Sri Mahesh Vs Smt H S Asha

S/O LATE B BEERAIAH AGED ABOUT 34 YEARS R/O HANAKERE VILLAGE, KASABA HOBLI, MANDYA TALUK MANDYA DISTRICT, ACTUALLY R/AT NO 2, 9^TH B CROSS, AGRAHARA DASARAHALLI MAGADI MAIN ROAD BANGALORE - 560079

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SRI LOKESH

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Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA

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S/O LATE B BEERAIAH AGED ABOUT 33 YEARS R/AT HANAKERE VILLAGE KASABA HOBLI, MANDYA TALUK MANDYA DISTRICT, ACTUALLY R/AT NO 2, 9^TH B CROSS, AGRAHARA DASARAHALLI MAGADI MAIN ROAD BANGALORE - 560079

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…APPELLANTS

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(BY SRI. VARAPRASAD K., ADVOCATE)

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AND:

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SMT H S ASHA D/O V SHIVARAMU AGED ABOUT 27 YEARS

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NC: 2025:KHC:20218 RSA No. 94 of 2014

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R/O HANAKERE VILLAGE, KASABA HOBLI, MANDYA TALUK MANDYA DISTRICT

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SRI V SHIVARAMU S/O LATE VENKATA SHETTY SINCE DECEASED BY HIS LEGAL REPRESENTATIVES

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2(A) SMT. PREMA W/O LATE V. SHIVARAMU AGED ABOUT 64 YEARS (RETIRED TEACHER) R/O HANAKERE VILLAGE NEAR RAILWAY STATION KASABA HOBLI – 571 404 MANDYA TALUK AND DISTRICT

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…RESPONDENTS

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(BY SRI. R PRAMOD, ADVOCATE FOR R1 AND ALSO FOR PROPOSED R2(A) V/O DATED 14.10.2019 APPEAL AGAINST R2 IS ABATED)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 5.12.2013 PASSED IN R.A.NO.7/2012 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE, MANDYA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DTD 23.1.2012 PASSED IN OS.NO.20/2010 ON THE FILE OF ADDITIONAL CIVIL JUDGE (JR.DN.), MANDYA.

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

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular second appeal is filed by the appellants challenging the judgment and decree dated 05.12.2013, passed in R.A.No.7/2012 by the learned Principal Senior Civil Judge and CJM, Mandya.

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For convenience, parties are referred to based on their rankings before the trial Court. The appellants were defendants No.2 and 3, respondent No.1 was the plaintiff and respondent No.2 was defendant No.1.

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Brief facts leading rise to the filing of this appeal are as follows:

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The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that one Venkatashetty @ Kempushetty was the original propositus. He had 6 children i.e, H.V. Venkatamma, H.V.Venkata, V.Shivaram Pream, V.Varalakshmi, H.V.Govinda, and H.V.Nagamma. The

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plaintiff is the daughter of V.Shivaram. It is the case of the plaintiff that parties are Hindus and governed by Mitakshara school of law and they are the members of a Hindu joint family and the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendant No.1. Defendant No.1, since fell to bad company, was not staying with the plaintiff and her mother. He is a vagabond and attempted to waste the joint family amount. As such, a Panchayath was held and the plaintiff demanded her legitimate half share in the suit properties, and defendant No.1 has refused to do so. It is contended that defendant No.1, without the plaintiff’s knowledge, created the nominal documents regarding suit items No.3 and 4, in favour of father of defendants No.2 and 3. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession.

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3.1. The trial Court issued summons to the

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defendants. Defendant No.1 appeared through the counsel, but did not choose to file a written statement.

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Despite service of summons, defendant Nos.2 to 4

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remained unrepresented and they were placed exparte.

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3.2. The trial Court, after recording the evidence,

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and hearing on both sides, framed the following points for consideration.

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Whether the plaintiff is entitled for the

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reliefs as sought for in the plaint?

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1. What order or decree?

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3.3. The plaintiff, to substantiate her case,

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examined herself as PW.1 and marked 8 documents as Exs.P1 to 8. Learned counsel for defendant No.1, did not choose to cross examine PW.1 nor adduce his evidence. The trial Court, on assessment of verbal and documentary evidence answered point No.1 in the affirmative, point No.2 as per the final order. The suit of the plaintiff was partly decreed with costs of Rs.500/- and further directed defendant No.1 to effect partition of the plaintiff’s half share in the suit schedule item Nos.1, 2, 5 and 6

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properties by metes and bounds. The suit of the plaintiff with respect to suit schedule item Nos.3 and 4 was dismissed vide judgment dated 23.1.2012.

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3.4. The plaintiff, aggrieved by the dismissal of the suit in item Nos.3 and 4, preferred an appeal in R.A.No.7/2012. Although notice was issued by the first Appellate Court, defendant No.1 appeared through the counsel and defendant Nos.2 and 3 were placed exparte. The first Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration.

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1. Whether the appellant proves that the judgment and decree passed by the Court below in O.S.No.20/2010 dated 23.1.2012 is perverse, capricious and not based on sound principles of law?

