Dismissed

V Naveen v. Dr. N Venugopal

Karnataka HC16 Jul 2021RFA/16/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed an appeal arising from a partition suit. The court found the appellant lacked clean hands due to inconsistent stands regarding a prior partition suit and barred by limitation. The suit was held frivolous and devoid of merits.

What did the court decide?

The appeal was dismissed with no merit found, upholding the dismissal of the partition suit by the Trial Court.

V Naveen Vs Dr. N Venugopal — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JULY, 2021

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.F.A.No.16/2018

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BETWEEN :

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V.NAVEEN S/O Dr. N.VENUGOPAL AGED ABOUT 38 YEARS R/AT 3451, 5^TH CROSS, 10^TH MAIN, INDIRANAGAR 2^ND STAGE, BENGALURU-38. PRESENTLY R/AT FLAT NO.402, 4^TH FLOOR, ORCHID PARK, ELECTRONIC CITY PHASE-01 BENGALURU-560100 ...APPELLANT

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(BY SRI H.B.KHADRIPATHI, ADV.)

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AND :

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1 . Dr. N.VENUGOPAL S/O LATE G.NANJUNDA REDDY AGED ABOUT 72 YEARS R/AT NO.3451, 5^TH CROSS, 10^TH MAIN, INDIRANAGAR II STAGE, BENGALURU-560038

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2 . N.RAGHURAMA REDDY S/O LATE G.NANJUNDA REDDY, AGED ABOUT 85 YEARS R/AT NO.859, II STAGE INDIRANAGAR,

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BENGALURU-560038

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3 .	N.GURUMURTHY REDDY S/O LATE G.NANJUNDA REDDY AGED ABOUT 83 YEARS R/AT NO.628, 1^STMAIN, 1^STCROSS, 1^STSTAGE INDIRANAGAR BENGALURU-560038
4 .	N.KRISHNA REDDY S/O LAE G.NANJUNDA REDDY AGED ABOUT 77 YEARS R/AT NO.482, 2^NDMAIN, II STAGE, INDIRANAGAR, BENGALURU-560038
5 .	N.KUMAR REDDY S/O LATE G.NANJUNDA REDDY, AGED ABOUT 75 YEARS R/AT NO.1132, 1^STMAIN, 1^STCROSS, 1^STBLOCK, HAL III STAGE, NEW THIPPASANDRA BENGALURU-560075
6 .	V.PRAVEEN S/O Dr. N.VENUGOPAL AGED ABOUT 37 YEARS R/AT NO.3451, 5^THCROSS, 10^THMAIN, INDIRANAGAR II STAGE BENGALURU-560038
7 .	M/s CHAPARAL HEALTH SERVICES LTD., REP BY DIRECTOR D.A.SRINIVASAN NO.17, SANKEY ROAD, BENGALURU-560038.
8 .	M.SRINIVASA MOORTHY S/O MUNIVENKATASWAMAPPA AGED ABOUT 53 YEARS R/AT NO.120, ELEPHANT ROAD, JAYANAGAR, BENGALURU-560011
9 .	M/s CHAITANYA PROPERTIES LTD., REP. BY ITS DIRECTOR NO.17, SANKEY ROAD,

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BENGALURU-560020 …RESPONDENTS

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(BY SRI S.SRINIVASA MURTHY, ADV. FOR R-7 TO R-9; R-1 TO R-4 & R-6 ARE SERVED;

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NOTICE TO R-5 HELD SUFFICIENT VIDE COURT ORDER DATED 07.01.2019.)

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THIS R.F.A. IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 13.09.2017 PASSED IN O.S.NO.885/2010 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE (R) DISTRICT, BANGALORE, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL COMING ON FOR HEARING, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is directed against the judgment and

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decree dated 13.09.2017 passed in O.S.No.885/2010 by the II Addl. Senior Civil Judge, Bangalore Rural District, Bangalore (‘Trial Court’ for short).

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For the sake of convenience the parties are

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referred to as per their status before the Trial Court.

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The plaintiff filed the suit against the

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defendant for partition and separate possession of his 1/3^rd share out of 1/5th share in the suit schedule property and for separate possession. On amendment of

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plaint, the plaintiff sought for a declaration that the sale deed dated 14.02.2011 executed by defendant Nos.7 and 8 in favour of defendant No.9 is not binding on him.

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The subject mater of the suit property is all that piece and parcel of the property bearing Sy.No.31/2 measuring 5 acres 20 guntas situated at Sonnenahalli Village, K.R.Pura Hobli, Bangalore East Taluk, bounded on the East by: Sonnenahalli Tank Bed; West by: Road leading to Sy.No.31/2 and property bearing Sy.No.31/1; North by: Property bearing Sy.No.32/1; South by: Property bearing Sy.No.30.

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The plaint averments are that the suit property was purchased from the joint family funds in the name of Smt.Meenakshamma W/o Sri.Nanjunda Reddy, mother of defendant Nos.1 to 5 and grand mother of plaintiff and defendant No.6 under an absolute sale deed dated 21.2.1963 and registered in the office of the Sub Registrar, Bangalore South Taluk.

