Allowed

Sri. T. Ramesh v. Sri. B.L. Ravindra

Karnataka HC4 Dec 2024WP/11621/2023

Case brief

AI extract

What is this about?

High Court allowed a writ petition challenging rejection of I.A.'s to recall evidence and summon witnesses. Held that defendants deserved an opportunity to prove execution of a palupatti for collateral purposes regarding severance of joint family status, subject to costs. Impugned order set aside.

What did the court decide?

Impugned order set aside; I.A.Nos. 36-39 allowed; witness summoned; Ex.D66 referred to forensic expert; Rs.25,000 costs payable by defendants.

Sri. T. Ramesh Vs Sri. B.L. Ravindra — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:50113 WP No. 11621 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 11621 OF 2023 (GM-CPC)

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BETWEEN:

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SRI. T. RAMESH S/O. LATE GOVIGOWDANA THIMMEGOWDA, AGED ABOUT 55 YEARS, R/A AT ABALWADI VILLAGE, KOPPA HOBLI, MADDURU TALUK, MANDYA DISTRICT-571 425.

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SRI. KRISHNA S/O. LATE GOVIGOWDANA THIMMEGOWDA, AGED ABOUT 69 YEARS, R/A NO.2936, 10^TH MAIN, 'E' BLOCK, 2^ND STAGE, RAJAJINAGAR, BANGALORE-560 010.

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SRI. K. CHANNEGOWDA S/O LATE KARIYAPPA, AGED ABOUT 83 YEARS, R/AT NO.419/D, NO.44, 5^TH CROSS, 1^ST PHASE, 1^ST STAGE, GOKULA, BANGALORE-560 054.

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…PETITIONERS

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(BY SRI. SADANAND G. SHASTRI, ADVOCATE)

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AND:

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SRI. B.L. RAVINDRA S/O LATE B.T. LINGAIAH, AGED ABOUT 62 YEARS, R/A MAIN ROAD KOPPA, MADDURU TALUK-571 428, MANDYA DISTRICT.

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SRI. B.L. GOPAL S/O. LATE B.T. LINGAIAH, AGED ABOUT 59 YARS, R/AT MAIN ROAD KOPPA, MADDURU TALUK-571 428, MANDYA DISTRICT.

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SRI. B.L. DAYANANDA SINCE DEAD BY HIS LRS

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SMT. H.R.PREMA KUMARI W/O LATE B.L.DAYANANDA, AGED ABOUT 46 YEARS,

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SMT. NAMRUTHA D., D/O LATE B.L.DAYANANDA, AGED ABOUT 25 YEARS,

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MR. RAGHAVENDRA D., S/O LATE B.L. DAYANANDA, AGED ABOUT 21 YEARS,

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ALL RESIDING AT: R/A MAIN ROAD KOPPA, MADDURU TALUK-571428, MANDYA DISTRICT.

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SRI. B.L. SHIVANANDA S/O. LATE B.T. LINGAIAH, AGED ABOUT 43 YEARS, R/AT T. BELEKERE KOPPA, MADDURU TALUK-571 428, MANDYA DISTRICT.

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SMT. JAYAMMA SECOND W/O. B.T. LINGAIAH, AGED ABOUT 72 YEARS, R/A NO.35/1, 11B CROSS, ANANDAPPA LAYOUT, VRUSHABAVATHINAGAR, KAMAKSHIPALYA, BANGALORE-560 079.

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SMT. B.L. VIJAYALAKSHMI D/O LATE B.T. LINGAIAH,

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W/O KUMARA, AGED ABOUT 50 YEARS, MADAPPANA, KOPPA, HEBBARALLU POST, MADDURU TALUK-571 425, MANDYA DISTRICT.

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SMT. B. PADMAVATHI D/O. LATE B.T. LINGAIAH, AND W/O. D.R. RAMANNA, AGED ABOUT 69 YEARS, R/AT NO.1576, 11^TH CROSS, 'C' BLOCK, DOUBLE ROAD, KUVEMPUNAGAR, MYSORE-570 023.

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SMT. B.L. SUNANDA D/O LATE B.T. LINGAIAH, W/O. T. MARIYAPPA, AGED ABOUT 66 YEARS, R/AT NO.74, 3^RD CROSS, KENGERI SATELLITE TOWN, BANGALORE-560 060.

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SRI. SHIVALINGAIAH S/O. LATE GARIGOWDA, AGED ABOUT 57 YEARS, R/AT T. BELEKERE KOPPA, MADDURU TALUK-571 428, MANDYA DISTRICT.

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SRI. B. ASHOK S/O. LATE N. BILAYAIAH, AGED ABOUT 55 YEARS, R/A ABALAVADI VILLAGE, KOPPA HOBLI, MADDUR VILLAGE-571 425, MANDYA DISTRICT.