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1. What order?

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3.5. The first Appellate Court, on reassessing the

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verbal and documentary evidence, answered point No.1 in the affirmative, point No.2 as per the final order. The

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appeal was allowed. The judgment and decree passed by the trial Court in O.S.No.20/2010 dated 23.01.2012 was set aside. The suit of the plaintiff was decreed. It is ordered and declared that the plaintiff is entitled to half share in all the suit schedule properties i.e., item Nos.1 to 6 by metes and bounds.

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3.6. Defendant Nos.2 and 3, aggrieved by the

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judgment passed by the first Appellate Court, filed this regular second appeal.

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Heard the arguments of the learned counsel for

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defendant Nos.2 and 3 and the learned counsel for the plaintiff.

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Learned counsel for defendant Nos.2 and 3

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submits that defendant Nos.2 and 3 have not received summons issued by the trial Court. Defendant Nos.2 and 3 were not aware of filing of the suit by the plaintiff. He submits that no opportunity was provided to defendant Nos.2 and 3 to participate in the proceedings before the

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trial Court as well as the first Appellate Court. He submits that the impugned judgments passed by the Courts below are in violation of the principles of natural justice. He submits that impugned judgments may be set aside and remit the matter to the trial Court, reserving the opportunity to defendant Nos.2 and 3, to file the written statement.

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Per contra, learned counsel for the plaintiff

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submits that summons were duly served upon to defendant Nos.2 and 3. Despite service of summons, defendant Nos.2 and 3 remained absent with an intention to harass the plaintiff. Despite service of notice in the first appeal, defendant Nos.2 and 3 remained absent. He submits that both Courts below have provided an opportunity to defendant Nos.2 and 3. Defendant Nos.2 and 3 did not avail the opportunity. He submits that in case, if the Court comes to a conclusion to set aside the impugned judgments, heavy cost may be imposed on

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defendant Nos.2 and 3. Hence, on these grounds, he prays

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to dispose of the appeal.

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This Court, on 05.06.2025, admitted the appeal

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on the following substantial question of law :

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1) Whether the appellants prove that the trial Court has not provided sufficient opportunity to the appellants to put-forth their case?

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2) Whether the impugned judgments passed by the courts below are in violation of principles of natural justice?

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3) What order or decree?

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Perused the records and considered the

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submissions of learned counsel for the parties.

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9. REG. SUBSTANTIAL QUESTIONS OF LAW NO.1 :

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Substantial questions of law Nos.1 and 2 are

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interlinked. Hence, they are taken up together for a common discussion to avoid repetition of facts.

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The plaintiff filed a suit for partition and separate possession against the defendants, contending that one

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Venkatashetty @ Kempushetty had 6 children, and the plaintiff is the daughter of V.Shivaram. She deposed that the suit schedule properties are the ancestral properties of the plaintiff and defendant No.1. No partition is effected between the plaintiff and defendant No.1. The plaintiff demanded for partition and separate possession, but defendant No.1 refused to effect partition. The plaintiff, to substantiate her case, produced the documents at Exs.P1 to P8. Though defendant No.1 appeared through counsel, they did not choose to file a written statement. The trial Court issued summons to defendant Nos.2 and 3. Though, summons were duly served on defendant Nos.2 and 3, they did not choose to appear before the trial Court. Hence, they were placed exparte. The trial Court, after recording the evidence of the plaintiff, has partly decreed the suit regarding item Nos.1 to 3 and 6 and dismissed the suit insofar as item Nos.3 and 4. The plaintiff, aggrieved by the dismissal of the suit regarding

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items Nos.3 and 4, preferred an appeal in R.A.No.7/2012. The first Appellate Court also issued notice to the defendants No.2 and 3. Before the first Appellate Court, defendant No.1 appeared through the counsel. However, defendant Nos.2 and 3, despite service of notice, did not appear before the first Appellate Court, and they were placed exparte.

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Though the suit involves the right of immovable property, if one opportunity is provided to defendant Nos.2 and 3, no hardship will be caused to the plaintiff as the plaintiff can be compensated in terms of money. The judgments and decrees passed by the Courts below are in violation of the principle of natural justice. Hence, without expressing any opinion on the merits of the case, the impugned judgments are liable to be set aside. In view of the above discussion, I answer substantial questions of law 1 and 2 in the affirmative.

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Accordingly, I proceed to pass the following:

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ORDER

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i. The Regular Second Appeal is allowed with the compensatory cost.

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ii. The impugned judgments dated 05.12.2013 passed in R.A.No.7/20112 by the learned Principal Senior Civil Judge and CJM, Mandya and O.S.No.20/2010 dated 23.01.2012 passed by the learned Additional Civil Judge (Jr.Dn.), Mandya, are hereby set aside.

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iii. The suit in O.S.No.20/2010 is restored to its original file.

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iv. Defendant Nos.2 and 3 shall pay a compensatory cost of Rs.1 lakh to the plaintiff on the date of appearance before the trial Court.

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v. Liberty is reserved to defendant Nos.2 and 3, to file a written statement within one month from the date of appearance.

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