Allowed

Smt.Mayamma v. Smt.T.Lalitha

Karnataka HC3 Sept 2024RFA/1825/2014

Case brief

AI extract

What is this about?

Appeal against a decree for partition granting plaintiffs 1/7th share each. The High Court found defendants were not served notice after transfer of the suit and could not lead evidence, set aside the judgment and decree, and remitted the matter to the trial court for fresh consideration with all contentions left open.

What did the court decide?

Judgment and decree dated 28.11.2013 in O.S.No.423/2009 set aside; matter remitted to trial court for fresh consideration.

Smt.Mayamma Vs Smt.T.Lalitha — Partition | Karnataka HC (2024)

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NC: 2024:KHC:35986-DB RFA No. 1825 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF SEPTEMBER, 2024

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PRESENT

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THE HON'BLE MR JUSTICE S.G.PANDIT AND

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THE HON'BLE MR JUSTICE C.M. POONACHA REGULAR FIRST APPEAL NO. 1825 OF 2014 (PAR)

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BETWEEN:

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SMT MAYAMMA,

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W/O LATE J C THIMMARAYAPPA AGED ABOUT 80 YEARS R/AT NO.62, OLD MADRAS ROAD BEHIND HOTEL SHREE UPHAAR OPP: CAUVERY COMPLEX ULSOOR, BANGALORE-560008,

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Digitally signed by BHARATHI S Location: HIGH COURT OF KARNATAKA

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APPELLANT NO.1 DIED APPELLANT NO.2 AND RESPONDENT NOS.2 TO 4 ARE THE LR'S OF APPELLANT NO.1. (AMENDMENT CARRIED OUT AS PER ORDER DATED: 23.07.2024)

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SRI T GIRIRAJ,

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S/O LATE J C THIMMARAYAPPA, AGED ABOUT 58 YEARS, R/AT NO.6, 3^RD MAIN, NEXT TO MANRATH ENTERPRISES (HP GAS) DOMLUR 2^ND STAGE, BANGALORE-560071.

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SRI T JAGADISH, S/O LATE J C THIMMARAYAPPA, AGED ABOUT 50 YEARS, R/A NO.3415, 2^ND CROSS,

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10^TH ‘A’ MAIN, OPP. INDIRANAGAR,

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2 - NC: 2024:KHC:35986-DB RFA No. 1825 of 2014

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WATER TANK, BANGALORE-560038.

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…APPELLANTS

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(BY SRI D.R RAVISHANKAR, SR. ADVOCATE FOR SRI RAMESH H.E., ADVOCATE)

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AND:

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SMT.T.LALITHA, D/O LATE J C THIMMARAYAPPA, & W/O SRI VISWANATH, AGED ABOUT 56 YEARS, R/A 568-MIG 707 SFC, 4^TH CROSS, 4^TH PHASE, YELAHANKA NEW TOWN, BANGALORE-560054.

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KUM. T. NEERAJAKSHI, D/O LATE J C THIMMARAYAPPA, AGED ABOUT 60 YEARS, R/A #62, OLD MADRAS ROAD, BEHIND HOTEL SHREE UPHAAR, OPP: CAUVERY COMPLEX, ULSOOR, BANGALORE-560008.

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SRI T SOMASHEKAR, D/O LATE J C THIMMARAYAPPA, C/O KODANDARAMA REDDY, AGED ABOUT 63 YEARS, R/AT. NO.815, 10^TH CROSS INDIRANAGAR, 2^ND STAGE, BENGALURU -560038.

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SRI T VENUGOPALA, S/O LATE J C THIMMARAYAPPA, AGED ABOUT 48 YEARS, R/AT. #62, OLD MADRAS ROAD, BEHIND HOTEL SHREE UPHAAR, OPP: CAUVERY COMPLEX, ULSOOR, BENGALURU-560008.

