Smt Cheluvamma Vs Narayana

6(a) SMT. MANJULA D/O LATE SIDAMMA, W/O K.HIRAIAH AGED ABOUT 60 YEARS, NO.54,1^ST CROSS, 1^ST STAGE, BEHIND INDIAN GAS AGENCY K.H.B. COLONY, NANJANAGUD.

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6(b) SRI. SIDDARAJU S/O LATE SIDDAMMA AGED ABOUT 56 YEARS, SARAGUR VILLAGE, BILILGERE HOBLI, NANJANAGUD TALUK.

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NC: 2025:KHC:44674 RSA No. 711 of 2010

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…RESPONDENTS

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(BY SRI. ABHINAV RAMANAND, ADVOCATE FOR R1,R2 & R6 (A &B),

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VIDE ORDER DATED 07.02.2023, R1 & R2 ARE THE LR'S OF R4, and R3 AND R5 HAVE NO LRs. AS PER THE MEMO FILED BY THE LEARNED COUNSEL FOR THE APPELLANTS DATED 30.01.2023)

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THIS RSA IS FILED UNDER SECTION 100 R/W ORDER 42 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 24.11.2009 PASSED IN RA.NO.180/2008 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-IV, MYSORE. PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 30.08.2008 PASSED IN OS.NO.498/2000 ON THE FILE OF THE II ADDL.CIVIL JUDGE (SR.DN), MYSORE.

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

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the plaintiff in O.S.No.498/2000, on the file of II Addl.Civil Judge (Sr.Dn.,) & CJM, Mysuru, (for short, `trial Court') being aggrieved by the judgment and decree dated

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24^th November 2009, passed in R.A.No.180/2008, on the

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file of Presiding Officer Fast Track Court-IV, Mysuru, (for

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short, `first Appellate Court').

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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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It is the case of the plaintiff that one Kunta was

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the propositus of the family. He had three sons by name, Cheluvaiah @ Doddagandu, second one is Tutiyaiah and third one is Chikkagandu. Cheluvaiah married twice. Manchamma was his first wife and Smt.Lakshmamma was his second wife. Cheluvaiah had a daughter by name Siddamma through his first wife and through his second wife, he had two daughters by name Cheluvamma w/o Dasaiah, and second daughter-Cheluvamma @ Chikkacheluvamma, and her husband's name is Mahadeva.

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The second son of Kunta by name Tutiyaiah is no more and he had a daughter by name Siddamma i.e., the 5^th defendant. The third son of Kunta by name Chikkagandu had a son by name Cheluvaiah. He died

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leaving behind his wife, daughter and two sons, they are defendant Nos.1 to 4.

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It is the contention of the plaintiff that suit

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properties were belonging to Cheluvaiah @ Doddagandu. After the death of Cheluvaiah @ Doddagandu, Cheluvamma and Cheluvamma @ Chikkacheluvamma succeeded to the property. Cheluvamma @ Chikkacheluvamma and her husband have mortgaged 2 acres of land by a Mortgage Deed dated 21.02.1970 in favour of 6^th defendant. The 6^th defendant is in possession of the said 2 acres of land i.e., B' schedule property, and the remaining portion of the property i.e., C' schedule property is in the possession and enjoyment of the plaintiff. Defendant Nos.1 to 5 having no right, title and interest over the property and are trying to interfere in the suit schedule properties. With these reasons, plaintiff was seeking the relief of declaration of title of the plaintiff over

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`A' schedule property and the relief of permanent injunction restraining defendant Nos.1 to 5 from

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interfering with the peaceful and enjoyment of the suit schedule properties.

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Defendant Nos.1 to 5 filed their written statement

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denying the plaint averments. It was contended that suit was bad for non-joinder of necessary parties; plaintiffs were not at all in possession of the property. With these

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reasons, they prayed to dismiss the suit.

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The trial Court framed the following issues :

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1. Whether the plaintiff proves the genealogical tree as alleged in the plaint?

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2. Does she prove her title over suit `A' schedule property?

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3. Does she further prove her lawful possession over suit `C' schedule property as on the date of the suit?

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4. Whether the alleged interference is true?

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5. Whether the court fee paid is sufficient?

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6. Whether the suit is bad for non-joinder of necessary parties?

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7. Whether the plaintiff is entitled to the reliefs

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as sought?

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8. What order or decree?

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Plaintiff to prove her case, examined herself as

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PW-1 and got marked 15 documents as per Exs.P-1 to P-15. On behalf of the defendants, no oral or documentary evidence was produced.

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The trial Court after hearing the arguments, answered issue Nos.1 to 5 and 7 in the affirmative and issue No.6 in the negative and decreed the suit by the judgment and decree dated 30.08.2008.

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The defendant Nos.1, 2, 4 and 5 filed an appeal in R.A.No.498/2000 before the first Appellate Court challenging the judgment and decree passed in O.S.No.498/2000. The first Appellate Court after hearing the arguments of both side, framed the following points for its determination :

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1. Whether the suit is bad for non-joinder of necessary parties?

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2. Whether the judgment and decree passed by the trial court is capricious, illegal and call for interference by the appellate court?

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3. What order?

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The first Appellate Court on re-considering the materials on record, answered point No.1 in the affirmative and point No.2 in the negative and ultimately allowed the appeal by setting aside the judgment and decree passed in O.S.No.498/2000, by its judgment and decree dated 24^th November 2009. The plaintiff is challenging the divergent findings in the present appeal.

