Allowed

Smt Lakkamma v. Sri Mudalappa

Karnataka HC9 Nov 2023RFA/1320/2008

Case brief

AI extract

What is this about?

Appellants appealed a dismissal of a partition suit due to failure to prove relationship with the respondent. The High Court allowed the appeal, accepted additional evidence produced ex parte, remitted the case to the trial court for fresh disposal, and directed future appearance by plaintiffs without expressing opinion on the evidence's veracity.

What did the court decide?

Additional evidence taken on record; impugned judgment and decree set aside; matter remitted to the trial court for fresh disposal.

Smt Lakkamma Vs Sri Mudalappa — Succession and Inheritance | Karnataka HC (2023)

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1 - NC: 2023:KHC:40300 RFA No. 1320 of 2008

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR.JUSTICE V.SRISHANANDA

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REGULAR FIRST APPEAL NO.1320 OF 2008 (PAR)

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BETWEEN:

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SMT. LAKKAMMA ALIAS LAKSHMI W/O MUDALAPPA AGED ABOUT 61 YEARS

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SMT. BHAGYAMMA W/O CHANDRASHEKAR AGED ABOUT 32 YEARS

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KUM. LEELAVATHI D/O MUDALAPPA AGED ABOUT 16 YEARS BEING MINOR REPRESENTED BY HER GUARDIAN AND ELDER SISTER SMT. BHAGYAMMA W/O CHANDRASHEKAR ALL ARE RESIDING AT ALUR VILLAGE, DASANAPURA HOBLI NELAMANGALA TALUK BANGALORE DISTRICT - 562 123.

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Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

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…APPELLANTS

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(BY SRI. D.L.SURESH AND SRI. H C MANJUNATHA, ADVOCATES)

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AND:

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SRI MUDALAPPA S/O NARASIMHAIAH AGED ABOUT 57 YEARS

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NC: 2023:KHC:40300 RFA No. 1320 of 2008

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SMT. THIMMAKKA W/O MUDALAPPA AGED ABOUT 32 YEARS

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KUM. LAKSHMINARASAMMA D/O MUDALAPPA AGED ABOUT 18 YEARS BEING MINOR REPRESENTED BY HER NATURAL GUARDIAN-FATHERSRI MUDALAPPA.

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ALL ARE RESIDING AT MAKANAHALLI VILLAGE HEBBUR HOBLI TUMKUR TALUK AND DISTRICT - 572 120.

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…RESPONDENTS

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[R1, R2 AND R3 - NOTICE SERVED (ABSENT)]

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THIS APPEAL IS FILED U/S 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 18.8.2008 PASSED IN OS.NO.3041/2006 ON THE FILE OF THE I ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BANGALORE, (CCH.NO.2), DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION, DECLARATION AND MESNE PROFITS.

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THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The present appeal is filed challenging the validity

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of the judgment and decree passed in OS No.3041/2006 dated 18.08.2008 on the file of I Additional City Civil and Sessions Judge, Bengaluru (CCH-2).

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3 - NC: 2023:KHC:40300 RFA No. 1320 of 2008

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2. Facts which are utmost necessary are briefly stated as under:

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(i) A suit came to be filed by the plaintiffs claiming to be the wife and children of defendant no.1 and they are entitled for a share in the suit property. Defendants, though served with the suit summons, remained absent. The learned trial Judge recorded the evidence of the plaintiff.

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(ii) In support of the case, plaintiff no.2Bhagyamma got examined herself as PW.1 and placed about 14 documents which were accepted and marked as Exs.P1 to P14 comprising of genealogy tree, certified copy of the sale deed, mutation register extract, intimation issued by Women Federation, correspondence made to the Women Federation by the plaintiffs, tax demand extract, gift deed and RTC extracts.

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(iii) On conclusion of recording of the evidence, the learned trial Judge raised a point for consideration stating as to whether the plaintiffs are entitled for the relief as sought for and recorded a negative finding on the said point by holding that the plaintiffs have failed to

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NC: 2023:KHC:40300 RFA No. 1320 of 2008

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prove that they are the wife and children of defendant

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no.1, and accordingly, the suit was dismissed.

