Smt. Jayamma Vs Sri Narayanagowda

1(b) SRI. VINODKUMAR R. S/O LATE RAMAIAH, AGED ABOUT 37 YEARS, R/AT THIRUMALASHETTAHALLI, BEHIND BHAVANI VIDYAMANDIRA, SAMETHANAHALLI POST, HOSKOTE TALUK, BENGALURU RURAL DISTRICT.

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SMT. PADMAMMA W/O LATE BEERAPPA, D/O LATE VENKATARAMEGOWDA, AGED ABOUT 49 YEARS, R/AT THIRUMALASHETTY HALLI, ANUGONDANAHALLI HOBLI, HOSKTOE TALUK, BENGALURU DISTRICT-560 067.

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SMT. NARAYANAMMA W/O LATE VENKATARAMEGOWDA, AGED ABOUT 68 YEARS,

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SMT. BHAGYALAKSHMI @ BHAGYA SINCE DECEASED BY HER LRS

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(a) KESHAVA S/O LATE BHAGYALAKSHMI, AGED ABOUT 16 YEARS,

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(b) HARISH S/O LATE BHAGYALAKSHMI, AGED ABOUT 14 YEARS,

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APPELLANTS NO.4(a) AND (b) ARE MINORS REP. BY THEIR GRANDFATHER AND NATURAL GUARDIAN SMT. NARAYANAMMA.

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SMT. SHASHIKALA W/O RAJESH, D/O LATE VENKATARAMEGOWDA, AGED ABOUT 27 YEARS,

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THE APPELLANT NO.3 TO 5 ARE R/AT CHANNASANDRA VILLAGE, BIDARAHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU DISTRICT.

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…APPELLANTS

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(BY SRI. K. SHIVASHANKAR, ADVOCATE)

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AND:

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SRI. NARAYANAGOWDA S/O LATE DASEGOWDA, AGED ABOUT 52 YEARS,

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SRI. RAMACHANDRA S/O LATE DASEGOWDA AGED ABOUT 49 YEARS,

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SRI. BACHEGOWDA S/O LATE DASEGOWDA, AGED ABOUT 45 YEARS,

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SMT. RENUKA D/O LATE DASEGOWDA, W/O LATE SRINIVAS, AGED ABOUT 36 YEARS,

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SRI. THIMMARAYE GOWDA S/O LATE DASEGOWDA, AGED ABOUT 38 YEARS,

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SMT. SAVITHA D/O LATE DASEGOWDA, W/O MANJUNATH, AGED ABOUT 31 YEARS,

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R1 TO R6 R/AT CHANNASANDRA VILLAGE, BIDARAHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU DITRICT.

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SRI. SAMPANGIRAME GOWDA S/O LATE THIMMARAYA GOWDA, SINCE DECEASED BY LR’S

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7(a) AMARANARAYANA S/O LATE SAMPANGI RAMEGOWDA T., AGED ABOUT 50 YEARS,

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R/AT RING ROAD, CHANNASANDRA, NEAR ISHAMISTRY APARTMENT, GATE NO.2 & 3 BETWEEN SRI. CHANDRA NIVAS, BENGALURU.

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7(b) RAVI C.S. S/O LATE SAMPANGI RAMEGOWDA T., R/AT NO.20, HARIPRIYA NILAYA, PRUTHVI LAYOUT, CHANNASANDRA, NEAR G.B. RAMAYYA LAYOUT, BENGALURU-560 067.

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7(c) MURALIDARA C.S. S/O LATE SAMPANGI RAMEGOWDA T., AGED ABOUT 45 YEARS, NEAR ISHAMISTRY APARTMENT, GATE NO.2 & 3 BETWEEN SRI. CHANDRA NIVAS, BENGALURU.

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THE SPECIAL ADDL. LAND ACQUISITION OFFICER BENGALURU DEVELOPMENT AUTHORITY, T. CHOWDAIAH ROAD, BENGALURU-560 020.

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…RESPONDENTS

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(BY SRI. S. MUNIRAJU, ADVOCATE FOR R1 TO R5; SRI. SIDDAPPA V.D., ADVOCATE FOR R7(a); R7(b), R7(c) AND R6 ARE SERVED; AGA FOR R8 IS ABSENT)

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THIS RFA IS FILED UNDER ORDER 41 RULE 1 AND SEC.96 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 21.04.2018 PASSED IN O.S.NO.169/2014 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, BANGALORE (RURAL) DISTRICT, BANGALORE, DISMISSING THE SUIT FOR DECLARATION.