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SRI. SUJARAM S/O BURARAM, AGED ABOUT 52 YEARS, R/A KOPPA VILLAGE, MADDUR TALUK-571 425, MANDYA DISTRICT.

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NC: 2024:KHC:50113 WP No. 11621 of 2023

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SMT. A.M. SARVAMANAGALA, W/O B.L.GOPINATH, AGED ABOUT 39 YEARS, R/A HARDWARE SHOP, KOPPA MAIN ROAD, KOPPA POST, MANDYA DISTRICT-571425.

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…RESPONDENTS

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(BY SRI. ROOPESHA B., ADVOCATE FOR RESPONDENT NOS.1 TO 5; SRI. M.G.RAVISHA, ADVOCATE FOR RESPONDENT NOS.9 AND 10; NOTICE SERVED ON RESPONDENT NOS.6, 12, 13 AND 14; VIDE ORDER DATED 23.11.2024, NOTICE TO RESPONDENT NOS.7 AND 11 IS DISPENSED WTIH)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE ORDER DATED 24.05.2023 IN OS NO. 4440/2006 ON THE FILE OF THE COURT OF THE LV ADDL CITY CIVIL AND SESSIONS JUDGE BENGALURU CITY (CCH-56) AT ANNEXURE-A AND CONSEQUENTLY ALLOW THE IA NO.36-39/2023 DTD 09.03.2023 FILED BY THE PETITIONER HEREIN AT ANNEXURE-E1-E4 IN TOTO.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The defendant Nos.6 to 8 in O.S.No.4440/2006 on the file

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of LV Additional City Civil and Sessions Judge, Bengaluru (henceforth referred to as 'Trial Court' for short) have filed this petition challenging an order dated 24.05.2023 by which, the applications (I.A.Nos.36 to 39) filed by them to recall the stage of the suit and permit them to lead further evidence, to send Ex.D66 for scientific examination and an application to summon the attesting witness to the panchayat parikat were all rejected.

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NC: 2024:KHC:50113 WP No. 11621 of 2023

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(i) A suit in O.S.No.4440/2006 was filed for

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partition and separate possession of suit schedule property. The defendant Nos.6 to 8/petitioners herein were the purchasers of portion of item No.1 of the suit schedule property from the defendant No.1. They contended that portion of item No.1 which was purchased by them was originally owned and possessed by the father of the plaintiffs and defendant No.1, he having purchased it in terms of the sale deed dated 08.09.1982. They contended that the father of the plaintiffs and defendant No.1 allowed the properties to be partitioned on 20.03.1993 which was evidenced by an unregistered document. Consequent to the partition, the portion purchased by them fell to the share of defendant No.1. Later the father of the plaintiffs and defendant No.1 executed a gift deed dated 16.02.2004 in favour of the defendant No.1. The defendant Nos.6 to 8/petitioners herein contended that they purchased a portion of the suit schedule property from the defendant No.1 and thus were all lawful owners of suit schedule property and therefore, the suit for partition in respect of property purchased by them was not maintainable.

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(ii) Based on these contentions, the suit was set down for trial. The evidence of the plaintiffs and defendant Nos.6 to 8 was recorded. When the suit was set down for arguments, the defendant Nos.6 to 8 filed four applications namely I.A.Nos.36 under Section 151 of Civil Procedure Code (henceforth referred to as 'CPC' for short) to recall the stage of the suit, posting the case for arguments and permit them to lead further evidence, I.A.No.37 under Section 151 of CPC to reopen the stage of the case to lead further evidence, I.A.No.38 under Order XXVI Rule 10A read with Section 151 of CPC to appoint a handwriting expert to compare the signatures found on Ex.D66 and I.A.No.39 under Order XVI Rule 2 of CPC to summon the attesting witness to the partition dated 20.03.1993 (Ex.D66).

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(iii) These applications were opposed by the plaintiffs who contended inter alia that the defendant Nos. 6 to 8 were the purchasers of portion of item No.1 of suit schedule property during the pendency of the suit. Therefore, they contended that defendant Nos.6 to 8 were not bonafide purchasers of item No.1 of suit schedule property. They claimed that adequate opportunity was provided to them to lead their evidence and that the defendants have filed the applications at the stage

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NC: 2024:KHC:50113 WP No. 11621 of 2023

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when the suit was set down for arguments. They referred to various dates on which, DW.3 was cross-examined and contended that the applications filed by defendant Nos.6 to 8 were designed only to protract the proceedings. Similarly objections were filed by the defendant No.4 and 5 praying the Court to reject the applications as the same were meant to protract the proceedings. The Trial Court in terms of the impugned order rejected all the applications primarily on the ground that Ex.D66 which was relied upon by the defendant Nos.6 to 8 was not duly registered and sufficient duty was not paid thereon. Therefore, it held that no purpose would be served by appointing an expert to compare the signatures on an inadmissible document as that would not aid the defendants in any manner whatsoever.

