Partly allowed

1.A. Smt. Renuka W/O. Shivaling Yagannavar v. 1A. Smt. Renuka Wd/O. Gajanan Naik

Karnataka HC16 Dec 2024RFA/100263/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed an appeal filed under Section 96 CPC. The impugned judgment dismissing the suit for forgery allegations was set aside. The matter was remitted to the trial court for fresh consideration with additional evidence admitted. An interim stay on alienation was also granted.

What did the court decide?

Impugned judgment and decree set aside; appeal allowed in part; matter remitted to trial court for fresh consideration with additional evidence; interim restraint on alienation of suit property grante

1.A. Smt. Renuka W/O. Shivaling Yagannavar Vs 1A. Smt… — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:18302 RFA No. 100263 of 2022

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 16^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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REGULAR FIRST APPEAL NO. 100263 OF 2022 (DEC/INJ-)

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BETWEEN:

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SMT. RENUKA W/O. SHIVALING YAGANNAVAR, AGE. 45 YEARS, OCC. HOUSEHOLD, R/O. HULLOLI, TALUKA. HUKKERI, DISTRICT. BELAGAVI, PIN CODE-591305

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SMT. KALAPANA BHARATESH MARENNAVAR, AGE. 42 YEARS, OCC. HOUSEHOLD, R/O. MACHHE, TALUKA AND DISTRICT. BELAGAVI, PIN CODE-590014.

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Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA

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SMT. SAVITRI RAVI KURABAR, AGE. 39 YEARS, OCC. HOUSEHOLD, R/O. SANIKOPPA, TALUKA. BAILHONGAL, DISTRICT. BELAGAVI, PIN CODE-591125.

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SHRI. BASAVARAJ S/O. GUNDU KURABAR AGE. 38 YEARS, OCC. AGRICULTURE, R/O. NO.#141, LAXMI GALLI, OLD BELAGAVI, TALUKA AND DISTRICT. BELAGAVI, PIN CODE-590005.

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…APPELLANTS

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(BY SRI. SHREEVATSA HEGDE, ADVOCATE)

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2 - NC: 2024:KHC-D:18302 RFA No. 100263 of 2022

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AND:

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1 SMT. RENUKA W/O GAJANAN NAIK, AGE. 62 YEARS, OCC. HOUSEHOLD, R/O. IVTH CROSS, BHAGYANAGAR, BELAGAVI, TALUKA AND DISTRICT - BELAGAVI, PIN CODE-590006.

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SHRI. RUSHIKESH S/O. GAJANAN NAIK, AGE. 37 YEARS, OCC. BUSINESS, R/O. IVTH CROSS, BHAGYANAGAR, BELAGAVI, TALUKA AND DISTRICT- BELAGAVI, PIN CODE-590006.

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SMT. POOJA D/O. GAJANAN NAIK AGE. 37 YEARS, OCC. HOUSEHOLD, R/O. IVTH CROSS, BHAGYANAGAR, BELAGAVI, TALUKA AND DISTRICT- BELAGAVI, PIN CODE-590006

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SMT. PRIYANKA D/O. GAJANAN NAIK, AGE. 40 YEARS, OCC. HOUSEHOLD, R/O. IVTH CROSS, BHAGYANAGAR, BELAGAVI, TALUKA AND DISTRICT. BELAGAVI, PIN CODE-590006.

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SHRI. PRAVIN S/O. UDAY HONSHETTI, AGE. 53 YEARS, OCC. BUSINESS, R/O. B. C. NO.21/25, KILLA, CAMP, BELAGAVI, TALUKA AND DISTRICT- BELAGAVI, PIN CODE-590001.

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3 - NC: 2024:KHC-D:18302 RFA No. 100263 of 2022

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SMT. LAXMI LOHAR AGE. 47 YEARS, OCC. NIL, R/O. OPPOSITE TO NO.7, KBS SCHOOL, FULBAG GALLI, BELAGAVI-590001, TALUKA AND DISTRICT. BELAGAVI.

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…RESPONDENTS

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(R1 TO R3 & R6 ARE SERVED BUT UNREPRESENTED; R4- NOTICE IS HELD SUFFICIENT; R5- DISPENSED WITH)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER XLI RULE 1 OF THE CIVIL PROCEDURE CODE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 10.12.2021 PASSED BY THE HON’BLE PRINCIPAL SENIOR CIVIL JUDGE & CJM., BELAGAVI IN O.S.NO.116/2024 AND IF THE HON’BLE COURT COMES TO THE CONCLUSION THAT THE EVIDENCE IS INSUFFICIENT TO DECIDE THE PRESENT APPEAL, THE SAID O.S.NO.116/2014 MAY KINDLY BE REMANDED TO THE TRIAL COURT TO LEAD FURTHER EVIDENCE, IN THE INTEREST OF JUSTICE AND EQUITY.

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

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CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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4 - NC: 2024:KHC-D:18302 RFA No. 100263 of 2022

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ORAL JUDGMENT

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Heard. Plaintiff has filed a suit seeking a declaration and injunction that power of attorney dated 11.07.2013 alleged to have been executed by the plaintiff in favour of defendant No.2 is null and void and sale deed executed by defendant No.2 in favour of defendant No.1 i.e. the sale deed dated 19.11.2013 is null and void.

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The plaintiff contends that the signature on the alleged power of attorney is forged and plaintiff was impersonated before the notary and based on the concocted power of attorney a sale deed is executed in respect of the suit property in favour of defendant No.1.

