Govind and Ors. Vs Devasing and Ors.

S/O LATE RAJU PAWAR AGE: 17 YEARS, OCC: STUDENT (MINOR), R/O: TALAB TANDA, BALARAM CHOWK WADI, TQ: CHITTAPUR, DIST: KALABURAGI – 585 211. SINCE MINOR REPRESENTED BY NEXT FRIEND APPELLANT NO.2 WHO IS NATURAL MOTHER.

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POONAM D/O LATE RAJU PAWAR, Age: 15 years, OCC: STUDENT (MINOR), R/O: TALAB TANDA, BALARAM CHOWK WADI, TQ: CHITTAPUR, DIST: KALABURAGI – 585 211.

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SINCE MINOR REPRESENTED BY NEXT FRIEND APPELLANT NO.2 WHO IS NATURAL MOTHER.

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…APPELLANTS

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(BY SRI ANIL RATHOD, ADVOCATE)

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AND:

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DEVASING S/O HARISHCHANDRA , AGE: 54 YEARS, OCC: AGRICULTURE, R/O: SHIVARAYA CHOWK WADI, TQ: CHITTAPUR, DIST: KALABURAGI – 585 211.

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RAMU S/O HARISHCHANDRA , AGE: 52 YEARS,

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OCC: AGRICULTURE, R/O: SHIVARAYA CHOWK WADI, TQ: CHITTAPUR, DIST: KALABURAGI – 585 211.

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ASHOK S/O HARISHCHANDRA , AGE: 52 YEARS, OCC: AGRICULTURE, R/O: SHIVARAYA CHOWK WADI, TQ: CHITTAPUR, DIST: KALABURAGI – 585 211.

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KAMALABI W/O PRABHU D/O HARISHCHANDRA , AGE: 56 YEARS, OCC: AGRICULTURE, R/O: SHIVARAYA CHOWK WADI, TQ: CHITTAPUR, DIST: KALABURAGI – 585 211.

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HEERABAI W/O CHANDER D/O HARISHCHANDRA , AGE: 59 YEARS, OCC: AGRICULTURE, R/O: SHIVARAYA CHOWK WADI, TQ: CHITTAPUR, DIST: KALABURAGI – 585 211.

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KAMALABI W/O LATE PANDU AGE: 64 YEARS, OCC: AGRICULTURE, R/O: SHIVARAYA CHOWK WADI, TQ: CHITTAPUR, DIST: KALABURAGI – 585 211.

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RAJU S/O LATE PANDU, AGE: 39 YEARS,

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OCC: AGRICULTURE, R/O: SHIVARAYA CHOWK WADI, TQ: CHITTAPUR, DIST: KALABURAGI – 585 211.

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DHANU S/O LATE PANDU, AGE: 64 YEARS, OCC: AGRICULTURE, R/O: SHIVARAYA CHOWK WADI, TQ: CHITTAPUR, DIST: KALABURAGI – 585 211.

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LALITA W/O LATE PULSING, AGE: 40 YEARS, OCC: COOLI, R/O: SHIVARAYA CHOWK WADI, TQ: CHITTAPUR, DIST: KALABURAGI – 585 211.

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AMBRISH S/O LATE PULSING, AGE: 23 YEARS, OCC: AGRICULTURE, R/O: SHIVARAYA CHOWK WADI, TQ: CHITTAPUR, DIST: KALABURAGI – 585 211.

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…RESPONDENTS

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(BY SRI KADLOOR SATYANARAYANACHARYA, ADVOCATE R1, R3 TO R8 AND R9)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN O.S.NO.16/2020 DATED 13.02.2024 BY SENIOR CIVIL JUDGE AND J.M.F.C., CHITTAPUR AND REMAND BACK THE MATER FOR FRESH DISPOSAL AFTER FILLING WRITTEN STATEMENT IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS REGULAR FIRST APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)

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This appeal is by the legal representatives of the original defendant against a decree for partition in O.S.No.16/2020. The ordinal defendant did not appear before the Court and did not file written statement in time. Thereafter, the case was posted for recording the evidence of the plaintiff. The plaintiffs’ evidence was recorded and the case was posted for pronouncement of Judgment. Earlier to that during the pendency of the suit, the original defendant died and his legal representatives were brought on record.

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The defendants/appellants filed application seeking leave of the Court to file written statement. The trial Court rejected the application on the ground that, the application is not maintainable when the matter is posted

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for pronouncement of Judgment and acting on the evidence of the plaintiffs, has decreed the suit.

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Being aggrieved by the aforementioned

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Judgment and decree, the defendants are before this Court.

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Learned counsel appearing for the

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defendants/appellants would submit that, the defendants could not file written statement, as the defendants were required to secure some property records. He further contend that, the original defendant died during the pendency of the suit and later, his legal representatives were brought on record and sought permission of the Court to file written statement and the same was rejected.

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This Court has noticed that, the suit is one for partition and separate possession. The defendants who came on record as legal representatives of the deceased original defendant, sought permission to file written

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statement when the case was posted for pronouncement of Judgment. The trial Court has rejected same.

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Learned counsel appearing for the appellants

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would contend that, the trial Court has erred in dismissing the application filed seeking leave of the Court to file written statement. He would further submit that, the deceased original defendant is also survived by daughters and the daughters are not made parties and on that ground, the suit itself is defective.

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Learned counsel for the respondents admits

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that, the original defendant is survived by the daughters also.

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Under the circumstances, this Court is of the view that, in case the daughters filed a suit for setting aside the aforementioned Judgment and decree, the Judgment and decree will have to be set aside as the daughters are not parties to the impugned Judgment and decree. Keeping this aspect in mind, this Court is of the

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