Karnataka High Court
Sri P Nesamony vs Sri Ramaiah on 7 July, 2025
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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RFA No. 866 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL NO. 866 OF 2017 (PAR)
BETWEEN:
SRI. P.NESAMONY
S/O. K.PUNNU NADAR,
AGED ABOUT 63 YEARS,
R/AT 21, SHALOM COTTAGE,
5TH 'G' CROSS, P & T LAYOUT,
HORAMAVU, BANGALORE-560 043.
...APPELLANT
(BY SRI. DR.PRAJWAL ARADHYA., ADVOCATE FOR
SRI. S.KALYAN BASAVARAJ., ADVOCATE)
AND:
1. SRI. RAMAIAH
S/O LATE MUNISWAMAPPA,
AGED ABOUT 87 YEARS,
Digitally signed by
SINCE DEAD BY LR'S OF
THEJAS KUMAR N THE R4 IS ALREADY ON RECORD
Location: HIGH R2 TO 4
COURT OF
KARNATAKA
2. SMT. BHAGYALAKSHMI
D/O. M.RAMAIAH,
AGED ABOUT 41 YEARS,
3. SMT. MANJULA
D/O. M.RAMAIAH,
AGED ABOUT 38 YEARS,
4. SMT. GIRIJA
D/O. M.RAMAIAH,
AGED ABOUT 33 YEARS,
-2-
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RFA No. 866 of 2017
HC-KAR
RESPONDENTS 1 TO 4 ARE
R/AT HORAMAVU VILLAGE,
BANASWADI POST,
BENGALURU-560 043.
...RESPONDENTS
(R2 TO 4 ARE SERVED AND UNREPRESENTED;
R2 TO 4 ARE LR'S OF DECEASED R1-V/O DATED:07.07.2025 )
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF THE CPC.
THIS REGULAR FIRST APPEAL IS LISTED FOR ORDERS,
THIS DAY, AN ORDER IS MADE AS UNDER:
ORAL ORDER
Sri.Prajwal Aradhya., counsel on behalf Sri.S.Kalyan
Basavaraj., for the appellant has appeared in person.
Notice to the respondents was ordered on 30.07.2018. A
perusal of the office note depicts that respondents 2 to 4 are
served and unrepresented. They have neither engaged the
services of an advocate nor conducted the case as a party in
person.
2. The short facts are these:
The plaintiffs filed a suit against their father Ramaiah in
O.S.No.15923/2003 on the file of XXVIII Addl. City Civil and
Sessions Judge, Mayo Hall, Bengaluru seeking partition and
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separate possession. On the trial of the action, the Trial Court
vide Judgment and Decree dated 29.06.2009 decreed the suit.
The appellant has assailed the Judgment and Decree of the
Trial Court in this appeal on several grounds as set-out in the
memorandum of appeal.
3. Counsel for the appellant in presenting his
arguments strenuously urged that the suit filed by the plaintiffs
against their father seeking partition and separate possession is
a collusive suit. He contended that the father Ramaiah had sold
the property in favor of the appellant herein prior to filing of the
suit and the appellant being the pre-suit purchaser was not
made as a party to the original suit. He argued by saying that
the Division Bench of this Court in R.F.A.No.686/2017 C/w.
759/2017 has set-aside the Judgment and Decree dated
29.06.2009 in O.S.N.15923/2003 and the Final Decree dated
19.03.2016 in F.D.P.No.25001/2010 and the suit in
O.S.No.15923/2003 was restored. Counsel further submits that
after the remand, the suit has been dismissed for non-
prosecution. Counsel therefore, submits that an appropriate
order may be passed.
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4. Heard the arguments and perused the appeal
papers with care.
5. It is not in dispute that the plaintiffs filed a suit
against their father seeking partition and separate possession.
Suffice it to note that Ramaiah - the father had sold the
property in favor of the appellant herein before filing of the
suit. Though the appellant was pre-suit purchaser, he was not
made as a party to the proceedings in O.S.No.15923/2003.
However, the Trial Court decreed the suit and granted share.
This is unsustainable in law. The appellant was pre-suit
purchaser and the property was not available for partition.
Moreover, after the remand, the suit has been dismissed for
non-prosecution. A perusal of the E-court status of
O.S.No.15923/2003 reflects that after the remand, the
plaintiffs did not appear before the Trial Court and hence, the
suit has been dismissed for non-prosecution on 08.03.2019.
The Judgment and Decree dated 29.06.2009 passed by
the XXVIII Addl. City Civil and Sessions Judge, Mayo Hall,
Bengaluru in O.S.No.15923/2003 is set-aside.
6. Resultantly, the Regular First Appeal is allowed.
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Because of the disposal of the appeal, the pending
interlocutory applications if any are disposed of.
Sd/-
(JYOTI MULIMANI)
JUDGE
MRP
