Smt H S Geetha Vs Smt Chandhrakala W/O Rajashekarappa

KAVITHA W/O SHIVANAND AGED ABOUT 45 YEARS OPP. GOVT. PRIMARY SCHOOL R/O HOLE MAIN ROAD THALAKAWADU VILLAGE AND POST T NARASI PURA TALUK MYSORE DISTRICT.

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…RESPONDENTS

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(R1, R6 TO R12 ARE SERVED AND UNREPRESENTED V/O DATED: 18.12.2023 R3 TO R5 ARE CALLED OUT ABSENT BY PAPER PUBLICATION )

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED: 04.08.2012 PASSED IN O.S.NO.02/2010 ON THE FILE OF SENIOR CIVIL JUDGE AND CJM, CHAMARAJANAGAR, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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

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CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

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NC: 2025:KHC:21612 RFA No. 2051 of 2012

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HC-KAR

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ORAL JUDGMENT

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This appeal is filed by the plaintiff under Section 96 of the CPC, challenging the judgment and decree dated 04.08.2012 passed in O.S.No.02/2010 by the Senior Civil Judge and C.J.M., Chamarajanagar, dismissing the suit filed by the plaintiff.

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For the sake of convenience, the parties are referred to as per their ranking before the trial court.

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The plaintiff filed a suit for partition and separate possession, claiming that the plaintiff and defendants are Hindu Joint Family Members. One Rudrappa H.B. is the predecessor. One Sarojamma is the wife of H.B.Rudrappa. Rudrappa had three daughters and four sons. Among them, there was a partition. One of the son of H.B.Rudrappa is H.R.Swamy. He had seven daughters and four sons. The plaintiff - H.S.Geeta is one of the daughters of H.R.Swamy. She filed a suit for partition against her sisters and brothers in the property which

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belongs to her father H.R.Swamy. He acquired the said property in the partition between his brothers.

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The further case of the plaintiff is that, the plaintiff is entitled to 1/10^th share in the suit schedule property. After the death of father and mother of the plaintiff, she demanded for partition and separate possession of the suit schedule properties. Three months before filing the suit, when defendant No.2 refused for partition and separate possession, she filed the suit for partition and separate possession.

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On service of summons, defendants appeared through counsel and filed the written statement. Defendant No.4 in his written statement stated that his father H.R.Swamy executed a Will in favour of the plaintiff and the defendants on 26.09.1998. Therefore, the properties are not available for partition.

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On the basis of the pleadings of the parties, the trial court framed the following issues:

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“1. Whether the plaintiff proves that the ‘A’ schedule properties are the ancestral properties?

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2. Whether the plaintiff proves that the ‘B’ schedule properties were belong to the mother of the plaintiff and defendants?

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3. Whether the defendants prove that the H.R.Swamy during his lifetime sold part of the ‘B’ schedule property to nearly 20 persons for their legal necessities?

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4. Whether the defendants prove that the late H.R.Swamy executed a Will in favour of plaintiff and defendants on 26.09.1998?

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5. Whether the plaintiff is entitled for the relief as sought?

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6. What decree or order?

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Additional issues:

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1. Does the plaintiff prove that, site Nos. 1 to 57 formed in Sy.No.639/2, 3A, 3B of Kudalur Grama Panchayath are the joint family properties of plaintiff and defendants?

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2. Does the plaintiff entitled to any share?”

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On appreciation of the oral and documentary

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evidence, the trial court answered issue No.1 in the

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NC: 2025:KHC:21612 RFA No. 2051 of 2012

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affirmative, issue Nos. 2 to 5 and additional issue Nos. 1

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and 2 in the negative and dismissed the suit. Being aggrieved by the same, the plaintiff is before this Court.

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The learned counsel for the plaintiff raised the following contentions:

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(i) Firstly, the plaintiff filed this appeal challenging the judgment and decree, only in respect of item Nos. 1 and 2 of suit schedule ‘A’ property and suit schedule ‘B’ property. In respect of suit schedule ‘A’ property item Nos. 3 and 4 are concerned, the suit is dismissed by the trial court, which is accepted.

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(ii) Secondly, the trial court has given a clear finding that the suit schedule ‘A’ property, item Nos. 1 and 2 is proved to be a joint family property. Inspite of that, no decree has been passed for partition.

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(iii) Thirdly, the suit in respect of suit schedule ‘B’ property is concerned, is dismissed. The plaintiff has not produced any document to prove that it is the joint family property. Now, the plaintiff has filed an application before this Court enclosing the documents, i.e., khata extract to show that the suit schedule ‘B’ property stands in the name of her mother Sarojamma, W/o. H.R.Swamy and encumbrance certificate is also produced to show that, even today, there is no transaction in the said property.

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(iv) Fourthly, the plaintiff is an uneducated lady and she has not been advised to produce the documents. Due to lack of knowledge, she has not produced the documents. After the dismissal of the suit, when she approached the counsel to file an appeal, then only she has been advised to secure necessary documents to prove the title. Thereafter, the documents have been obtained and produced. Hence, he contended that, to that extent, the matter may be sent back to the trial court to give one

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NC: 2025:KHC:21612 RFA No. 2051 of 2012

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more opportunity to the plaintiff to establish the right over the suit schedule properties.

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The respondent is served and unrepresented.

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There is no dispute regarding the relationship of the parties. The plaintiff filed a suit for partition and separate possession in respect of suit schedule ‘A’ and ‘B’ properties. The defendants filed the written statement contending that, there is a Will. They have not produced the Will and the same has not been proved. They have not contested the matter before this Court. Even after service of notice, nobody represented for the respondents/defendants. Now, the plaintiff is not claiming any right over the suit schedule ‘A’ item Nos. 3 and 4. The dismissal of the suit in respect of suit schedule ‘A’ item Nos. 3 and 4 is confirmed. In respect of suit schedule ‘A’ item Nos. 1 and 2 and suit schedule ‘B’ property, the plaintiff has produced some documents before this Court by filing an application. Under these circumstances, to give one more opportunity, I am of the opinion that the

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NC: 2025:KHC:21612 RFA No. 2051 of 2012

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matter requires to be remitted back to the trial court to

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reconsider the matter afresh.

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Accordingly, the following order is passed:

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(i) The appeal is allowed in part.

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(ii) The judgment and decree dated 04.08.2012 passed in O.S.No.02/2010 by the Senior Civil Judge and CJM, Chamarajanagar, dismissing the suit in respect of suit schedule ‘A’ property item Nos. 3 and 4 is confirmed.

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(iii) In respect of item Nos. 1 and 2 of suit schedule ‘A’ property and suit schedule ‘B’ properties are concerned, the same is set aside.

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(iv) In respect of the above items, the trial court is directed to reconsider the matter afresh, after giving opportunity to both the parties, in accordance with law.

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NC: 2025:KHC:21612 RFA No. 2051 of 2012

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(v) The parties are at liberty to file necessary application to produce additional documents. If such an application is filed, the trial court is directed to consider the same and pass orders, in accordance with law, as

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expeditiously as possible, not later than one year from the date of receipt of a copy of this order.

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Sd/(H.T. NARENDRA PRASAD) JUDGE

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CM LIST NO.: 1 SL NO.: 60

Smt H S Geetha v. Smt Chandhrakala W/O Rajashekarappa

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Smt H S Geetha v. Smt Chandhrakala W/O Rajashekarappa

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