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3 - NC: 2024:KHC:35986-DB RFA No. 1825 of 2014

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SRI R NARAYANAPPA, S/O T RANGAPPA, AGED ABOUT 48 YEARS, R/AT MAHIMA NILAYA, CHIKKABIDARAKALLU, NAGASANDRA POST, BANGALORE-560073.

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SRI DEVARAJ, S/O LATE CHANNAPPA, AGED ABOUT 51 YEARS, R/A PLEGAMMA TEMPLE ROAD, SRIKATAPURA (ANCHEPALYA), NAGASANDRA POST, BANGALORE-560073.

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…RESPONDENTS

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(BY SRI NISHCHAL DEV, ADVOCATE FOR R3 & R4, SRI B. RAVINDRA PRASAD, ADV. FOR R6, R1 AND R5 SERVED,

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R2 - NOTICE HELD SUFFICIENT V/O/DT: 06.08.2024)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.11.2013 PASSED IN OS.NO.423/2009 (OLD OS NO.849/06) ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., NELAMANGALA, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL, COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE S.G.PANDIT

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and

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HON'BLE MR JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE S.G.PANDIT)

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Defendant Nos.1, 3 and 4 in O.S.No.423/2009

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on the file of the Senior Civil Judge and JMFC,

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4 - NC: 2024:KHC:35986-DB RFA No. 1825 of 2014

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Nelamangala are in appeal under Section 96 of Code of Civil Procedure questioning the judgment and decree dated 28.11.2013, by which the suit of plaintiffs i.e., respondent Nos.1 and 2 herein is decreed holding that the plaintiffs are entitled for 1/7^th share each in the suit schedule properties by metes and bounds. It is also declared that the sale deed dated 21.03.2005 executed by defendant Nos.1 to 5 in favour of defendant Nos.6 to 8 are not binding on the plaintiffs’ share and defendant Nos.6 to 8 are also restrained from alienating the suit schedule properties.

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Heard Sri D.R. Ravishankar, learned Senior counsel for Sri Ramesh H.E., learned counsel for the appellants, Sri Nishchal Dev, learned counsel for respondent Nos.3 and 4 and Sri B. Ravindra Prasad, learned counsel for respondent No.6-purchaser. The respondent Nos.1 and 5 are served and unrepresented. Notice to respondent No.2 is held sufficient vide order dated 06.08.2024.

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Sri D.R. Ravishankar, learned Senior counsel

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appearing for the appellants i.e., defendant Nos.1, 3 and 4, submits that the respondent Nos.1 and 2 i.e., the plaintiffs, filed suit for partition which was decreed declaring that the plaintiffs are entitled for 1/7^th share in the suit schedule properties without affording any opportunity to the appellants to participate in the proceedings. Learned Senior counsel would submit that suit was initially filed before the Principal Civil Jude (Sr.Dn.), Bangalore Rural District, Bangalore and the suit was numbered as O.S.No.849/2006. The suit was transferred to Nelamangala on establishment of Court of the Senior Civil Judge and JMFC at Nelamangala. The suit was called at Bangalore Rural Court till 17.06.2009. Under order dated 02.07.2009, the suit stood transferred to Senior Civil Judge and JMFC, Nelamangala. Upon transfer, suit was renumbered as O.S.No.423/2009. On transfer, the suit was called on 20.08.2009. On the said date, notice was ordered only to defendant Nos.2 and 5 and no notice was ordered to other defendants.

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6 - NC: 2024:KHC:35986-DB RFA No. 1825 of 2014

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Learned Senior counsel for the appellants would

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submit that the defendant No.3 had filed written statement. Subsequently under order dated 02.06.2011, in respect of defendant No.5, service is held sufficient in terms of Order 5, Rule 9(3) of CPC. Thus, learned Senior counsel would submit that, as no notice was issued, the appellants had no opportunity to participate in the proceedings in the above said suit before the Senior Civil Judge and JMFC, Nelamangala. Further learned Senior counsel would point out from the order sheet that on 03.02.2010, defendant No.2 was placed exparte. Further it is also submitted that, on behalf of plaintiffs, P.Ws.1 and 2 were examined and there was no cross-examination by the defendants and defendants had no opportunity to lead their evidence. Thus, learned Senior counsel would pray that opportunity be provided to the appellants i.e., defendant Nos.1, 3 and 4 to participate in the proceedings. Thus, he prays for setting aside the judgment and decree and to allow the appeal.