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Being aggrieved by the same, the plaintiffs have

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preferred this appeal on the following grounds:

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"The learned judge erred in dismissing the suit without properly considering the entire evidence on record.

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The learned judge erred in coming to the conclusion that the appellants have not established their relationship with the respondent No.1.

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The learned judge failed to consider the evidence of P.W.1 and properly consider exhibit P1 genealogy tree.

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The learned judge erred in not decreeing the suit even though the respondents remained absent, placed exparte, there was no specific denial of the plaint averments under Order VIII Rule 3 of the Code of Civil Procedure, and P.W.1 was not cross examined.

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Dismissal of the suit without forming proper points for consideration without giving any opportunity to give evidence on the said point and without hearing is illegal and contrary to law.

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The learned judge failed to frame proper issues or points for consideration and if

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5 - NC: 2023:KHC:40300 RFA No. 1320 of 2008

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sufficient opportunity was given, the appellant would have produced additional evidence to prove the relationship, which is not in dispute. The appellants would have produced the written statement filed by respondent No.1 in O.S.No.419 of 2004 on the file of the learned III Addl. Civil Judge (Junior Division), Tumkur, wherein he has admitted the relationship, that the appellant No.1 is his wife and appellants 2 and 3 are his daughters."

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Reiterating the grounds urged in the appeal memorandum, Sri D.L.Suresh, learned counsel for the appellants contended that since the defendants were placed ex parte , the plaintiffs had filed certified copy of the genealogical tree and thought that it was sufficient to establish the relationship with defendant no.1 and the correspondence made to the Women Federation by the plaintiffs was also relied upon to prove their relationship.

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Learned trial Judge ignoring that there is no cross examination on the evidence placed by PW.1 and veracity of the documents produced not being questioned, still recorded a finding that the plaintiffs

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6 - NC: 2023:KHC:40300 RFA No. 1320 of 2008

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have failed to prove the relationship of the plaintiffs and defendant no.1, resulting in miscarriage of justice, and therefore, he sought for allowing the appeal.

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Respondents though served with the notice of the appeal have remained absent.

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In this appeal, an application (I.A.No.1/2008) is filed by the appellants under Order 41 Rule 27 of CPC for production of additional documents and it is submitted that the said documents would prima facie establish that the plaintiffs are related to defendant no.1.

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However, veracity of those documents with regard to legal proof are required to be established before the trial court by leading evidence.

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Since the defendants were placed ex parte before the trial court and the same is the status before this Court, this Court cannot accept the validity and veracity of the additional evidence placed by the appellants on record to establish their relationship with defendant no.1 and decree the suit.

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7 - NC: 2023:KHC:40300 RFA No. 1320 of 2008

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The procedure contemplated under Section 50 of

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the Evidence Act was also not utilized by the appellants taking note of the fact that the defendants were placed ex parte .

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It is always open for the appellants/plaintiffs to place such evidence on record to establish their relationship with defendant no.1.

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Therefore, necessity has arisen to accept the additional evidence and set aside the impugned judgment by remitting the matter to the trial court for fresh disposal in accordance with law.

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13. Accordingly, the following:

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ORDER

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(i) I.A.No.1/2008 filed under Order 41 Rule 27 of CPC is allowed. The additional evidence produced by the appellants is taken on record;

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(ii) Consequently, the appeal is allowed. The impugned judgment and decree dated 18.08.2008 passed by the I Additional City Civil and Sessions Judge, Bengaluru (CCH-2) in OS No.3041/2006 is set aside;

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NC: 2023:KHC:40300 RFA No. 1320 of 2008

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(iii) The matter is remitted to the trial court for fresh disposal in accordance with law;

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(iv) The plaintiffs shall appear before the trial court without further notice positively on 29th November 2023. Thereafter, the learned trial Judge shall issue fresh notice to the respondents/defendants and proceed with the case in accordance with law;

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(v) It is made clear that this Court has not expressed any opinion on the veracity/validity of the additional evidence placed before this Court.

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(vi) No order as to costs.

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Sd/JUDGE

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hkh.

Smt Lakkamma v. Sri Mudalappa

Case brief

What is this about?

What did the court decide?

Smt Lakkamma v. Sri Mudalappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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