Allowed

M/S Suresh Family Trust v. Sri G Kannappa

Karnataka HC14 Oct 2024WP/40399/2017

Case brief

AI extract

What is this about?

Held that Defendant Nos. 4 and 5, having been impleaded as necessary parties in a succession/title dispute, must be afforded an opportunity to contest the suit. The High Court set aside the Trial Court's rejection of their counters claim per Order VIII Rule 6A CPC, directing that their belated written statement be accepted.

What did the court decide?

Impugned order rejecting counter claim under CPC Order VIII Rule 6A set aside; written statement of respondents 4 and 5 taken on record; suit remanded for framing of issues and disposal.

M/S Suresh Family Trust Vs Sri G Kannappa — Property and Title | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:41740 WP No. 40399 of 2017

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 14^TH DAY OF OCTOBER, 2024

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE R. NATARAJ

¶6

WRIT PETITION NO.40399 OF 2017 (GM-CPC)

¶7

BETWEEN:

¶8

M/S. SURESH FAMILY TRUST A FAMILY TRUST, HAVING ITS OFFICE AT NO.7/2, R.V.ROAD, BASAVANAGUDI, BENGALURU-560004 2. M/S. SHREYAS TRUST A FAMILY TRUST HAVING ITS OFFICE AT NO.3, CHURCH STREET, BASAVANAGUDI, BANGALORE-560004 REP BY ITS MANAGING TRUSTEE, SMT.S GAYATRI

¶9

Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

¶10

BOTH PETITIONERS NO.1 AND 2 REPRESENTED BY GPA HOLDER SRI. K.V.SHIVAKUMAR, S/O. LATE K. VISHWANATHAIAH SETTY, AGED ABOUT 69 YEARS, R/AT NO.3, CHURCH STREET, BASAVANAGUDI, BANGALORE-560004

¶11

…PETITIONERS

¶12

(BY SRI. V.B. SHIVAKUMAR, ADVOCATE)

¶13

AND:

¶14

SRI. G. KANNAPPA S/O. LATE GOPAL, SINCE DEAD BY HIS LRS:

¶15

SRI. K. SWAMINATHAN, S/O LATE G KANNAPPA, AGED ABOUT 54 YEARS,

¶16

2 - NC: 2024:KHC:41740 WP No. 40399 of 2017

¶17

SRI K. ARUMUGAM AGED ABOUT 57 YEARS, S/O LATE KANNAPPA,

¶18

SMT. R. SHANTHI AGED ABOUT 65 YEARS, D/O LATE G KANNAPPA,

¶19

SMT. R. FATHI AGED ABOUT 59 YEARS, S/O LATE G. KANNAPPA,

¶20

SRI K. DORAIRAJ AGED ABOUT 56 YEARS, S/O LATE G KANNAPPA,

¶21

RESPONDENTS NO.1 TO 5 ARE RESIDING AT NO.177, 10^TH CROSS, FLOWER GARDEN, MYSORE ROAD, BANGALORE-560018

¶22

SMT. S. SELVI AGED ABOUT 64 YEARS, W/O SRI. S. SHANMUGAM, D/O LATE G. KANNAPPA, RESIDING AT NO.168/9, 2^ND FLOOR, MUDALIAR STREET, NETTAKALLAPPA CIRCLE, BASAVANAGUDI, BANGALORE-560004

