Partly allowed

Kum Harini v. Smt Rajamma

Karnataka HC21 Nov 2023RFA/484/2015

Case brief

AI extract

What is this about?

Appeals against decrees declaring share entitlements in partition suits were partly allowed. Confirmed parties' entitlement to 1/3rd shares but set aside other findings to remand disputed matters of boundaries and transactions to proceedings in a connected final decree case.

What did the court decide?

Confirmed declaration of 1/3rd share entitlement; set aside other findings regarding property details; remanded for enquiry in pending final decree proceedings.

Kum Harini Vs Smt Rajamma — Partition | Karnataka HC (2023)

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NC: 2023:KHC:41745 RFA No. 484 of 2015 C/W RFA No. 1045 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 484 OF 2015 (PAR)

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C/W

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REGULAR FIRST APPEAL NO. 1045 OF 2020 (PAR)

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IN RFA NO. 484/2015

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BETWEEN:

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KUM. HARINI, D/O RAMESH, AGED ABOUT 25 YEARS, R/AT NO. 140/1, NEW NO.7, JARAGANAHALLI VILLAGE, UTTARAHALLI HOBLI, BENGALURU SOUTH TALUK.

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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SRI. KIRAN KUMAR R, S/O RAMESH, AGED ABOUT 22 YEARS, R/AT NO.140/1, NEW NO.7, JARAGANAHALLI VILLAGE, UTTARAHALLI HOBLI, BENGALURU SOUTH TALUK.

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(BY SRI. M.D. RAGHUNATH, ADVOCATE)

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…APPELLANTS

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AND:

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SMT. RAJAMMA, W/O S.R. RAMU, AGED ABOUT 44 YEARS, R/AT BASAVARAJA LAYOUT, NEAR YELLAMMA TEMPLE, JARAGANAHALLI VILLAGE, J.P NAGAR, BENGALURU - 560 078.

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2 - NC: 2023:KHC:41745 RFA No. 484 of 2015 C/W RFA No. 1045 of 2020

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SMT. YELLAMMA, W/O LATE NARAYANAPPA, AGED ABOUT 62 YEARS, R/AT BASAVARAJA LAYOUT, NEAR YELLAMMA TEMPLE, JARAGANAHALLI VILLAGE, J.P. NAGAR, BENGALURU - 560 078.

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SRI. RAMESH, S/O LATE NARAYANAPPA, AGED ABOUT 37 YEARS, R/AT BASAVARAJA LAYOUT, NEAR YELLAMMA TEMPLE, JARAGANAHALLI VILLAGE, J.P. NAGAR, BENGALURU - 560 078.

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SRI C. R. VENKATESH, S/O MUTHYALU, AGED ABOUT 58 YEARS, R/AT NO.52/3, AMARJYOTHI NILAYA, OFF MALKAM FACTORY, SARAKKI GATE, I PHASE, J.P.NAGAR, BENGALURU - 560 078.

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…RESPONDENTS

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(BY SRI. V.G. BHANU PRAKASH, SENIOR COUNSEL FOR SRI. ISMAIL M. MUSBA, ADVOCATE FOR R1 AND R2; NOTICE TO R3 IS HELD SUFFICIENT V/O DATED 27.09.2016; VIDE ORDER DATED 22.10.2018 SERVICE HELD SUFFICIENT IN RESPECT OF R4 BY WAY OF PAPER PUBLICATION)

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THIS RFA IS FILED U/SEC 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 25.1.2008 PASSED IN O.S.NO.4437/1997 ON THE FILE OF I ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION AND PERMANENT INJUNCTION.

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NC: 2023:KHC:41745 RFA No. 484 of 2015 C/W RFA No. 1045 of 2020

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IN RFA NO. 1045/2020

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BETWEEN:

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SMT. HARINI, D/O RAMESH, AGED ABOUT 31 YEARS,

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SRI. KIRAN, S/O RAMESH, AGED ABOUT 28 YEARS,

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BOTH ARE RESIDING AT NO.140/1, NEW NO.7, JARAGANAHALLI VILLAGE, UTTARAHALLI HOBLI, BENGALURU SOUTH TALUK - 560 078.

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…APPELLANTS

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(BY SRI. M.D. RAGHUNATH, ADVOCATE)

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AND:

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SMT. YELLAMMA, W/O LATE NARAYANAPPA, AGED ABOUT 70 YEARS, RESIDING NEAR YELLAMMA TEMPLE, BASAVARAJA LAYOUT, JAYARANAHALLI, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK, BANGALORE - 560 078.

