1/3rd
share out of the properties, in order to grant the relief also,
there must be specific boundaries. The learned counsel would
submit that three house properties are included in the plaint
and the same is not shown in Ex.D.94 and hence the
Appellate Court rightly remanded the matter.
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6. In reply to this argument, the learned counsel for
the appellants in M.S.A.No.24/2015 would contend that
Ex.D.94 is the document of grant order passed by the Special
Deputy Commissioner only in respect of the landed properties
and not in respect of the house properties. Hence, the
contention of the learned counsel for defendant Nos.5 to 14
cannot be accepted.
7. Having heard the learned counsel for the
appellants and the learned counsel for the respondents in
both the appeals and also considering the material available
on record, R.S.A.No.836/2015 is filed against the concurrent
finding of the Trial Court as well as the Appellate Court. The
very approach of the Appellate Court is erroneous in coming
to such a conclusion, and hence no need to even admit the
appeal and frame any substantial question of law. The First
Appellate Court has to consider the material available on
record, since the material available on record is sufficient and
the First Appellate Court committed an error in remanding the
matter and dismissing the appeal in R.A.No.60/2011.
However, passed an order setting aside the order of counter
claim granted by the Trial Court in remanding the matter for
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limited purpose under Order 41 Rule 23, 23A, 28, 33 of CPC
for proof of counter claim with specific properties and
boundaries as per Order 8 Rule 6A and B of CPC. The First
Appellate Court in paragraph No.31, extracted the properties
covered in Ex.D.94. Ex.D.94 is the grant order passed by the
Special Deputy Commissioner, since the land is an inam land
and when such order was passed, earlier survey numbers are
mentioned, but made the column against the said survey
numbers mentioning the properties covered in plaint and
decree are different survey numbers and hence made an
observation that the lands granted under Ex.D.94 are totally
different from the lands covered in the suit.
8. The learned counsel for the appellants would
vehemently contend that when the property was granted,
earlier survey numbers are given and when the property was
podded, re-numbers are given. Having perused paragraph
No.31, the Appellate Court made an observation that when
re-survey is conducted, the documentary evidence produced
to that effect is to be appreciated by the Trial Court. The
Appellate Court ought to have considered the earlier numbers
and also the subsequent new numbers are assigned after the
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phodi work and instead of that, an observation is made that
the Trial Court ought to have appreciated the same. The
Appellate Court also would have appreciated the same. The
other reason given by the Appellate Court is that in the
written statement, defendant Nos.1 and 2 have not specified
the schedule properties as per Order 7 Rule 3 of CPC read
with Order 8 Rule 6A and B of CPC to justify the counter
claim. 1976 Amendment: New Rules 6A to 6G have been
inserted making statutory provisions for admissibility of
counter claim. The defendant to enforce an independent
right, unconnected with the claim made in the plaint and not
intended to be a defence to the claim in the plaint. A counter
claim is to be treated, for all purposes for which justice
requires it to be so treated, as an independent action. In this
case, there is variation to the plaint schedule and counter
claim referring to the plaint schedule. The very observation
made is very erroneous and fails to take note of the fact that
when the land was granted by the Special Deputy
Commissioner, earlier survey numbers are mentioned and
when the phodi work was conducted, new numbers are
assigned. But observations are made that the documents and
decree engrossed with the schedule varies. The survey
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number and boundaries are inconsistent to the claim of
defendant Nos.1 to 5 compared with revenue documents,
exhibited in 'P' series and defence raised by defendant Nos.6
to 11 in oral and documentary evidence. The very
observation is also erroneous.
9. The learned counsel for the appellants also
brought to the notice of this Court that the defendants have
also not disputed the earlier order passed by the Special
Deputy Commissioner under Ex.D.94 and also even not
disputed with regard to the survey numbers are concerned
and only changes were made subsequent to the phodi work.
The Appellate Court also made an observation that it is
apparent in the admissions of P.W.1 to P.W.6 and in the
defence evidence. The defendants Nos.1 to 5 claimed counter
claim of 1/3rd share. When the Appellate Court made an
observation that defendants Nos.1 to 5 are claiming counter
claim of 1/3rd share, that is also in the properties which have
been mentioned in the schedule itself. When such counter
claim is made, the very reasoning of the Appellate Court that
it ought to have been made as specific claim is erroneous.
The question of making specific claim does not arise when
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1/3rd share is claimed and the same has to be considered only
at the time of considering the matter at the time of
adjudicating the same in a final decree proceedings and not at
the stage of claiming 1/3rd share with specific boundaries as
observed while remanding the matter invoking Order 41 Rules
23, 23A, 28 and 33 of CPC with regard to the proof of counter
claim. When the defendants have made the counter claim in
the suit schedule property, specific properties and boundaries
need not be necessary as observed by the Appellate Court
under Order 8 Rule 6A and B of CPC and the same has to be
considered only when apportioning the share of the respective
parties, if they succeed in the counter claim made by them
and the very approach of the Appellate Court is erroneous and
the matter requires to be set aside. The order passed by the
Appellate Court in allowing R.A.No.55/2011 and dismissing
R.A.No.60/2011 and also setting aside the order passed in
O.S.No.127/2002 is erroneous. The matter has to be
considered afresh in both the appeals considering the material
available on record and adjudicate the matter considering the
material already available on record. The reasoning assigned
by the Appellate Court in remanding the matter is not
sustainable in the eye of law.
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10. In view of the discussions made above, I pass the
following:
ORDER
(i) Both the appeals are allowed.
(ii) The matter is remitted back to the Appellate
Court to consider the matter afresh in view of
the observations made by this Court.
(iii) The respective parties are directed to appear
before the Appellate Court on 13.08.2025,
without expecting any notice from the
Appellate Court.
(iv) The Appellate Court is directed to dispose of
the matter within six months from 13.08.2025.
(v) The parties and their respective counsel are
directed to assist the Appellate Court in
disposal of the matter within a time bound
period of six months, since the suit is of the
year 2002 and the appeals are of the year
2011.
Sd/-
(H.P.SANDESH)
JUDGE
MD