¶23

SRI. K. BALAKRISHNA AGED ABOUT 54 YEARS, S/O LATE G KANNAPPA, OLD THARAGPET, BANGALORE-560053

¶24

SRI. KRISHNAMURTHY S/O LALE G. KANNAPPA, SINCE DEAD AND NO ISSUES,

¶25

SMT. UNNAMALAI, AGED ABOUT 65 YEARS, W/O LATE MURUGESAN,

¶26

3 - NC: 2024:KHC:41740 WP No. 40399 of 2017

¶27

SRI RAJAMANIKKAM AGED ABOUT 64 YEARS, S/O LATE MURUGESAN,

¶28

SRI ADIMOOLAM AGED ABOUT 58 YEARS, S/O LATE MURUGESAN,

¶29

SRI POONGAN AGED ABOUT 59 YEARS, S/O LATE MURUGESAN,

¶30

SRI V P ARUNACHALAM S/O SRI PERUMAL,

¶31

SINCE DEAD REPTD BY HIS LRS,

¶32

SRI. A. ASAITHAMBI, AGED ABOUT 36 YEARS, S/O G. KANNAPPA,

¶33

SRI. A. ANBALAZHAGAN AGED ABOUT 34 YEARS, S/O G KANNAPPA,

¶34

RESPONDENT NO.8 TO 13 ARE RESIDING AT MUNICIPAL NO.30, (NEW NO.313) MANAVARTHIPET OLD TEVPET, BANGALORE-560053

¶35

SRI. R. KANNAN AGED ABOUT 50 YEARS, S/O RATHINASWAMY, PROPRIETOR OF KANNAN CHARCOL DEPOT,

¶36

SMT. INDIRANI D/O LATE MUNISWAMY, W/O PALANI, SINCE DEAD NO LEGAL HEIRS,

¶37

SRI. S. SAIT, AGED ABOUT 48 YEARS, S/O SRI SALA MUTHU, RESPONDENT NO.14 AND 15 ARE RESIDING AT NO.30, NEW NO.313, MANAVRTHIPET, OLD THARAGUPET,

¶38

4 - NC: 2024:KHC:41740 WP No. 40399 of 2017

¶39

BANGALORE-560053.

¶40

CHOTE SAB S/O LATE FAKEER AHMED SINCE DECEASED BY HIS LRS,

¶41

SMT. MUMTAZ BEGUM, AGED ABOUT 60 YEARS, W/O SRI CHOTESAB,

¶42

MISS. SHAMSHUNNISA @ SHABEEN TAJ, AGED ABOUT 39 YEARS, D/O SRI CHOTESAB

¶43

MISS SOGRABI @ JABEE TAJ AGED ABOUT 36 YEARS, D/O SRI CHOTESAB

¶44

MR. MOHAMED NAWAZ @ JAMEEN TAJ AGED ABOUT 35 YEARS, S/O SRI CHOTESAB

¶45

MR. KHAJA MOINUDDIN AGED ABOUT 26 YEARS, S/O SRI CHOTESAB

¶46

RESPONDENTS NO.16 TO 20 ARE RESIDING AT NO.168, V.R.NAGAR, WHITE FIELD, BANGALORE-560066

¶47

THE CORPORATION OF THE CITY OF BANGALORE, CORPORATION OFFICES, BANGALORE-560002 REPRESENTED BY ITS COMMISSIONER

¶48

THE REVENUE OFFICER (NORTH) REVENUE DEPARTMENT, CHICKPET RANGE, BANGALORE CITY CORPORATION, BANGALORE-560053

¶49

…RESPONDENTS

¶50

(BY SRI. MOHAMMED NASIRUDDIN, ADVOCATE FOR RESPONDENT NOS.3, 4, 6, 7, 9, 10, 12 TO 14;

¶51

5 - NC: 2024:KHC:41740 WP No. 40399 of 2017

¶52

SRI. N.R.JAGADEESHWARA, ADVOCATE FOR RESPONDENT NOS.21 AND 22;

¶53

NOTICE SERVED ON RESPONDENT NOS.1, 2, 5, 11 AND 15;

¶54

VIDE ORDER DATED 02.02.2023 LEGAL REPRESENTATIVES OF RESPONDENT NO.8 ARE ALREADY ON RECORD AS RESPONDENT NOS.9 TO 11;

¶55

VIDE ORDER DATED 07.08.2024, NOTICE TO RESPONDENT NOS.16 TO 20 IS HELD SUFFICIENT)

¶56

THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 11.08.2017 IN O.S.NO.2262/1988 I.A. FILED UNDER ORDER VIII RULE 6 OF CPC ON THE FILE OF THE XLI ADDL CITY CIVIL JUDGE, BENGALURU CITY (CCH NO.42) VIDE ANNEXURE-A.