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All the revenue records were made out in the name of Smt.Meenakshamma for and on behalf of the joint Hindu Undivided Family and the joint family was exercising the rights of ownership and were in joint possession and enjoyment of the suit schedule property. The Joint Hindu Undivided family intended to start a brick factory in the suit schedule property and accordingly applied for a change in land use and the authorities concerned granted permission for change of land use from agricultural to non agricultural-brick industry vide Conversion Certificate dated 11.1.1974 and since then the Joint Hindu Undivided Family has been running a brick industry in the suit schedule property. Smt.Meenakshamma died on 6.11.2004 leaving behind the defendant Nos. 1 to 5 as her sons who have succeeded to the suit schedule property and continued in Joint Hindu Undivided Family as such no division or partition was effected between the defendant Nos.1 to 5. After the demise of Smt.Meenakshamma, the

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revenue records were made out jointly in the name of the defendant Nos.1 to 5 vide M.R.No.1 of 1990-91. The plaintiff and defendant No.6 are the sons of defendant No.1. They are the coparceners and members of the Joint Hindu Undivided Family and as such there was no division or partition effected between the plaintiff and the defendant Nos.1 to 6 in respect of suit schedule property and they are in joint possession and enjoyment of the suit schedule property. When defendant Nos.1 to

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6 were making hectic efforts to alienate the suit schedule property to the defendant Nos.7 and 8 during

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2^nd week of August 2010, the plaintiff demanded for partition in respect of the suit schedule property for which defendant Nos. 1 to 6 assured that they would effect partition but refused to implement the same. As the plaintiff is a coparcener, he is entitled to a share in the suit schedule property. Subsequently, the plaintiff amended the plaint and claimed that the sale deed dated 14.02.2011 executed by defendant Nos.1 and 7 in

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favour of defendant No.9 is not binding on him. The defendant Nos.7 and 8 claiming to be a General Power of Attorney holder of defendant Nos.1 to 5 have executed sale deed in favour of defendant No.9 which is not valid. Hence, the defendant No.9 has not acquired any right on the basis of the said sale deed. On these grounds suit was filed praying to decree the suit.

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On service of notice, the defendant Nos.7

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and 8 appeared and filed written statement setting up the defence that the suit is not maintainable. It was contended that the suit was filed in respect of the property which was already sold. Partition was effected in the family of defendant Nos.1 to 5 as far back as on 5.2.1974. Sons of Smt.Meenakshamma-defendant Nos.1 to 5 got 1 acre 4 guntas each in the suit schedule property. The defendant No.1 has executed a General Power of Attorney and sale agreement in respect of his share in favour of respondent No.8. At the time of said

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General Power of Attorney, the defendant Nos.1 to 5 had received Rs.16,00,000/- each in respect of their share. O.S.No.801/2010 was filed by the plaintiff, his father defendant No.1 and defendant No.6 wherein, the plaintiffs have admitted the partition in the suit schedule property. It was contended that the frivolous suit has been filed to harass the defendant Nos.7 and 8.

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On the basis of the pleadings, issues were

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framed by the Trial Court as under:

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Whether the plaintiff prove that himself and defendant Nos.1 to 6 have constituted a Joint Hindu Undivided Family?

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Whether plaintiff proves that himself and defendant Nos.1 to 6 succeeded the suit schedule property from Meenakshamma and they are in joint possession of the suit schedule property?

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Whether court fee paid by the plaintiff is sufficient?

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Whether the defendant Nos.7 and 8 proves that suit is barred by law of limitation?

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Whether plaintiffs are entitled to share as prayed in the plaint?

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What order or decree?

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The plaintiff got himself examined as PW-1

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and got marked Exs.P1 to P31. Though defendant Nos.7 and 8 have filed written statement, they have failed to tender any evidence. Exs.D1 and D2 were marked in the cross examination of PW-1.

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On appreciation of evidence, the Trial Court dismissed the suit. Hence, the present appeal.

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Learned counsel appearing for the appellant

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submitted that the Trial Court failed to appreciate that the suit schedule property after partition becomes the

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Joint Hindu Family property in the hands of defendant No.1 to the extent of 1/5^th share. Plaintiff being the son of the 1^st respondent becomes a coparcener having definite share in the property from his birth. The alleged power of attorney and the agreement of sale said to have been executed by defendant No.1 in favour of defendant Nos.7 and 8 in the year 1996 is not binding on the petitioner who was a minor at that time. Even after attaining majority, the sale deed executed on 14.2.2011

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as a consequence of the power of attorney was not signed by the plaintiff. Mere filing of O.S.No.801/2010 by the plaintiff along with his father would not disentitle him to get his share in the suit schedule property. The Trial Court mechanically dismissed the suit on the ground that the suit for partition is not maintainable in view of the earlier partition between respondent Nos.1 to 5. Accordingly, learned counsel sought for allowing the appeal by setting aside the impugned judgment and decree.

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Though the respondent Nos.1 to 4 and 6 are

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served, there is no representation. Notice to respondent No.5 is held to be sufficient. Sri. S. Srinivasa Murthy represents respondent Nos.7 to 9.

