Smt Vasanthamma Vs Sri Ramamurthy

6(b) SMT. GAYATHRI D/O LATE LAKSHMINARAYANA, W/O SRI. JAYARAM, AGED ABOUT 33 YEARS, RESIDING AT DODDA ALADARAMA TAVAREKERE HOBLI, MAGADI TALUK, RAMANAGARA DISTRICT

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6(c). SMT. GEETHA D/O LATE LAKSHMINARAYANA, W/O SRI. K.C.NAGENDRA AGED ABOUT 31 YEARS, RESIDING AT KALIPALYA VILLAGE, SOLURU HOBLI, MAGADI TALUK, RAMANAGARA DISTRICT

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6(d). SRI. SHASHIKUMAR @ MANJUNATHA S/O LATE LAKSHMINARAYANA, AGED ABOUT 49 YEARS, RESIDING AT DODDA ALADAMARA, TAVAREKERE HOBLI, MAGADI TALUK BENGALURU RURAL DISTRICT

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…APPELLANTS

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(BY SRI. NAIK N.R, ADVOCATE)

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AND:

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SRI RAMAMURTHY S/O LATE NANJUNDAPPA, AGED ABOUT 65YEARS, RESIDING AT NO.1545 6^TH CROSS, KEMPEGOWDA ROAD, KUMARASWAMY LAYOUT, 1^ST STAGE, BENGALURU-78

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SRI. K. PRAKASH S/O LATE KRISHNAMURTHY AND LATE PRABHAVATHI,

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HC-KAR

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AGED ABOUT 39 YEARS,

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SMT. KALAVATHI S/O LATE KRISHNAMURTHY AGED ABOUT 65 YEARS,

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SRI NAGESH S/O LATE KRISHNAMURTHY, AGED ABOUT 37 YEARS,

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SMT. YASHODHA D/O LATE KRISHNAMURTHY, AGED ABOUT 35 YEARS, ALL ARE RESIDING AT NO.3040, 8^TH B CROSS, 15^TH MAIN, BSK 2^ND STAGE, BENGALURU – 560 070

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…RESPONDENTS

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(BY KUM. GOURA SURKOD, ADVOCATE FOR SMT. MANJU ANAND, ADVOCATE FOR R1; R2 TO R5 – NOTICE SERVED)

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THIS RFA FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 14.06.2018 PASSED IN O.S.NO.2066/2013 ON THE FILE OF THE V ADDITIONAL CITY CIVIL JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR PARTITION.

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

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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HC-KAR

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ORAL JUDGMENT

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The appeal is filed by the plaintiffs questioning the judgment and decree dated 14.06.2018 passed by the Court of V Addl. City Civil Judge, Bangalore City, in O.S.No.2066/2013, thereby, the suit for partition is dismissed but granted an order of temporary injunction against the defendants from dispossessing the plaintiffs from the suit schedule properties without due process of law.

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Rank of the parties is referred to as per their

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rankings before the trial court.

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The plaintiffs have filed the suit for partition by contending that the suit schedule properties are joint family properties of the plaintiffs and defendants, having acquired the same but in the name of defendant No.1 by the Bangalore Development Authority. When the plaintiffs had requested for partition and their shares, the

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HC-KAR

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defendants have denied the same. Therefore, the plaintiffs are constrained to file the suit for partition.

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The defendants appeared through their counsel

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and filed the written statement and contended that defendant No.1 alone is the owner of the property as the suit property was allotted in the name of defendant No.1 exclusively. Therefore, prayed in the written statement to

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dismiss the suit.

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5. The trial court has framed the several issues,

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which are as follows:

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(1) Whether the plaintiffs prove that suit property is the joint family property and they are in joint possession of the suit property?

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(2) Whether the plaintiffs further prove that they have got 1/3^rd share in the suit schedule property?

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(3) Whether valuation of the suit property and payment of court fees is correct?

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(4) Whether the plaintiffs are entitled to 1/3^rd share in the suit schedule property?

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(5) What order or decree?