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Being aggrieved by the said order, the defendant

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Nos.6 to 8 are before this Court in this writ petition.

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The learned counsel for the defendant Nos.6 to 8/petitioners herein contended that Ex.D66 was marked in evidence. He contends that the plaintiffs were also signatories to the palupatti dated 20.03.1993 (Ex.D66) and therefore, to establish the fact that there was severance of status between

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8 - NC: 2024:KHC:50113 WP No. 11621 of 2023

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the plaintiffs and defendant No.1, it was necessary that the said document is proved. He contended that the defendant Nos.6 to 8 intended to examine the witness on Ex.D66 to establish the lawful execution of the said document. Besides, he contends that the lawful execution of Ex.D66 also had to be proved so as to corroborate the other documents placed on record, which were a consequence of partition dated 20.03.1993. Therefore, he contended that the Trial Court must have afforded an opportunity to the defendant Nos.6 to 8 to establish that there was severance of status between plaintiffs and defendant No.1.

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Per contra, the learned counsel for the defendant Nos.4 and 5 contended that Ex.D66 was marked subject to objection. He contends that Ex.D66 was not duly stamped and was not registered. Therefore, no purpose would be served in allowing the defendant Nos.6 to 8 to prove the said document, as the same is inadmissible in evidence. He further contends that after the completion of evidence of the defendants and when the suit was posted for arguments, these applications were filed which indicate that the same were filed only to protract the proceedings, after the arguments of the plaintiffs and defendant Nos.4 and 5 were advanced and at the stage

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when the case was set down for arguments of defendant Nos.6 to 8.

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The learned counsel for the plaintiffs also adopted the contentions of the learned counsel for the respondent Nos.4 and 5.

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The suit was filed for partition and separate possession of plaintiffs' share in the suit schedule property. The defendant Nos.6 to 8 purportedly purchased a portion of the suit item Nos.1 and 2 from defendant No.1. In their written statement, the defendant Nos.6 to 8 specifically contended that the properties purchased by them were the self acquisition of father of plaintiffs and defendant No.1, he having purchased it in terms of a sale deed dated 08.09.1982 and they also contended that the father of the plaintiffs and the defendant No.1 entered into a partition dated 20.03.1993 in terms of which, the portion of the property purchased by them fell to the share of defendant No.1. They claimed that following the partition, the father of plaintiffs and defendant No.1 executed a gift deed in favour of defendant No.1 on 16.02.2004. They claimed that they purchased a portion of suit item No.1 from defendant No.1 in terms of a sale deed dated 14.09.2006.

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They also contended that based on the partition dated 20.03.1993, revenue records were brought out in the name of defendant No.1. They also claimed that the plaintiffs were signatories to the palupatti dated 20.03.1993. Though this document was marked as Ex.D66 subject to objection, this document could still be looked into for collateral purposes namely that plaintiffs and defendant No.1 had severed the status of joint family. If that be so, the defendant Nos.6 to 8 were bound to prove execution of the palupatti dated 20.03.1993. No doubt, the defendants Nos.6 to 8 could have availed the opportunity of leading evidence of a witness to Ex.D66 at the earliest point in time. They could not have laid low from the stage of the evidence of the defendants till the arguments in the suit was addressed by the plaintiffs and defendant Nos.4 and 5. However, since this was a crucial fact that defendant Nos.6 to 8 had to prove to establish that the sale in their favour is just and lawful, an opportunity deserves to be granted to the defendant Nos.6 to 8, but however on terms.

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8. Consequently, this writ petition is allowed . The

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applications filed by the defendant Nos.6 to 8 (I.A.Nos.36, 37,

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38 and 39 are allowed and the impugned order dated 24.05.2023 passed by the Trial Court is set aside. Defendant Nos.6 and 8 are entitled to summon the witness to the partition dated 20.03.1993. The Trial Court is directed to refer the document - Ex.D66 along with the admitted signatures of plaintiffs on the plaint, vakalath and other documents to a forensic expert for examination in accordance with law. This is however subject to payment of cost of Rs.25,000/- payable to the plaintiffs on the next date of hearing.

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The Trial Court is requested to dispose off the suit as early as possible, at any rate, within a period of three months from the date of report of the commissioner.

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Sd/(R. NATARAJ) JUDGE

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List No.: 1 Sl No.: 9

Sri. T. Ramesh v. Sri. B.L. Ravindra

Case brief

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Sri. T. Ramesh v. Sri. B.L. Ravindra

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