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Having heard the learned counsel for the

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parties and perusing the material on record, the points that arise for our consideration are:

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Whether the plaintiff is entitled to partition of the suit schedule property as sought for?

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Whether the Trial Court is justified in dismissing the suit?

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Re. Point No.1 – The plaintiff is claiming

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1/3^rd share in 1/5 share of the suit schedule property

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on the ground that the suit schedule property was purchased in the name of Smt.Meenakshamma from the joint family nucleus and the joint family status continued even after the death of Smt.Meenakshamma

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in the year 2004. In the cross examination, the plaintiff

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who was examined as PW-1 has admitted that he is aware of O.S.No.801/2010 filed by his father and he has read the plaint, having known about O.S.No.801/2010, no decision has been taken by him to withdraw the present suit. It is categorically admitted that on the assurance made by his father that his share in the suit property shall be allotted to him in O.S.No.801/2010, he has signed the documents; his father is also a party to the proceedings in O.S.No.801/2010. He has deposed that the said aspect

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has come to his knowledge only about one year back, having knowledge about O.S.No.801/2010 he would not have fled the present suit. It has been further deposed that in O.S.No.801/2010 his father-defendant No.1 has sought for cancellation of the power of attorney, he is oblivious of mentioning about agreement of sale in O.S.No.801/2010.

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Ex.D1 is the plaint copy in O.S.No.801/2010

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which discloses that the plaintiff along with his brother defendant No.6 and father-defendant No.1 has filed the said suit against the defendant Nos.7 and 8 where in paragraph 5 of the said plaint it is averred that by partition deed dated 5.2.1974 the suit property was divided amongst the five sons-defendant Nos.1 to 5 to which Smt.Meenakshamma was a party. Thus, Dr.N.Venugoapl-defendant No.1 herein got 1 acre 4 guntas under the partition deed. All the other four sonsdefendant Nos.2 to 5 also got 1 acre 4 guntas. Power of attorney dated 8.8.1996 is said to have been executed by the defendant No.1 for the purpose of statutory permissions. Further averments are, an amount of Rs.16 lakhs shown as advance in the agreement would be converted into non refundable advance amount as and when a regular joint development agreement as agreed between both the parties could be entered into. Ex.D2 is the order sheet of O.S.No.801/2010.

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15. In this backdrop, the Trial Court has

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rightly observed, since no interim order of injunction was granted in the said suit O.S.No.801/2010 at the time of filing of the suit on 28.9.2010, the present suit was filed on the very same day by the plaintiff herein. The plaintiff is claming his rights as the son of defendant No.1 contending that the joint family status has been continued even after the demise of Smt.Meenakshamma. The conduct of the plaintiff in taking inconsistent stands inasmuch as the suit schedule property being partitioned on 05.02.1974 amongst the five children of Smt.Meenakshammadefendant Nos.1 to 5 in O.S.No.801/2010 and filing the present suit taking altogether a different and contrary stand would demonstrate that the plaintiff has not approached the Court with clean hands. The plea of joint undivided status and the joint possession of the suit schedule property by the defendant Nos.1 to 6 and the plaintiff is absolutely unjustifiable.

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16. Similarly the Court fee paid under Section

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35(2) of the Karnataka Court Fee and Suits Valuation Act, 1958 is insufficient since the plaintiff is not in possession of the suit schedule property. Indisputably, the suit schedule property was acquired by Smt.Meenakshamma by registered sale deed dated 21.2.1963. The sale agreement and General Power of Attorney was executed by defendant No.1 on 7.8.1996 and 8.8.1996 respectively by defendant No.1 in favour of defendant Nos.7 and 8. Originally though the suit was filed for partition and separate possession by way of an amendment, the plaintiff has challenged the sale deed dated 14.2.2011 as not binding on him, suppressing filing of O.S.No.801/2010 and the partition effected between the children of Smt.Meenakshamma on 5.2.1974.

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As aforesaid, the present suit is field on 28.9.2010. Hence, the finding on the issue of limitation

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by the trial Court that the suit is barred by limitation cannot be found fault with. Ex.P13 is the registered sale deed 14.2.2011 executed by the defendant Nos.7 and 8 in favour of defendant No.9-M/s.Chaitanya Properties (Pvt.) Limited. No material evidence is placed on record to challenge the said sale deed dated 14.2.2011 except contending that the sale deed was executed by defendant Nos.7 and 8 in favour of defendant No.9 during the pendency of the suit proceedings. It is evident that this is a frivolous suit filed by the plaintiff suppressing the material facts which would not entitle him from claiming the reliefs. Having regard to these aspects, the Trial Court has rightly dismissed the suit.

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Viewed from any angle, on re-appreciation of evidence, we do not find any perversity or illegality in the finding of the Trial Court under any score.

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19. Filing of multiple suits on the same cause of

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action is highly deprecated. It is nothing but abuse of

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process of Court.

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Appeal is devoid of merits and accordingly stands dismissed.

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Sd/JUDGE

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Sd/JUDGE

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Dvr:

V Naveen v. Dr. N Venugopal

Case brief

What is this about?

What did the court decide?

V Naveen v. Dr. N Venugopal

Case brief

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