¶57

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶58

CORAM: HON'BLE MR JUSTICE R. NATARAJ

¶59

ORAL ORDER

¶60

The defendant Nos.4 and 5 in O.S. No.2262/1988 on the file of City Civil Judge, Bengaluru have filed this writ petition challenging the correctness of an order dated 11.08.2017 passed by XLI Additional City Civil Judge, Bengaluru by which, an application filed by them under Order VIII Rule 6A of Civil Procedure Code to consider their counter claim was rejected.

¶61

The suit in O.S.No.2262/1988 was filed for declaration to declare that the plaintiffs were the absolute

¶62

6 - NC: 2024:KHC:41740 WP No. 40399 of 2017

¶63

owners of the suit property by virtue of a Will dated 25.06.1970 executed by Smt. Anooramma in favour of Smt. Lakshmamma. They also sought for a declaration to declare that the transfer of khata of the suit property by the defendant Nos.2 and 3 in the name of defendant No.1 as illegal and unsustainable and also consequently sought for revocation of the khata.

¶64

The sum and substance of the averments made in the plaint are that Smt. Anooramma was the owners of the suit property and that Smt. Lakshmamma, Sri. Muniswamy and Sri. Selmuttu had occupied the suit property and put up temporary structures with the permission of Smt. Anooramma. Smt. Anooramma allegedly executed a Will dated 25.06.1970 bequeathing the suit property to Smt. Lakshmamma. Smt. Anooramma died in the year 1973, consequent to which, Smt. Lakshmamma claimed that she became the owner of the suit property. She applied for transfer of khata which was accepted and her name was entered in the municipal records. When she applied for tax paid clearance certificate on 23.12.1983, the respondent No.3/Assistant Revenue Officer issued an endorsement calling upon her to produce the documents for verification etc., Smt. Lakshmamma produced

¶65

7 - NC: 2024:KHC:41740 WP No. 40399 of 2017

¶66

the documents but the Assistant Revenue Officer who collected the documents did not return them. The plaintiffs contended that Smt. Lakshmamma, leased out a portion of the suit property to plaintiff No.12 for running a hotel. Later in the year 1983, she entered into a transaction to sell that portion of the suit property to plaintiff No.12 for a sale consideration of Rs.75,000/- and plaintiff No.12 paid the sale consideration in installments. Smt. Lakshmamma died on 16.09.1986. The plaintiff No.12 claimed that he was placed in possession of the suit property under the agreement and that he was in possession continuously from them on. The plaintiff No.13 was also in the possession of portion of a suit property under a lease for running charcoal business and Smt. Lakshmamma had agreed to sell that portion for a sum of Rs.30,000/- and received Rs.22,000/- and placed him in possession. The plaintiffs claimed that Smt. Lakshmamma had allowed the heirs of late Muniswamy and late Sella Muthu to reside in portions of the suit property and did not claim any rent from them. The plaintiff Nos.14 and 15 who claimed title under late Muniswamy and late Sella Muthu claimed that they were in adverse possession. Further it was claimed that

¶67

8 - NC: 2024:KHC:41740 WP No. 40399 of 2017

¶68

plaintiff No.1 had leased out a portion of the suit schedule property to M. Ibrahim Saheb on 23.01.1985. The plaintiff claimed that Smt. Lakshmamma died on 16.09.1986 leaving behind plaintiff Nos.1 to 11 as her legal heirs and were in possession of suit property. They claimed that they were aware of the transactions between Smt. Lakshmamma and plaintiff Nos.12 and 13 as well as plaintiff Nos.14 and 15. They claimed that plaintiff Nos.7 to 11 were making arrangements to get khata of the suit property transferred to the name of plaintiff No.1 and conclude the transactions with plaintiff Nos.12 and 13. When things stood thus, they came to know that the defendant No.1 was asserting title to the suit property and that the municipal records were transferred to his name. He alleged that the plaintiffs did not have right, title and interest in the suit property. The plaintiffs claimed that they realized later that the defendant No.1 had no manner of title to the suit property and their efforts to persuade the defendant Nos.2 and 3 to revoke the khata in the name of defendant No.1, were of no avail. The plaintiffs were therefore advised to seek aforesaid relief's in the suit.

