Allowed

Sri N Manju v. Sri Narayana

Karnataka HC14 Jun 2023RFA/796/2008

Case brief

AI extract

What is this about?

In this first appeal against a decree dismissing a suit for partition, the High Court of Karnataka held that newly produced documents raised factual disputes. The trial Court erred in treating them as irrelevant without fresh consideration. The appeal was allowed, the impugned judgment set aside, and the matter remitted for a fresh trial.

What did the court decide?

The impugned judgment is set aside. The matter is remitted to the trial Court for fresh consideration.

Sri N Manju Vs Sri Narayana — Partition | Karnataka HC (2023)

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NC: 2023:KHC:20458 RFA No. 796 of 2008

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD REGULAR FIRST APPEAL NO. 796 OF 2008 (PAR)

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BETWEEN:

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SRI N MANJU AGED ABOUT 35 YEARS S/O SRI NARAYANA R/AT NO 22, NATARAJA BUILDING BTS LAYOUT MAIN ROAD ARAKERE VILLAGE BANNERGHATTA ROAD BANGALORE-560076.

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…APPELLANT

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(BY SRI. K C SHANTA KUMAR.,ADVOCATE SRI. K.S VENKATARAMANA, ADVOCATE)

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AND:

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SRI NARAYANA

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Digitally signed by DHANALAKSHMI MURTHY Location: High Court of Karnataka

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AGED ABOUT 60 YEARS R/O BILAKAHALLI, BEGUR HOBLI BANGALORE SOUTH. SINCE DECEASED LR’S.

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1a. SMT. MARAKKA W/O LATE NARAYANA AGED ABOUT 41 YEARS R/AT NO.22, NATARAJA BUILDING BTS LAYOUT MAIN ROAD ARAKERE VILLAGE BANNERGHATTA ROAD BANGALORE-560076.

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1b. SMT. SARASAMMA

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W/O LATE NARAYANA

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NC: 2023:KHC:20458 RFA No. 796 of 2008

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AGED ABOUT 36 YEARS.

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1c. SRI. CHANDRASHEKARA AGED ABOUT 14 YEARS S/O LATE NARAYANA BEING MINOR REPRESENTED BY NATURAL GUARDIAN MOTHER SMT. SARASAMMA.

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1d. SMT. MANJULA @ VANAJAKSHI AGED ABOUT 20 YEARS D/O LATE NARAYANA.

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1b, 1c & 1d ARE R/AT NO.192, BELEKHALLI LAYOUT BANNERGHATTA ROAD BANGALORE-560 076.

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SRI VEMANNA

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AGED ABOUT 43 YEARS S/O LATE M PUTTAIAH R/O NO 152, LALBAGH FORT ROAD DODDAMAVALLI, BANGALORE.

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3. SRI B S NAGARAJ

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AGED ABOUT 39 YEARS S/O SRI B V SAMPATH R/O NO 16, 28 CROSS GEETHA COLONY, 4 BLOCK JAYANAGAR, BANGALORE 11.

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…RESPONDENTS

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(BY SRI.CHANDRASHEKARA S., ADVOCATE SRI. VIVEK HOLLA, ADVOCATE FOR R2 & R3: NOTICE TO R1(D) SERVED & UNREPRESENTED)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF THE CPC AGAINST THE JUDGEMENT AND DECREE DATED: 31.03.08 PASSED IN OS NO. 4607/06 ON THE FILE OF THE XVIII ADDL. CITY CIVIL JUDGE, (CCH.NO.32),

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3 - NC: 2023:KHC:20458 RFA No. 796 of 2008

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BANGALORE, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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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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This appeal under Order XVI Rule 1 read with Section 96 of the CPC is filed by the plaintiff challenging the judgment and decree dated 31.03.2008 passed by the

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XVIII Additional City Civil Judge at (CCH No.32), Benglauru City in O.S.No.4607/2006 whereby the suit filed by the plaintiff has been dismissed.

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For the sake of the convenience, the parties are

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referred to as per their ranking before the Trial Court.