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SRI. N. BASAVARAJ S/O LATE NANJUNDAPPA, AGED ABOUT 70 YEARS RESIDING AT NEAR YELLAMMA TEMPLE, BASAVARAJA LAYOUT, JAYARANAHALLI, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK - 560 078.

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SRI. D. NAGARAJ, S/O. DEVARAJ, AGED ABOUT 55 YEARS, R/AT NO. 517, 1ST FLOOR,

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NC: 2023:KHC:41745 RFA No. 484 of 2015 C/W RFA No. 1045 of 2020

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17TH CROSS, J P NAGAR,

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6TH PHASE, BENGALURU - 560 078.

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SRI. C R VENKATESH, S/O. MUTHYALU, AGED ABOUT 55 YEARS, R/AT NO. 194, VIVEKNAGAR COLONY, SARAKKI GATE, BENGALURU - 560 078.

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SMT. RAJAMMA W/O. RAMANNA, AGED ABOUT 54 YEARS, RESIDING AT NEAR YELLAMMA TEMPLE, BASAVARAJA LAYOUT, JAYARANAHALLI, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK - 560 078.

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…RESPONDENTS

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(BY SRI. V.G. BHANU PRAKASH, SENIOR COUNSEL FOR SRI. ISMAIL M MUSBA, ADVOCATE FOR R1 AND R5; R2 SERVED AND UNREPRESENTED;

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NOTICE TO R3 AND R4 IS DISPENSED WITH V/O DATED 18.08.2023)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE ORDER DATED 09.12.2019 PASSED IN OS.No.2249/2005 ON THE FILE OF THE LXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, ALLOWING THE IA No.16 FILED UNDER SECTION 11 OF CPC AND DISMISSING THE SUIT AS IT IS HIT BY SECTION 11 OF CPC i.e, THE PRINCIPLES OF RES JUDICATA.

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THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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RFA.No.484/2015 is directed against the impugned judgment

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and decree dated 25.01.2008 passed in O.S.No.4437/1997, on the file of I Additional City Civil and Sessions Judge, Bengaluru City

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5 - NC: 2023:KHC:41745 RFA No. 484 of 2015 C/W RFA No. 1045 of 2020

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and RFA.No.1045/2020 is directed against the impugned judgment and decree dated 09.12.2019, on the file LXVI Additional City Civil and Sessions Judge, Bengaluru City (CCH-67). The appellants in both the appeals are Kum.Harini and Sri.Kiran, children of Ramesh.

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Heard the learned counsel for the appellants and learned counsel for the respondents and perused the material on record.

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A perusal of the material on record indicates that the suit schedule property involved in both the appeals in land bearing Sy.No.4/2-B situated at Jaraganahalli Village, Uttarahalli Hobli, Bengaluru South Taluk. The said property was owned and possessed by Narayanappa, who acquired the same at a partition under which the said property was allotted to the share of Narayanappa under registered partition deed dated 18.05.1972 entered into between himself and his family members. The said Narayanappa was married to Yellamma and they have two children viz., son Ramesh and daughter Rajamma. The appellants are the children of the aforesaid Ramesh, who is said to be missing for more than 28 years.

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The aforesaid Rajamma and her mother Yellamma instituted the aforesaid suit in O.S.No.4437/1997 against the said Ramesh for partition and separate possession of their legitimate share in the suit schedule property and for other reliefs. In the said suit, the aforesaid Ramesh was arrayed as defendant No.1 while one C.R.Venkatesh, who was alleged to be a purchaser of portion of the suit schedule property was arrayed as defendant No.2. Similarly, the said C.R.Venkatesh, also instituted one more suit in O.S.No.4307/1998 against Ramesh, Yellamma and Rajamma for specific performance and other reliefs in relation to the portion of the suit schedule property.

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Both the suits were contested by respective parties and culminated in the impugned common judgment and decree passed in O.S.Nos.4437/1997 and 4307/1998, whereby, the trial Court dismissed the suit for specific performance filed by said C.R.Venkatesh. Further, the trial Court has passed the impugned judgment and decree declaring that Rajamma, Yellamma and Ramesh were entitled to 1/3^rd share each in the suit schedule property as described in the schedule to the plaint in O.S.No.4437/1997.