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This Court admitted the appeal to consider the following substantial question of law :

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" When the Trial Court had decreed the suit and answered issue No.6 in `Negative' holding that the suit is not barred for non-joinder of necessary parties, whether the First Appellate Court was justified in reversing the judgment and decree of the Trial Court and in the absence of any specific plea in

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the written statement and the evidence on record, wrongly held that the suit suffers from non-joinder of necessary parties and in doing so, did not assign consistent and cogent reasons to overcome the findings of Trial Court and thereby committed an error and illegality in the impugned judgment and decree?"

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Learned counsel for the appellants contended

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that the suit was filed for a relief of declaration and permanent injunction. The branch of Cheluvaiah @ Doddagandu seeks the relief of declaration and consequential relief of injunction against the grandchildren of Chikkagandu i.e., brother of Cheluvaiah @ Doddagandu. Defendant Nos.1, 2, 4 and 5 are not claiming title over the suit property. Except for bare denial in their written statement, they have not made out any

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case about their title over the property. Anyone of the co-owner or joint owners of the property can seek the relief to protect the interest of other co-owners against third parties. Unfortunately, except the plaintiff, all the members of branch of Cheluvaiah @ Doddagandu are no

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more. Cheluvamma @ Chikkacheluvamma and her husband Mahadeva died issueless. Under these circumstances, the first Appellate Court would not have dismissed the appeal on the said ground. The appellants are not seeking any relief against the persons who are not parties to the proceedings. The first Appellate Court erroneously answered the said point in the affirmative and on technical grounds, allowed the appeal by dismissing the suit. The said finding is erroneous. Therefore, the said judgment passed by the first Appellate Court is perverse, which requires to be set aside.

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Learned counsel for respondent Nos.1 and 2 and 6(a) and (b) supports the judgment and decree passed by the first Appellate Court. He further submits that, it is the duty of the appellant to prove her case, as well as pleadings in the plaint. In the absence of necessary parties, the first Appellate Court rightly dismissed the suit by allowing the appeal. Even the trial Court answered issue No.6 in the negative. The appellant ought to have

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taken note of the same and impleaded necessary parties and they have failed to do so. They filed an application before this Court to bring the legal heirs of first wife of Kunta.

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He further contended that the first Appellate Court has not considered the other points involved in the matter, except not including the necessary parties. If at all the substantial question of law is to be answered in favour of the appellant, then the matter has to be remanded to the first Appellate Court for reconsidering the matter on merits. With these reasons, prayed to dismiss the appeal.

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The trial Court as noted above, framed as many as seven issues and discussing the materials on record, answered all the issues in the negative, except issue No.6, which was answered in the affirmative and granted the relief in favour of the plaintiff-appellant. Defendant Nos.1, 2, 4 and 5 have filed appeal in R.A.No.180/2008. The learned first Appellate Judge in the impugned

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judgment noted the grounds of appeal or the grounds urged before him while considering the first appeal. The main grounds urged by the appellants were that they had not given proper and just opportunity to cross-examine PW-1 and lead their evidence. The trial Court hurriedly disposed of the matter and on that line, prayed to set aside the judgment and decree passed by the trial Court. The first Appellate Court considered the said points urged by the appellants in the first appeal and held that the said contentions were not tenable. Thereafter, the first Appellate Court considered the merits of the matter and mainly considered issue No.6 which has been answered by the trial Court and held that suit was bad for non-joinder of necessary parties. On that ground, it allowed the appeal and set aside the judgment and decree passed by the trial Court.

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As submitted by the learned counsel for the appellant, mere fact that the defendants have contended that the suit was bad for non-joinder of necessary parties

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cannot be a reason to pass adverse orders against the plaintiff. In the written statement, except denial of the averments made in the plaint, the defendants have not made out any affirmative case, asserting any right over the property. It was also not their case, that the suit properties were joint family properties or a co-ownership properties of parties to the suit. When no such grounds have been made out, the non-inclusion of other family members cannot be a reason for dismissal of the suit. However, if the presence of such persons is necessary for the proper adjudication of the real dispute between the parties, then the non-inclusion of necessary parties would be fatal to the suit.

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The plaintiff is claiming title over the suit property on the basis that the property originally belonged to Cheulavaiah @ Doddgandu and, after his death, it devolved upon his legal heirs, and at present, plaintiff succeeded to the said property. It is the contention of the plaintiff that defendants 1, 2, 4, and 5 are interfering with

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her peaceful possession and enjoyment of the property, which compelled her to file the present suit to protect her interest.

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At the cost of repetition, defendants have not made out a case that they have right over the suit property. They have also not explained as to who are other persons having right over the property and in their absence, right of plaintiff cannot be declared. Mere taking such a vague contention in the written statement cannot be a reason for dismissal of the appeal. Therefore, the suit was not bad for non-joinder of necessary parties. The findings of the First Appellate Court on this issue are erroneous, and based on such illegal findings, the First Appellate Court has set aside the judgment and decree passed by the Trial Court. Hence, the substantial question of law is to be answered in favour of the plaintiff, and the impugned judgment and decree passed by the First Appellate Court deserve to be set aside.

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Accordingly, I proceed to pass the following :

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ORDER

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i) The Appeal is allowed.

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ii) The impugned judgment and decree dated 24^th November 2009, passed by Presiding Officer, Fast Track Court-IV, Mysuru, in R.A.No.180/2008, is set aside.

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iii) The judgment and decree dated 30^th

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August 2008, passed in O.S.No.498/2000, by

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the II Addl.Civil Judge (Sr.Dn.,) & CJM, Mysuru, is confirmed.

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iv) Since the appeal itself is disposed,

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pending IAs. also stands disposed of.

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v) Draw decree accordingly.