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Though the notice is served on respondent Nos.1 and 2 i.e., plaintiff Nos.1 and 2 before the Trial Court, they have remained absent. Learned counsels appearing for respondent Nos.3 and 4 and respondent No.6 have no objection to allow the appeal and to set aside the judgment and decree to provide an opportunity to the appellants to participate in the proceedings.

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Having heard the learned counsel for the parties and on perusal of the records in O.S.No.423/2009 on the file of the Principal Civil Judge (Sr.Dn.) Nelamanga, we are of the considered opinion that the judgment and decree needs to be set aside to provide an opportunity to the appellants as well as other defendants to participate in the proceedings.

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Admittedly, the suit is for partition filed by the plaintiffs i.e., respondent Nos.1 and 2 herein before the Principal Civil Judge (Sr. Dn.), Bangalore Rural Court, Bangalore and the same was numbered as O.S.No.849/2006. On establishment of the Court of the

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8 - NC: 2024:KHC:35986-DB RFA No. 1825 of 2014

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Senior Civil Judge and JMFC, Nelamangala, the suit got transferred under order dated 02.07.2009 and it was renumbered as O.S.No.423/2009. A careful perusal of the order sheet indicates that no notice was ordered to other defendants, except defendant Nos.2 and 5 and service of notice to respondent Nos.2 and 5 is held sufficient and the defendant Nos.2 and 5 are placed exparte. The plaintiffs examined two witnesses as P.Ws.1 and 2. There was no cross-examination, since no notice was issued to other defendants to participate in the proceedings. The defendant Nos.3, 4, 6 to 8 had filed written statement and

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contested the suit of the plaintiffs. The defendants/appellants herein had no opportunity to lead their evidence as notices were not served on them.

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The suit schedule properties consist of two items of immovable properties. The valuable rights of the parties are involved in the suit. Therefore, as the appellants and other defendants had no opportunity to participate in the proceedings, we deem it appropriate to

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9 - NC: 2024:KHC:35986-DB RFA No. 1825 of 2014

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set aside the judgment and decree passed in O.S.No.423/2009 on the file of the Senior Civil Judge and JMFC at Nelamangala and to remit the matter back to the Trial Court for fresh consideration.

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Learned counsel for defendant Nos.2 and 5 submits that they had not filed written statement and seeks leave to file written statement. Since the matter is being remitted back to the Trial Court for fresh consideration, defendant Nos.2 and 5 could be provided an opportunity to file written statement with a condition that the defendant Nos.2 and 5 shall file written statement on the date of appearance before the Trial Court.

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Hence, the following:

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ORDER

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(i) The judgment and decree dated 28.11.2013 in O.S.No.423/2009 on the file of Senior Civil Judge and JMFC at Nelamangala is set aside. The matter is remitted back to the Trial Court for fresh consideration.

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(ii) The parties shall appear before the Trial Court on 14.10.2024.

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(iii) The defendant Nos.2 and 5 shall file written statement on 14.10.2024.

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(iv) The Registry shall return the records forthwith.

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(v) The Trial Court shall proceed further in the suit in accordance with law after providing an opportunity to the parties to participate in the proceedings. The Trial Court shall issue fresh suit summons to the parties, who are not represented in this appeal.

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(vi) All contentions of the parties are left open.

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Sd/(S.G.PANDIT) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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List No.: 1 Sl No.: 31

Smt.Mayamma v. Smt.T.Lalitha

Case brief

What is this about?

What did the court decide?

Smt.Mayamma v. Smt.T.Lalitha

Case brief

What is this about?

What did the court decide?

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