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The case of the plaintiff is that the plaintiff is the son of defendant No.1. Defendant No.1 had inherited the suit schedule property from his ancestors. The plaintiff has the legitimate share in the suit schedule property. To denial the plaintiff’s share, defendant No.1 has sold the suit schedule property to defendant Nos.2 and 3. The plaintiff has demanded the partition of the suit schedule

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4 - NC: 2023:KHC:20458 RFA No. 796 of 2008

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property with defendant No.1. When defendant No.1 refused to give share of the plaintiff, the plaintiff has filed the suit for partition and separate possession.

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On service of summons, defendant Nos.1 to 3

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were served and unrepresented and they have placed ex-parte.

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On the basis of pleadings of the parties, the trial Court has framed the following point for

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consideration:

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“Whether plaintiff is entitled for the relief claimed in the suit?”

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To prove the case, the plaintiff examined himself as PW-1 and produced 4 documents. Defendants neither examined any witness nor produced any documents. On the basis of oral and documentary evidence, the trial Court has dismissed the suit. Being aggrieved by the same, the plaintiff is before this Court in this appeal.

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NC: 2023:KHC:20458 RFA No. 796 of 2008

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The learned counsel appearing for the

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appellant/plaintiff has contended that defendant No.1 has executed a Sale Deed dated 04.08.2003 behind the back of plaintiff and it is not for the benefit of plaintiff or family necessity. The Sale Deed dated 04.08.2003 is not binding on the plaintiff. The trial Court has erred in holding that the sale is for the benefit of plaintiff and the other family members. The respondents have not appeared before the trial Court. First time, they have appeared before this Court and produced agreement of sale and General Power of Attorney which are not registered. He further contended that in those documents, the signatures of the plaintiff has been forged and the same has been disputed by the plaintiff. Hence, he sought for allowing the appeal.

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Per contra, learned counsel for the

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respondents/defendants has contended that the plaintiff as well as his father has executed an agreement of sale after receiving the sale consideration amount and they have also executed the GPA. On the basis of the documents, the

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NC: 2023:KHC:20458 RFA No. 796 of 2008

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Sale Deed has been registered. Since the property has been sold for the benefit of the plaintiff as well as the family members, the trial Court has rightly rejected the suit filed by the plaintiff.

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Heard the learned counsel for the parties.

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Perused the judgment and decree and also original records.

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The point that arises for consideration in this appeal is as follows:

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“ Whether the judgment and decree passed by the trial Court is erroneous, arbitrary and does it calls for any interference by this Court.”

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It is not in dispute that defendant No.1 is the father of the plaintiff. The suit schedule property is an ancestral property. Plaintiff No.1 has inherited the property from their ancestor. The suit schedule property was allotted to the share of defendant No.1 in the partition deed dated 10.01.2003. Further case of the plaintiff that the Sale Deed executed by plaintiff No.1 in favour of

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7 - NC: 2023:KHC:20458 RFA No. 796 of 2008

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defendant Nos.2 and 3 is behind the back of plaintiff and the same is not for the benefit of the plaintiff and his family members.

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Before the trial Court, defendant Nos.2 and 3 has been served and unrepresented. Defendant Nos.2 and 3 have appeared before this Court and filed the objection and produced the document to show that there is an agreement of sale executed by the plaintiff as well as the father of defendant No.1. The plaintiff’s father is also executed a GPA. This document has been produced first time before this Court. Learned counsel for the plaintiff has disputed the same and he has also disputed the signature of the plaintiff.

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Under this circumstance and in the interest of justice, I am of the opinion that the matter requires to be remitted back to the trial Court for fresh consideration.

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Accordingly, the appeal is allowed . The impugned judgment passed by the trial Court is set-aside. The

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matter is remitted back to the trial Court for fresh

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consideration.

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Defendants are permitted to file necessary written statement and the plaintiff is also at liberty to file necessary application for amendment of plaint, if law permits.

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The parties are at liberty to adduce additional evidence and produce additional documents to establish their case.

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The trial Court is directed to reconsider the matter

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afresh, in accordance with law.

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Sd/JUDGE

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List No.: 1 Sl No.: 48

Sri N Manju v. Sri Narayana

Case brief

What is this about?

What did the court decide?

Sri N Manju v. Sri Narayana

Case brief

What is this about?

What did the court decide?

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