Allowed

Smt. Devi v. Smt. v Anusuyadevi

Karnataka HC23 Nov 2023RFA/542/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the appeal against the trial court's dismissal of a partition suit. The court set aside the impugned judgment, remitted the matter for fresh reconsideration by the trial court after permitting the amendment of plaint and production of additional evidence, while reserving liberty to the parties and keeping all contentions open.

What did the court decide?

Impugned judgment and decree set aside; matter remitted to trial court for reconsideration afresh; applications for amendment and additional evidence allowed.

Smt. Devi Vs Smt. v. Anusuyadevi — Partition | Karnataka HC (2023)

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NC: 2023:KHC:42165 RFA No. 542 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD 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. 542 OF 2017 (PAR)

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BETWEEN:

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SMT. DEVI D/O LATE KANTARAJ, W/O C NAGARAJU, AGED ABOUT 56 YEARS, R/AT NO.1, VENKATASWAMY LAYOUT, OPP. BANASAWADI RAILWAY STATION, LINGARAJAPURAM EXTENSION, BENGALURU - 560 084.

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… APPELLANT

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(BY SRI. A.C. BALARAJ, ADVOCATE)

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AND:

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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SMT. V. ANUSUYADEVI W/O LATE KANTHARAJ SINCE DECEASED REPRESENTED BY LRS

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1(a) SMT. DEVI D/O LATE KANTHARAJ W/O C. NAGARAJU AGED ABOUT 56 YEARS R/AT NO.1, VENKATASWAMY LAYOUT OPP. BANASAWADI RAILWAY STATION LINGARAJAPURAM EXTENSION BENGALURU - 560 084.

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1(b) SMT. HAMSA AGED ABOUT 62 YEARS, D/O LATE KANTHARAJ, W/O R NAGARAJ,

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1(c) SRI K. UMAPATHI AGED ABOUT 59 YEARS S/O LATE KANTHARAJ

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1(d) SMT. MALA AGED ABOUT 37 YEARS D/O LATE RAMESH

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1(e) KUM. SANDHYA AGED ABOUT 16 YEARS D/O LATE RAMESH

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SINCE R1(e) IS MINOR, DULY REPRESENTED BY SMT. MALA

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1(f) SRI PRASHANTH AGED ABOUT 24 YEARS S/O LATE RAMESH

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1(g) SRI MANOJ AGED ABOUT 22 YEARS S/O LATE RAMESH

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1(h) SMT. SUDHA AGED ABOUT 58 YEARS D/O LATE KANTHARAJ

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ALL ARE RESIDING AT NO.1, VENKATASWAMY LAYOUT, OPP. BANASWADI RAILWAY STATION,

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LINGARAJAPURAM EXTENSION, BENGALURU - 560 084.

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SMT. HAMSA AGED ABOUT 62 YEARS D/O LATE KANTHARAJ W/O R. NAGARAJ

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SRI K UMAPATHI AGED ABOUT 59 YEARS, S/O LATE KANTHARAJ,

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SRI RAMESH

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SINCE DECEASED BY HIS LRS

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4(a) SMT. MALA AGED ABOUT 37 YEARS, W/O LATE RAMESH,

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4(b) KUM. SANDHYA AGED ABOUT 16 YEARS, D/O LATE RAMESH REP. BY SMT. MALA LR4(a)

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4(c) SRI PRASANTH AGED ABOUT 24 YEARS S/O LATE RAMESH

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4(d) SRI MANOJ AGED ABOUT 22 YEARS S/O LATE RAMESH

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SMT. SUDHA AGED ABOUT 58 YEARS D/O LATE KANTHARAJ

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NC: 2023:KHC:42165 RFA No. 542 of 2017

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2 TO 5 ARE RESIDING AT NO.1, VENKATASWAMY LAYOUT, OPP. BANASWADI RAILWAY STATION, LINGARAJAPURAM EXTENSION, BENGALURU - 560 084.

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… RESPONDENTS

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(BY SRI. SKANDA KUMAR, ADVOCATE FOR M/S. LEGAL AXIS, FOR R1 (b), (c), (f), (g) & (h); R1(a), R1(d), R2, R3, R4(a), R4(c), R4(d), R5 ARE SERVED AND UNREPRESENTED; R1(e) & R4(b) ARE MINORS AND REPRESENTED BY R1(d) & R4(a) RESPECTIVELY)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.01.2017 PASSED IN OS.NO.4288/2005 ON THE FILE OF THE XXII ADDL. CITY CIVIL AND SESSIONS JUDGE BENGALURU, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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

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JUDGMENT

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This appeal by the unsuccessful plaintiff in O.S.No.4288/2005 is directed against the impugned judgment and decree dated 28.01.2017 passed by the

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XXII Additional City Civil & Sessions Judge, Bangalore, whereby the said suit for partition and separate possession filed by the appellant/plaintiff against the respondents/ defendants was dismissed by the trial court.

