Allowed

Sri. Nagaraju. R v. Smt. Jayamma

Karnataka HC1 Sept 2021WP/730/2018

Case brief

AI extract

What is this about?

The High Court allowed a writ petition under Article 227 of the Constitution challenging an order in O.S. No. 9561/2015. The Court set aside the impugned order rejecting an application to alter house walls and remitted the matter to the Trial Court for reconsideration after production of possession documents.

What did the court decide?

Writ petition allowed; impugned order set aside; Trial Court directed to reconsider application-I.A.No.6 and pass appropriate orders within two months.

Sri. Nagaraju. R Vs Smt. Jayamma — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF SEPTEMBER 2021

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BEFORE

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THE HON’BLE MR.JUSTICE ASHOK S. KINAGI

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WRIT PETITION NO.730 OF 2018 (GM-CPC)

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BETWEEN:

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1 . SRI. NAGARAJU. R AGED ABOUT 33 YEARS S/O.LATE RAJU

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2 . SMT. MANJULA R AGED ABOUT 31 YEARS D/O LATE RAJU

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BOTH ARE R/AT No.210, 5^TH CROSS KUMARARAMA ROAD LAKSHMIPURA BENGALURU – 560 019.

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...PETITIONERS

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(BY SRI. SHARATHKUMAR SHETTY, ADVOCATE)

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AND:

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1 . SMT. JAYAMMA D/O. LATE CHIKKANNA, W/O SIDDURA, AGED ABOUT 72 YEARS RESIDING AT NO.155, 4^TH CROSS, MADAKARINAYAKA ROAD, LAKSHMIPURA, BENGALURU – 560 019.

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2 . SMT JAYA D/O.LATE. HUCHEGOWDA, AGED ABOUT 33 YEARS

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3 . SMT LAKSHMI D/O. LATE HUCHEGOWDA, AGED ABOUT 35 YEARS

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4 . SMT USHA D/O.LATE HUCHEGOWDA, AGED ABOUT 32 YEARS.

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5 . SRI SHIVAKUMAR S/O.LATE HUCHEGOWDA, AGED ABOUT 37 YEARS RESPONDENT No.2 TO 5 ARE RESIDING AT No.210, 5^TH CROSS KUMARARAMA ROAD, LAKSHMIPURA BENGALURU – 560 019.

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6 . SMT YASHODHAMMA D/O LATE CHIKKANNA, W/O RAMANNA, AGED ABOUT 64 YEARS NO.3521, 8^TH CROSS, 10^TH MAIN ROAD, CHANDRANAGAR, KUMARASWAMY LAYOUT, BENGALURU – 560 078.

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7 . SMT SUSHEELAMMA D/O LATE CHIKKANNA, W/O THIMMAIAH, NO.155, 4^TH CROSS, MADAKARINAYAKA ROAD, LAKSHMIPURA, BENGALURU – 560 019. ….RESPONDENTS (R-1 TO R-7 SERVED UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 21.11.2017 IN O.S.9561/2015 IN I.A. NO. VI PASSED BY THE XXXIth ADDL. CITY CIVIL JUDGE, BANGALORE AT ANEX-H BY ALLOWING THE I.A. NO. 6.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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The petitioners aggrieved by the order dated 21.11.2017, passed in O.S.No.9561/2015 by the XXXI Additional City Civil and Sessions Judge, (CCH-14), Bengaluru City, Bengaluru, have filed this writ petition.

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Brief facts leading rise to filing of this petition are as under: That the petitioners have filed a suit in O.S.No.9561/2015 for the relief of partition and separate possession. In the said suit, petitioners have filed an application-I.A.No.6 seeking permission to put up a house walls, minor alteration over the suit property. In support of his application, petitioner No.2

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has filed an affidavit contending that the petitioners are residing in the portion of suit schedule property along with his family members. Recently the said house wall fell down and during alteration of the house wall, respondent No.3 and Gayithramma were disturbing and made a galata. The mother of petitioners filed a complaint before the K.G.Nagar Police Station. The said Police have registered FIR against respondent No.3 and Gayithramma. It is further contended that the petitioners are residing in the portion of the suit schedule property. Now the house has fallen down and

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they are living with great difficulty in the said house. Hence, pray to allow the application.

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2.1. The said application was opposed by respondents No.2 to 4 by way of filing objection denying the averments made in the application and denied that the petitioners have failed to prove that they are in possession of the suit schedule property and have not

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produced any records in support of their contention. Hence, prayed to dismiss the application. The Trial Court after hearing the parties rejected the application filed by the petitioners. Hence, this Writ Petition.

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Learned counsel for the petitioners submits that though notice was issued to the respondents, they were remained absent.

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Learned counsel for the petitioners submits that the petitioners have produced the records before this Court in this writ petition in order to establish their possession over the suit schedule property. He further submits that the said documents were not produced before the Trial Court. The Trial Court has recorded a finding in the impugned order that the petitioners have not produced the records to show that the petitioners are in possession of the suit schedule property. Hence, the impugned order be set aside and directed the Trial

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Court to reconsider the application and pass appropriate order.

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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The petitioners in order to establish that they are in possession of the suit schedule property has produced a bill issued by the Gas agency and also produced a copy of the Aadhaar Card vide Annexure-E and also produced the photographs to show that the house is in dilapidated condition and a portion of the roof has fallen down vide Annexure-G Series. The said documents were not produced before the Trial Court. In order to consider those documents, it is necessary that the matter needs to be remitted to the Trial Court to reconsider the application filed by the petitioners.

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In view of the above discussion, the following order is passed :

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ORDER

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i) The Writ Petition is allowed;

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ii) The impugned order is set aside;

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iii) The Trial Court is directed to reconsider

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the application-I.A.No.6 filed by the petitioners after considering the documents and pass appropriate orders in accordance with law within a period of two months from the date of receipt of

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copy of this order.

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SD/JUDGE

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rs/GRD

Sri. Nagaraju. R v. Smt. Jayamma

Case brief

What is this about?

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Sri. Nagaraju. R v. Smt. Jayamma

Case brief

What is this about?

What did the court decide?

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