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HC-KAR

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The plaintiff No.1 examined as PW1 and got

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marked documents Exs.P-1 to P-9 and the defendant No.1 is examined as DW1 and defendant No.5 is examined as DW2 and got marked documents Exs.D-1 to D-12.

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The trial court has dismissed the suit for partition, but granted the order of temporary injunction as above stated. The trial court assigned the reasons that the suit property was exclusively allotted in the name of defendant No.1 and the plaintiffs failed to produce the documentary evidence to prove that the suit property is

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the joint family property having been jointly allotted on behalf of the family. Therefore, dismissed the suit.

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Being aggrieved by the judgment and decree plaintiffs have preferred an appeal by raising various grounds and also filed an application I.A.No.1/2023 for production of additional documentary evidence to be considered in the appeal.

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HC-KAR

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Learned counsel for the appellants submitted

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that the husband of plaintiff No.1 and father of plaintiff Nos.2 to 7 - Lakshmana Murthy, defendant No.1 – Ramamurthy and one Lakshminarayana are brothers and one Nagarathna is the sister. It is submitted that all have filed an application jointly to BDA for allotment of site, but the defendant No.1 being elder in the family therefore requested the BDA to allot the site in the name of defendant No.1 and accordingly, BDA has allotted the site in the name of defendant No.1, but the allotment is on behalf of the joint family and not exclusively in favour of the defendant No.1. Hence, the trial court has dismissed the suit.

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The learned counsel for the appellants submitted by way of additional documentary evidence has produced I.A.No.1/2023 and the plaintiffs have sufficient documentary evidence to prove that the allotted site by the BDA is for and on behalf of the joint family for the plaintiffs and defendants. Therefore, requested to

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HC-KAR

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remand the case to the trial court for fresh consideration

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along with the appeal.

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On the other hand, the learned counsel for the respondents/defendants submitted that the plaintiffs have not produced any documentary evidence to prove the allotment of site is for and on behalf of the joint family. Therefore, the trial court has rightly delivered the judgment and decree, which needs no interference. Therefore, prays to dismiss the appeal.

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Having heard the arguments made by the learned counsel for both parties and on perusal of the

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records, the following point would arise for consideration:

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“(i) Whether, under the facts and circumstances involved in the case, the matter requires remand to the trial court for fresh consideration in view of the application filed in I.A.No.1/2023 under Order 41 Rule 27 CPC?”

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HC-KAR

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Considering the crux of the issue involved in the suit that it is contended by the plaintiffs that suit schedule site was allotted by the BDA is for and on behalf of joint family consisting of plaintiffs and defendants. Rivalry the defendant No.1 is claiming that the suit property is allotted exclusively in the name of defendant No.1. The trial court dismissed the suit for partition, but has granted decree of the permanent injunction against the defendants not to dispossess the plaintiffs without due to process of law.

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In the appeal, the appellants/plaintiffs have produced the application for producing additional documentary evidence by invoking Order 41 Rule 27 of CPC and submitted that there is ample materials to prove that the suit schedule property is the joint family property and also are having chances to prove that the allotment of site from the BDA is jointly on behalf of the family members.

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HC-KAR

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Considering the applications to produce the documentary evidence, those are note sheets maintained by the BDA, which is to be examined and assessed during the trial. When it is the rival contention that suit schedule property is a joint family property as claimed by the plaintiffs and is exclusive property of defendant No.1 as contended by defendant, it is necessary to examine the additional documentary evidence placed in this appeal. Therefore, the application I.A.No.1/2023 is liable to be allowed. When this Court feels it is necessary to consider the documentary evidence, the appeal of the plaintiffs upon submission of grounds for allowing the appeal and also to allow the application, both the application and the appeal are allowed. Accordingly, I answer Point No.(i) in

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the affirmative .

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For the reasons aforestated, I proceed to pass the following:

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ORDER

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(i) The appeal is allowed .

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HC-KAR

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(ii) The judgment and decree dated 14.06.2018 passed by the Court of V Addl. City Civil Judge, Bangalore City in O.S.No.2066/2013, is hereby set aside.

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