IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH REGULAR FIRST APPEAL NO.409/2013 BETWEEN:
1. SMT. PRASANNA W/O P.M.KRISHNAPPA AGED ABOUT 69 YEARS R/AT NO.153/1, 16TH CROSS CUBBONPET MAIN ROAD BANGALORE-560002 2. SMT. MUNIYAMMA W/O LATE P.M.RAMAIAH AGED ABOUT 72 YEARS 3. SMT. P R VANAJAKSHI D/O LATE P M RAMAIAH W/O R.VENKATESH AGED ABOUT 47 YEARS 4. SMT. P R SHAKUNTALA D/O LATE P.M.RAMAIAH W/O M.KRISHNAPPA AGED ABOUT 42 YEARS 5. P R MURALIDHARA S/O LATE P.M.RAMAIAH AGED ABOUT 35 YEARS APPELLANT NOS.2 TO 5 ARE R/AT NO.4 IDGAH ROAD, VARTHUR POST BANGALORE EAST TALUK BANGALORE DISTRICT-560 087 … APPELLANTS (BY SRI ADINARAYAN, ADVOCATE) AND:
1. P.M.KRISHNAPPA S/O LATE MUNIYAPPA AGED ABOUT 70 YEARS R/AT NO.153/1, 16TH CROSS CUBBONPET MAIN ROAD BANGALORE-560002 2. SMT. SAVITHRAMMA W/O LATE MUNESWARAPPA AGED ABOUT 67 YEARS SINCE DECEASED REPRESENTED BY HER L.R. I.E. RESPONDENT NO.3 3. P M SRINIVAS S/O LATE MUNESWARAPPA AGED ABOUT 47 YEARS R/AT GUNJUR VILLAGE VARTHUR HOBLI BANGALORE EAST TALUK BANGALORE DISTRICT-560 087 4. RUDALF MASCARENHAS S/O LOUIS MASCARENHAS AGED ABOUT 64 YEARS 5. SMT. AMITHA GARG W/O RAKESH KUMAR GARG AGED MAJOR APPELLANT NOS.4 & 5 ARE R/AT NO.D-1 AND DEFENDANTS-2 R.P.APARTMENTS, NO.2 LEONARD LANE RICHMOND TOWN BANGALORE-560025 ... RESPONDENTS (R1, R3 & R4 SERVED;
R2 DECEASED, R3 IS LR OF DECEASED R2 VIDE ORDER DATED 26.08.2016;
NOTICE TO R-5 IS DISPENSED WITH VIDE ORDER DATED 25.01.2019) THIS RFA IS FILED UNDER SECTION 96, O-XLI, RULE-1 OF CPC. AGAINST THE JUDGMENT AND DECREE DATED 07.12.2012 PASSED IN O.S.NO.9653/2006 ON THE FILE OF XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS RFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T 1. The matter is listed for admission today. Heard the arguments of appellants’ counsel.
2. This appeal is directed against the judgment dated 07.12.2012 passed by the Court of XVIII Additional City Civil and Sessions Judge, Bengaluru, dismissing the suit in O.S.No.9653/2006.
3. Facts of the case are as under:
It is the case of the appellants/plaintiffs that Muniyappa and defendant No.1 are the husband and wife. They had three sons namely, P.M.Ramaiah, Muneshwarappa and defendant No.2. Muniyappa was the Karta of the family comprising of three sons. P.M.Ramaiah died leaving behind plaintiff Nos.2 to 5 and Muneshwarappa died leaving behind defendant Nos.3 and 4. Muniyappa had acquired the schedule property pursuant to its grant by the Special Deputy Commissioner for Inams Abolition. He was personally cultivating it. After his death, P.M.Ramaiah became Karta of the joint family and he had dominated the joint family. He started acting detrimental to the interest of other members of the joint family. He managed to execute a nominal sale deed in favour of defendant No.5 on 01.09.1995 at the instigation of defendant Nos.1 to 4 for a nominal price of Rs.8,13,750/- when the schedule property was fetching more than Rs.43,00,000/- in 1995. Thereafter, for the reasons best known to them, P.M.Ramaiah and defendant Nos.2 to 4 orally divided and used to stay separately. The contents of the sale deed would show that his close friend Panduranga Reddy had played a vital role in make believing executors. Despite the sale deed, no physical possession was delivered to Panduranga Reddy or defendant No.5. The plaintiffs are in physical possession and enjoyment of the schedule property. Without effecting any partition and showing respective shares, P.M.Ramaiah and defendant No.2 have played a vital role in making the joint family property vanished. The plaintiffs have definite share in the schedule property. Since the defendants have not yielded to their request, they were forced to issue a legal notice demanding partition. But they have refused to effect partition. Hence, the suit was filed seeking the relief for partition and separate possession.
Though defendant Nos.1 and 2 have entered appearance through their counsel, they have not filed any written statement and defendant Nos.3 to 6 have also remained ex parte. The plaintiffs, in support of their case, got examined one witness as PW1 and got marked the documents as Exs.P1 to P19.
4. The court below considered the evidence of PW.1 and the documents such as certified copies of the sale deeds executed in favour of defendant No.5 and defendant No.6, encumbrance certificate, mutation register and RTC extract in respect of the schedule property. The court below had relied upon Ex.P1 which would disclose sale of the schedule property to defendant No.5 by defendant Nos.1 to 4 as well as the husband of plaintiff No.1 and father of plaintiff Nos.2 to 5 to meet their family and legal necessities on 1.9.1995. The court below held that the schedule property was sold by defendant Nos.1 to 4 and husband of plaintiff No.1 for family necessity. No documents were placed before the court below to show that the schedule property was sold at the instance of Panduranga Reddy. The documents which were placed before the court below were only the sale deeds and the relevant entries subsequent to those sale deeds. Defendant No.5 also in turn had the sold the property in favour of defendant No.6. The sale transactions were made in the years 1995 and 1998. The suit was filed in the year 2006. However, the plaintiffs did not challenge those sale deeds within the stipulated time. The court below also took note of the fact that the suit was not filed within time. Except self-serving and uncorroborated testimony of PW1, no document was placed before the court below that the property was not sold for legal necessity. However, the defendants have not contested the matter when the plaintiffs have approached the court below seeking the relief of partition and also share in the property. When the sale was made by the father of plaintiff Nos.2 to 5 and husband of plaintiff No.1, the burden lies on the plaintiffs to make out the case and the same has not been done. Having considered the reasoning assigned by the trial court, I do not find any ground to interfere with the judgment of the court below.
5. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed.
In view of dismissal of the appeal, I.A.No.2/2013 does not survive for consideration and it is also dismissed.
Sd/- JUDGE hkh.