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The defendant No.1 died and his legal representatives were brought on record. Defendant No.3 is arrayed on the premise that she acted in collusion with defendant No.2 to steel the plaintiff’s photographs. The defendants remained ex-parte before the trial court.

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The original plaintiff died during the pendency

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of the suit. The legal representatives were brought on record. One of the legal representatives of the original plaintiff namely his son is examined as PW-1. And documents are produced in support of plaintiff’s claim. The trial Court did not appreciate the evidence on the premise that plaintiff’s son is not competent witness to give evidence relating to alleged fraud and misrepresentation pleaded by the plaintiff. Consequently, the suit is dismissed. Aggrieved by the aforementioned judgment and decree, the plaintiffs are in appeal.

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The respondents though served, remained

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absent. Before the trial Court, since they remained ex-

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parte, this Court is of the view that there is no need to issue further notice relating to final hearing. It is also noticed that earlier notice issued was relating to final hearing.

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Sri Shreevatsa Hegde, Learned counsel appearing for the plaintiffs/appellants would submit that the plaintiffs have proved their case by adducing sufficient evidence. It is his contention that evidence led by the plaintiffs is not disputed by the defendants and it remained unchallenged. He would further contend that there is no reason to disbelieve the evidence of plaintiffs as there was no counter narrative by the defendants. It is his contention that the trial Court committed a grave error in disbelieving the evidence of PW-1 on the premise that PW1 is not a competent witness to speak relating to fraud and misrepresentation pleaded by the original plaintiff.

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It is his further contention that original plaintiff could not lead evidence as she died before the commencement of trial. Later, legal representatives have come on record. The legal representatives step into the shoes of the original plaintiff and based on the pleadings and other materials, the evidence is adduced before the trial Court and the trial Court is not justified in disbelieving

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7 - NC: 2024:KHC-D:18302 RFA No. 100263 of 2022

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the version of the PW-1 merely because he is not a party to the transaction in dispute. He would further contend that once the legal representatives of the deceased plaintiff are allowed to come on record, it should be deemed that they step into the shoes of the original plaintiff and their evidence carry as much weightage as the evidence of the original plaintiff.

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He would also contend that the appellants have produced additional documents by filing applications under order 41 Rule 27 of the Code of Civil Procedure. This Court has perused the records. The appellants have produced 11 documents by way of additional evidence. One of the documents is said to be the General Power of Attorney dated 01.07.2016 said to have been executed by original plaintiff. It is stated that the said document is a registered document and it bears the signature of original plaintiff and it is further stated that one more document is the affidavit of original plaintiff sworn on 01.03.2016 which again according to the appellants bears the

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signature of original plaintiff. In addition to that, the pleadings and order sheet in few more suits in respect of the same properties are sought to be produced by way of additional documents. In addition to that, the death certificate of original plaintiff and order passed by the Assistant Commissioner and Deputy Commissioner and the RTC of the property bearing Survey No.56/1 are sought to be produced.

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This Court has perused the documents. On going through the said documents, this Court is of the view that the documents sought to be produced by way of additional documents require consideration as they have bearing on the final outcome of the proceedings.

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It is also noticed that the respondents are not before this Court. Under these circumstances, the impugned judgment and decree are to be set-aside and the matter is to be remitted to the trial court for fresh consideration in accordance with law. The application filed

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by the appellants for production of additional documents is

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allowed with all just exceptions provided under law.

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The appellants have also filed application at I.A. No.2/2024 to restrain the respondents from alienating the suit schedule properties. This Court has perused the said application. The appellants apprehend imminent threat of alienation of suit schedule properties. This Court has remitted the matter to the trial court for fresh consideration. There is no material to disbelieve the allegations made in the affidavit. Under these circumstances, the respondents are restrained from alienating the suit schedule properties till further orders to be passed by the trial court.

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The respondents are at liberty to move an application for vacating or modifying the interim order. If such an application is filed, the same shall be considered in accordance with law.

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13. Hence, the following:

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ORDER

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i) Appeal is allowed in part.

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ii) The judgment and decree dated 10.12.2021 in O.S. No.116/2014 passed by the Principal Senior Civil Judge, Belagavi, are set-aside.

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iii) The matter is remitted to the trial court for fresh consideration in accordance with law.

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iv) The trial Court shall issue notice to the defendants and thereafter, permit the defendants to file written statement within 30 days from the date of their appearance and thereafter, shall consider the case on merits.

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v) It is made clear that this Court has not expressed anything on the merits of the claim of either of the parties.

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vi) All contentions kept open.

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vii) Registry of this office shall send all the documents produced along with the application

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for production of additional documents to the trial Court.

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viii) The plaintiff shall appear before the trial court on 16.01.2024. The trial court shall issue notice to the defendants.

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ix) I.A. No.2/2024 is allowed as ordered above.

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Sd/(ANANT RAMANATH HEGDE)

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JUDGE

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CHS List No.: 2 Sl No.: 13

1.A. Smt. Renuka W/O. Shivaling Yagannavar v. 1A. Smt. Renuka Wd/O. Gajanan Naik

Case brief

What is this about?

What did the court decide?

1.A. Smt. Renuka W/O. Shivaling Yagannavar v. 1A. Smt. Renuka Wd/O. Gajanan Naik

Case brief

What is this about?

What did the court decide?

What the court decided

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