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Subsequently, the appellants herein who are none other than children of the said Ramesh (missing) filed one more suit in O.S.No.2249/2005 against Yellamma, Rajamma and others for partition and separate possession of their legitimate share in the suit schedule properties and other reliefs. The said suit was dismissed by the trial Court vide impugned judgment and decree passed by the Court of LXVI Additional City Civil and Sessions Judge, Benglauru City, dated 09.12.2019 as barred by res judicata , in view of the judgment passed in the earlier suit in O.S.No.4437/1997 referred to supra.

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As stated supra, RFA.No.484/2015 is preferred by the appellants whose father Ramesh was defendant No.1 in O.S.No.4437/1997 while connected RFA.No.1045/2020 is filed by appellants, who were the plaintiffs in O.S.No.2249/2005 filed by them.

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A perusal of the impugned judgments and decrees passed in both the suits, clearly indicates that the trial Court has come to the conclusion that the suit schedule property belongs to the aforesaid Narayanappa upon whose demise his wife Yellamma,

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son Ramesh and daughter Rajamma were entitled to 1/3^rd share each in the suit schedule property. In this context, it is relevant to state that there is no dispute between the parties, as regards each of them being entitled to 1/3^rd share each in the suit schedule property. However, there is a serious dispute between the appellants who are children of Ramesh on one hand and Yellamma and Rajamma on the other, as regards, the dimensions, measurements, schedule, boundaries etc., in respect of the property bearing Sy.No.4/2-B allotted to the share of Narayanappa in the partition deed dated 18.05.1972. There is also dispute between the parties as regards certain transactions, alienations, etc., that took place in relation to the property. It is therefore clear that the impugned judgment and decree passed by the trial Court in both the suits, as regards declaration that Yellamma, Rajamma and Ramesh are entered to 1/3^rd share each in the property is correct and proper and the same does not warrant interference by this Court in both the appeals.

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Under these circumstances, I am of the considered opinion that the trial Court in both the suits was fully justified in coming to the conclusion that Yellamma, Rajamma and the

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appellants are entitled to 1/3^rd share each in the property of Narayanappa, which is the subject matter of the present appeal and consequently, the said findings recorded by the trial Court in both the suits i.e., O.S.Nos.4437/1997 and 2249/2005 deserves to be confirmed.

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As stated supra, there is a serious dispute regarding dimensions, measurements, schedule, boundaries, extent, etc., of the property available for partition between the parties as well as various transactions said to have taken place in respect of the property. In this regard, learned counsel for both sides submit that the final decree proceedings in FDP.No.60/2009 are pending before the trial Court and parties have entered appearance in the said proceedings. Under these circumstances, without expressing any opinion on the merits/demerits of the rival contentions as regards the dimensions, measurements, schedule, boundaries, extent, alienations, transactions etc., of the property available for partition, I deem it just and appropriate to set aside all findings recorded by the trial Court except declaration that they are entitled 1/3^rd share each, which has been confirmed by this Court as stated supra and direct the final decree Court to decide all other

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contentions in accordance with law, by providing sufficient and reasonable opportunity to both the parties.

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In the result, I pass the following:

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ORDER

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a) Both RFA.No.484/2015 and connected RFA.No.1045/2020 are hereby partly allowed .

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b) The impugned judgments and decrees passed by the trial Court insofar as it relates to declaring that Yellamma, Rajamma and appellants (jointly) are entitled to 1/3^rd share each in Sy.No.4/2-B is hereby confirmed.

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c) All other findings recorded in the impugned judgments and decrees except declaration regarding their entitlement to 1/3^rd share each as stated supra are hereby set aside.

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d) The final decree proceeding before whom FDP No.60/2009 is pending, directed to conduct necessary enquiry on all other aspects and proceed further, in accordance with law.

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e) All rival contentions between the parties (except their entitlement to 1/3^rd share each) including contention regarding dimensions,

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NC: 2023:KHC:41745 RFA No. 484 of 2015 C/W RFA No. 1045 of 2020

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measurements, schedule, boundaries, extent, location, transactions, alienation etc., are kept open to be decided in FDP.No.60/2009.

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f) Liberty is reserved in favour of both parties, to adduce that to file additional pleadings and to adduce oral and documentary evidence in support of the respective clients .

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In view of the disposal of the main appeal, I.A.No.1/2023 is

also disposed of.

Sd/JUDGE

CT: BHK

Kum Harini v. Smt Rajamma

Case brief

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Kum Harini v. Smt Rajamma

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