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5 - NC: 2023:KHC:42165 RFA No. 542 of 2017

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The material on record discloses that the

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appellant/plaintiff instituted the aforesaid suit against her mother Late Anusuyadevi and her sisters for partition and separate possession of her alleged share in the suit schedule properties. The said suit having been contested by the respondents/defendants, the trial court proceeded to frame the following issues:

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Whether the plaintiff proves that the suit schedule property is the joint family property of herself and the defendants?

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Whether the plaintiff proves that the plaintiff and defendants are in joint possession of the same ?

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Whether the plaintiff proves that she is entitled for 1/6th share in the suit schedule property?

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1. Whether the plaintiff proves that she also had contributed to the development and improvement of the suit schedule property?

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1. Whether the defendants prove that the suit schedule property was the self acquired property of Venkataswamy Naidu and the mother of the 1st defendant ?

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Whether the defendants prove that Venkataswamy Naidu donated the said property in favour of the 1st defendant by means of gift deed dated 11.10.1951 ?

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1. Whether there should be an order for an enquiry into mesne profits under Order 20 Rule 12 CPC ?

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1. What Decree or Order ?

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The plaintiff examined herself as PW.1 and

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documents as per Ex.P1 to P12 were marked on her behalf. The defendants examined themselves as DW.1 to DW.5 and documents as per Ex.D1 to D52 were marked on their behalf.

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After hearing the parties, the trial court rejected the claim of the appellant/plaintiff and upheld the claim of the respondents/defendants and proceeded to pass the

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NC: 2023:KHC:42165 RFA No. 542 of 2017

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judgment and decree dismissing the suit, aggrieved by which the appellant is before this court by way of present appeal.

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During the pendency of the present appeal, the appellant/plaintiff has filed an application I.A.No.3/2022 under Order VI Rule 17 CPC seeking amendment and the said application has been allowed vide order dated 23.11.2022 and the appellant has been permitted to amend the plaint. Accordingly, the amended plaint is filed by the appellant/plaintiff. Learned counsel for the respondents/defendants submit that he would file additional written statement to the amended plaint.

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The appellant/plaintiff has filed one more application I.A.No.4/2022 under Order XXXXI Rule 27 r/w 151 CPC, to permit the appellant to produce additional documents. Though the said application is opposed by the respondents/defendants who would dispute and deny such documents, a perusal of the said documents will indicate

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that the same are relevant and necessary for the purpose

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of adjudication of controversy involved in this appeal.

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Under these circumstances, though several

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contentions have been urged by both sides in support of their respective claims, with the consent of the learned counsel for both the appellant and the respondents, without expressing any opinion on the merits and de-merits of the rival contentions and in order to provide an opportunity to both sides to agitate their respective claims, I deem it appropriate to allow I.A.No.4/2022 and consequently set aside the impugned judgment and decree and remit the matter back to the trial Court for reconsideration afresh in accordance with law by leaving open all contentions to be decided by the trial Court.

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9. In the result, I pass the following:-

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ORDER

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(i) Appeal is hereby allowed .

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(ii) The impugned judgment and decree

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dated 28.01.2017 passed in

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O.S.No.4288/2005 by the XXII Addl.

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City Civil and Sessions Judge, (CCH-7), Bengaluru is hereby set aside. The matter is remitted back to the trial Court for reconsideration afresh in accordance with law.

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(iii) Liberty is reserved in favour of respondents/defendants to file additional written statement to the amended plaint. (iv) I.A.No.4/2022 filed by the

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appellant is allowed. The documents produced along with the same are received on record.

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(v) Registry is directed to transmit I.A.No.4/2022 and also the accompanying documents to the trial

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NC: 2023:KHC:42165 RFA No. 542 of 2017

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court for consideration in accordance with law.

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(vi) Liberty is reserved in favour of the

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appellant and respondents to adduce additional oral/ documentary evidence in support of their respective claims and also cross-examine the other parties and their witnesses.

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(vii) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.

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(viii)The parties undertake to appear before

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the trial Court on 18.12.2023 without awaiting further notice from the trial Court.

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(ix) Having regard to the fact that the suit is of the year 2005, the Trial Court is

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directed to dispose off the suit as

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expeditiously as possible.

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Sd/JUDGE

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Smt. Devi v. Smt. v Anusuyadevi

Case brief

What is this about?

What did the court decide?

Smt. Devi v. Smt. v Anusuyadevi

Case brief

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