A first appeal against a trial court order dismissing a partition suit. The High Court dismissed the appeal, upholding the trial court's finding that the plaintiffs failed to prove their claim due to lack of evidence and the suit being barred by time and insutfficient court fee.
The appeal was dismissed as it lacked merit; the trial court decree was affirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF JULY, 2021
PRESENT
THE HON’BLE MRS. JUSTICE S. SUJATHA
AND
THE HON’BLE MR. JUSTICE E.S. INDIRESH
REGULAR FIRST APPEAL NO.1073 of 2016
BETWEEN:
Obalappa
Since dead by LRs.
All are R/at A K Colony Chikkabettahalli Village, Yelahanka Hobli Vidyaranayapura Post Bengaluru-560 097.
Krishnappa Since dead by LRs.
2
All 4 to 8 are R/at A K Colony Chikkabettahalli Village Yelahanka Hobli Vidyaranyapura Post Bengaluru-560 097.
…Appellants
(by Shri Pradeep Naik K, Advoate)
AND:
3
4
R/at Ramya Sadana No.1014, 3rd Floor 11th Main, RPC Layout 2nd Stage, Vijayanagar Bengaluru-560 040.
Both Respondent Nos.9 and 10 Are R/at No.28, Sai Nagar Ambabhavani Temple Road Vidyaranyaura Post Bengaluru-560 097.
5
Jayanagar VII Block West, Bengaluru-560 082.
…Respondents
(by Shri Jayakirthi M C, Advocate for R7)
This Regular First Appeal is filed under Section 96 of Civil Procedure Code against the judgment and decree dated 11.03.2016 passed in O.S. No.1522 of 2011 on the file of the IX Additional City Civil and Sessions Judge, Bengaluru, dismissing the suit for partition.
This appeal coming on for admission, this day, INDIRESH J., delivered the following:
JUDGMENT
Though appeal is listed for hearing on interlocutory
application seeking condonation of delay, with the consent of parties, the matter is taken up for final disposal.
6
7
8
9
10
11
with defendants 1 to 3 to make unjust gain and as such, the trial Court rightly dismissed the suit of the plaintiffs.
12
their case and on the other hand, defendant No.7 was examined as DW1. Except filing the plaint, no further steps have been taken by the plaintiffs to prove their case. Perusal of the finding recorded by the trial court would indicate that the schedule property is converted for non-agriculture purpose and now is in the jurisdiction of the Brihat Bengaluru Mahanagara Palike. Nature of the land itself is changed long back and sites have been formed in the schedule property and same is alienated in favour of the purchasers, who in turn, have sold the sites in favour of defendants and their ancestors. Suit is filed in the year 2007 challenging sale deeds dated 25th October, 1925, 22nd January, 1951, 07th June, 1975 and 07th January, 1985. No explanation is found in the plaint relating to delay in challenging these sale deeds. In the suit, plaintiffs have impleaded defendants 4 to 14, who are the subsequent purchasers, and perusal of evidence of DW1 substantiate the fact that the contesting defendants are in the settled possession of the property and long back buildings have been put up in the suit schedule property after obtaining permission from the competent authority. It is to be noted that the defendants 1 to 3 have not contested the matter on merits,
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and considering the conduct of the parties, inter alia, the plaintiffs having failed to prove the averments made in the plaint by adducing oral and documentary evidence before the trial Court, we are of the opinion that the finding recorded by the trial Court dismissing the suit is just and proper.
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by the trial Court substantiate the fact that the plaintiffs have not contested the case nor adduced any evidence before the trial Court and in that view of the matter, we find substance in the arguments advanced by the learned counsel appearing for respondent No.7 on merits of the case and also no infirmity is found in the impugned judgment and decree passed by the trial Court. The reasons assigned by the trial Court on issues No.6 and 7 is in accordance with law, as the plaintiffs fail to prove their case, as narrated above. In the result, appeal deserves to be dismissed as having no merit, accordingly, dismissed.
Sd/JUDGE
Sd/JUDGE
lnn
3 issues framed by the court
Whether the suit is barred by time?
Whether the plaintiffs paid sufficient court fee given the change in land nature?
Whether the plaintiffs are entitled to reliefs claiming partition of joint Hindu Undivided Family property?
2 provisions across 2 enactments
Narasimamurthy S/o late Obalappa
Lakshmidevi D/o late Obalappa
Saraswathi S/o late Obalappa
Smt. Manjamma W/o late Krishnappa
Smt. Mamath D/o late Krishnappa
Sri Santhosh S/o late Krishnappa
E.S. INDIRESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