¶69

9 - NC: 2024:KHC:41740 WP No. 40399 of 2017

¶70

The suit was contested by the defendant No.1 who denied the averments of the plaint and contended that the suit property belonged to his ancestors. He claimed that at a partition dated 11.02.1939, the property fell to his father's share, who later executed a relinquishment deed dated 13.05.1940 in favour of his brother - Shaik Moideen Saheb. Later in terms of a sale deed dated 16.03.1942, his father and grand mother purchased the suit property from Shaik Moideen Saheb. From then on, the father of defendant No.1 was in exclusive possession of the suit property till he died on 06.08.1947. After death of this father, the defendant No.1 was enjoying the suit property. He claimed that he initiated probate proceedings in P & SC No.10017/87 before III Additional City Civil Judge, Civil Station, Bengaluru for issuance of a succession certificate. The Trial Court in terms of the order dated 30.06.1987 issued letters of administration in favour of defendant No.1. Following the above, the property was transferred to the name of defendant No.1. He claimed that neither Smt. Anooramma nor Smt. Lakshmamma had any right, title and interest in the suit property.

¶71

10 - NC: 2024:KHC:41740 WP No. 40399 of 2017

¶72

The defendant Nos.4 and 5 also filed written statement denying the plaint averments. They claimed that they were a family trust and that they purchased a property from Mr. Fakeer Ahmed in terms of a sale deed dated 18.06.1988. This property was provided with a municipal No.30, Manvarthpet, Bengaluru. They claimed that Mr.Fakeer Ahmed got the property at a partition dated 11.02.1939. He thereafter sold it to Mohiudeen Sahib in terms of a sale deed dated 13.05.1940. Later Mohiudeen Sahib re-conveyed it to Mr. Fakeer Ahmed and his mother under a sale deed dated 16.03.1942. The said Mr. Fakeer Ahmed had two sons namely, Abdul Jaleel, Chote Sab and defendant No.1 as his legal heirs. They claimed that Mr. Chote Sab conveyed title of the suit property. They claimed that Smt. Anooramma was a tenant who was inducted in to the suit property. The said Smt. Anooramma had no title to the suit property and therefore, subsequent transactions brought about by her were all false and fraudulent. The defendants sought for counter claim of mandatory injunction directing the plaintiffs to remove the unauthorized and illegal construction put up on the suit property.

¶73

11 -

¶74

NC: 2024:KHC:41740 WP No. 40399 of 2017

¶75

An additional written statement was filed by

¶76

defendant Nos.4 and 5 contending that Mr. Chote Sab had conveyed the property in favour of M/s. Suresh Family Trust and M/s. Shreyas Trust and inducted them in possession. The defendant No.3 also filed written statement denying the averments of the plaint.

¶77

The Trial Court framed issues and set down the case for trial. The plaintiff No.5 was examined as PW.1 on 28.09.2005. The defendant Nos.4 and 5 filed I.A. No.1/2009 to consider the counter claim pleaded in the written statement. Later PW.1 was cross-examined by defendant Nos.4 and 5. The power of attorney of defendant Nos.4 and 5 was examined as DW.1 and he marked Exs.D1 to D11. They sought for further time to lead evidence on the counter claim, at that stage, it was brought to notice of the Court that I.A.No.1/2009 was still pending consideration. The Trial Court noticed that the defendant No.5 had filed the application to consider the counter claim pleaded in the written statement. The Trial Court held that the defendant No.5 had mentioned a wrong provision in the application as Order VIII Rule 6 of Civil Procedure Code instead of Order VIII Rule 6A of Civil Procedure Code. None the

¶78

12 - NC: 2024:KHC:41740 WP No. 40399 of 2017

¶79

less, it proceeded to treat it as an application under Order VIII Rule 6A of Civil Procedure Code. The Trial Court held that the defendants were though entitled to file a counter claim, it had to be filed at the time of filing the written statement. It noticed that the defendant Nos.4 and 5 were impleaded in the suit on 02.07.2008 and the defendants filed their written statement on 27.02.2009. It held that the period of 90 days expired on 01.10.2008, while the counter claim made by the defendants was on 27.02.2009. Hence, the Trial Court rejected the application in terms of the impugned order.