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

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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This case was listed today for further hearing. On the previous occasion, the matter was heard in part and there was no representation on behalf of the respondents. Today also, there is no representation on behalf of the respondents.

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The Court has considered the contentions raised at

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the bar and perused the records and proceeded to pass the following order.

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The plaintiffs/appellants have produced six documents along with the application filed under Order XLI Rule 27 of the Code of Civil Procedure. Though the documents sought to be produced are stated to be the certified copies on perusal of the records, it is noticed that the documents are not the certified copies but appear to be the xerox copies of the certified copies.

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Learned counsel for the appellants also submits that

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as per the memorandum of partition dated 15.05.1980, if Survey No.81/1 (not 81/2 as mentioned in the partition deed)

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is taken as the property allotted to the share of the plaintiffs, the total extent allotted to the share of Sri.Venkataramegowda (father of the plaintiffs) would be 76 guntas and the extent of the property allotted to the share of the plaintiffs father's brother, Sri.Dasegowda would be 114 guntas and the share of another brother, Sri.Sampangiramegowda would be 109 guntas.

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It is urged that Sy.No.81/2 which is wrongly mentioned in the Memorandum of Partition is not the family property and same is not allotted to the share of the plaintiff's father and what is allotted is Survey No.81/1 and same is wrongly mentioned as Sy.No.81/2 in the Memorandum of Partition dated 15.05.1980.

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In the background it is urged that the Survey No.81/1 is indeed the property allotted to the share of the plaintiffs' father and not Survey No.81/2 as mentioned in the memorandum of partition.

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It is also submitted that Survey No.81/2 (Ex.P.20) stands in the name of Sri.Thimmaiah S/o Sri.Ramaiah, who is not the family member.

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It is also urged that the defendants have effected a partition under a registered partition deed dated 03.03.2014 and there they make reference to partition dated 15.05.1980 and there is no reference to Survey No.81/1 in the said deed while effecting partition of the properties allotted to their respective shares in the family partition of 1980.

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In addition, it is also urged that the defendants have entered into a Joint Development Agreement in respect of their properties allotted to their share under the partition of the year 1980. In the said agreement, there is no reference to Survey No.81/1. By referring to these documents, it is urged that the Survey No.81/1 was not the property allotted to the share of the defendants. It is further submitted that though Survey No.81/2 is referred to in the memorandum of partition dated 15.05.1980, said Sy.No.81/2 could not have been the subject matter of the partition as i.e., not the joint family property.

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It is noticed that the defendants remained ex-parte before the trial Court and did not file the written statement

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before the trial Court. Before this Court, there is no representation on their behalf.

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The Court has considered the contentions and finds some merit in the contentions raised by the appellants. It is noticed that the reference is made to memorandum of partition dated 15.05.1980 in the documents executed among the defendants namely, in the registered partition deed dated 03.03.2014. It is also noticed that the suit is primarily dismissed on the ground that the memorandum of partition dated 15.05.1980 was not produced.

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Under these circumstances, the Court is of the view that the appeal has to be allowed and application of production of documents should also be allowed and the matter has to be remanded to the trial Court for fresh consideration.

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The plaintiffs/appellants are at liberty to summon the memorandum of partition deed dated 15.05.1980 from wherever it is, and for any reason if it is not found, the plaintiffs/appellants are at liberty to adduce secondary evidence of the memorandum of partition dated 15.05.1980 subject to

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fulfilling the requirements relating to production of secondary evidence.

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The defendants are also permitted to file written statement and lead evidence.

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The trial Court shall look into the additional documents subject to its admissibility proof and relevance.

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It is made clear that nothing is expressed on the merits of the matter and all contentions kept open. Hence, the following:

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ORDER

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(i) The appeal is allowed in part .

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(ii) The impugned judgment and decree dated 21.04.2018 passed in O.S.No.169/2014 on the file of the Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru is set aside.

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(iii) The matter is remitted to the trial Court for fresh consideration.

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(iv) The plaintiffs/appellants are at liberty to produce the certified copies of the sale deeds and the partition deeds. Joint Development Agreement referred to in the application filed under Order XLI Rule 27 of the Code of Civil Procedure.

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(v) The plaintiffs/appellants are also at liberty to take steps to secure the original partition deed dated 15.05.1980 and for any reason, if it is found that it is not with either with the defendants or the revenue authorities, the plaintiffs are at liberty to adduce secondary evidence of the same, subject to the fulfilment of requirements for production of secondary evidence.

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