¶80

The learned counsel for the defendant Nos.4 and 5 submitted that the defendants were served with notice of the suit 02.07.2008 and that they filed written statement on 27.2.2009. He contends that when once the Court was of the opinion that the defendant Nos.4 and 5 were necessary parties, it must have given an opportunity to the defendants to establish their case. He contends that no prejudice would be caused to the plaintiffs, if the written statement filed by them is accepted.

¶81

13 - NC: 2024:KHC:41740 WP No. 40399 of 2017

¶82

Per contra, the learned counsel for the plaintiffs contended that allowing a belated written statement and a counter claim, would cause undue hardship to the plaintiffs and also protract the proceedings. He therefore, contended that the impugned order passed by the Trial Court be upheld.

¶83

I have considered the submissions of the learned counsel for the plaintiffs as well as the learned counsel for the defendant Nos.4 and 5.

¶84

The defendant Nos.4 and 5 filed I.A.No.13 under Order XXII Rule 10(2) read with Order 1 Rule 10(2) of Civil Procedure Code to implead them as additional defendants. The said application was allowed on 07.06.2008 and they were arrayed as defendant Nos.4 and 5 in the suit. The plaint was amended on 02.07.2008. The plaintiffs then challenged the said order before this Court in W.P.No.12138/2008. The said writ petition was dismissed on 27.01.2009. The case was posted for filing an amended plaint but it was not filed till 27.02.2009. The defendant Nos.4 and 5 filed I.A.No.1/2009 on 27.02.2009 to consider the counter claim pleaded in the written statement along with the written statement of defendant Nos.4 and 5 filed

¶85

14 -

¶86

NC: 2024:KHC:41740 WP No. 40399 of 2017

¶87

on 27.02.2009. No doubt, the defendant Nos.4 and 5 soon after being impleaded in the suit, must have filed the written statement. It is not known whether the order allowing defendant Nos.4 and 5 to come on record was stayed in W.P. No.12138/2008. Since the defendants did not file their written statement within the time allowed under Order VIII Rule 1 of Civil Procedure Code, they could not have ordinarily raised a counter claim. Be that as it may, since defendant Nos.4 and 5 were brought on record as necessary parties, they had to be given an opportunity to contest the suit on merits, more particularly when they and defendant No.1 were sailing in the same boat. It is contended by defendant Nos.4 and 5 that the suit property is transferred to them, by Mr.Chote Saheb and hence, in the circumstances of the case it was appropriate that they were permitted to contest the suit on merits.

¶88

In that view of the matter, though the written statement was belated, it did not prejudice the case of the plaintiffs in any manner whatsoever. Consequently, the written statement filed by the defendant Nos.4 and 5 and the counter claim made therein had to be accepted by the Trial Court.

¶89

15 -

¶90

NC: 2024:KHC:41740 WP No. 40399 of 2017

¶91

Hence, the following:

¶92

ORDER

¶93

(i) Petition is allowed.

¶94

(ii) The impugned order dated 11.08.2017 passed by the XLI Additional City Civil Judge, Bengaluru City (CCH-42) in O.S.No.2262/1988 is set aside.

¶95

(iii) The written statement filed by the defendant Nos.4 and 5 is ordered to be taken on record. The Trial Court is directed to proceed to frame issues and dispose off the suit in accordance with law.

¶96

Sd/(R. NATARAJ) JUDGE

¶97

¶98

List No.: 1 Sl No.: 61

M/S Suresh Family Trust v. Sri G Kannappa

Case brief

What is this about?

What did the court decide?

M/S Suresh Family Trust v. Sri G Kannappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Shri M D Chandrashekar Vs Indian Bank

T. Srinivasa Murthy S/O T Thimmaiah Vs Janatha Seva Co-Operative Bank Ltd.

Sijo Varghese Vs Union of India

Shankarappa Vs Maheshwarappa

Smt K N Vasantha Vs Smt M G Jamunachandra

Sri. Balachandra R Vs Shashidhar Gowda H D