IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH R.F.A.No.1949/2013 (PAR) BETWEEN:
R. SOMASHEKAR AGED ABOUT 80 YEARS S/O. LATE RAMAIAH R/AT No.87, 8TH CROSS 1ST N BLOCK, RAJAJI NAGAR BENGALURU-560 010. … APPELLANT (BY SRI. VISWANATH SETTY V., ADVOCATE) AND:
1. SMT. SAROJAMMA, W/O. LATE GOPALA KRISHNA R/AT C/O. MURTHURAYAPPA @ RAMAIAH VIDYA SAGAR (SARAI PALYA) ARABIC COLLEGE POST BENGALURU-560 045.
2. SRI. N. DAMODHARAN S/O. SRI. NATESHAN, PRESIDENT MINISTRY OF COMMUNICATION EMPLOYEES CO-OP. HOUSING SOCIETY No.33, SERPENTINE ROAD KUMARA PARK WEST BENGALURU-560 020. ... RESPONDENTS (BY SRI. K.P. THRIMURTHY, ADVOCATE FOR R2 SRI. MITHUN G.A., ADVOCATE FOR R1 AND PROPOSED R3) THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41 RULE 1 READ WITH SECTION 96 OF THE CPC AGAINST THE JUDGMENT AND DECREE DATED 13.9.2013 PASSED IN O.S.NO.2715/2009 ON THE FILE OF PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS REGULAR FIRST APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed challenging the judgment and decree of dismissal of the suit in O.S.No.2715/2009 dated 13.9.2013 on the file of the XXXVIII Additional City Civil and Sessions Judge, Bengaluru.
2. The parties are referred to as per their original rankings before the Court below to avoid confusion and for the convenience of the Court.
3. The brief facts of the case:
The plaintiff has filed the suit before the Court below seeking the relief of partition and permanent injunction against defendant Nos.1 and 2 in respect of suit schedule properties contending that the suit schedule property originally belongs to one Dasappa of Thanisandra Village and he had a daughter by name Smt.Nagamma. The said Nagamma had a son by name R.Somashekar, who is the appellant and a daughter Smt.Sarojamma, who is respondent No.1 herein. It is further contended that they have constituted a Hindu Undivided Joint Family. The defendant No.2/respondent No.2 is a stranger to the family. The joint family was possessing number of properties, which are described as schedule item Nos.1 to 5 to the plaint. The suit schedule properties are the ancestral properties of the plaintiff and defendant No.1. Their grand father Dasappa was in un-interrupted peaceful, physical, and lawful possession and in enjoyment of the suit schedule properties without any hindrance from any person. The said Dasappa acquired item No.1 of the suit schedule properties from its previous vendor Sri.Krishnappa vide sale deed dated 17.09.1930. The said Dasappa during his lifetime had gifted an extent of 2 acres 35 guntas out of 2 acres 39 guntas in item No.1 and entire item Nos.2 to 5 of the suit schedule properties in favour of his only daughter Smt.Nagamma through a registered gift deed dated 10.05.1941.
4. In pursuance of the gift deed, the said Smt.Nagamma approached the revenue authorities and got transferred the revenue records pertaining to item Nos.1 to 5 to her name and accordingly, Smt.Nagamma became the absolute owner and was in continuous possession and enjoyment of the suit schedule properties. The said Dasappa died long back and even his daughter also died long back. After the death of the mother, both the plaintiff and defendant No.1 have succeeded to the estate of Smt.Nagamma and they have been in continuous peaceful possession and enjoyment of the suit schedule properties. Since some dispute arose among the members of the joint family, the plaintiff did not want to continue in the Joint family and hence, the plaintiff was adviced by the defendant No.1 to effect the partition equally, but she did not show any interest for partition and started acting against the interest of the plaintiff.
5. The 2nd defendant, a stranger, without having any right, title or possession illegally started interfering with the plaintiff’s joint and peaceful possession and enjoyment over the properties. Hence, he has also been made as a party to the proceedings. Both of them appeared through their counsel and filed their written statement denying the plaint averments and took defence that the sale deed was executed in favour of Muthurayappa on 30.09.1959 in respect of item Nos.2 to 5.
Hence, the application was filed before the Trial Court under Order I Rule 10(2) read with Section 151 of CPC to implead the applicant as defendant No.3. The proposed respondent herin appeared through the counsel and filed objections and also contended that Smt.Nagamma had executed the Will dated 3.3.1994 in favour of defendant No.1 and the properties do not belong to the plaintiff or defendant No.1. Hence, the Trial Court was pleased to dismiss the application filed by the plaintiff without considering the case of the plaintiff in a proper and perspective manner. Having no other alternative a writ petition No.37740/2013 was filed. In the meantime, the suit was also dismissed without recording the evidence and consequently, the writ petition also came to be dismissed. Hence, the present appeal is filed.
6. It is contended in the appeal that the maternal grand father of the appellant executed the gift deed in favour of Smt.Nagamma and only the life interest was created. She was conferred with the right to enjoy the suit schedule properties during her lifetime and after her demise, her children are entitled to the suit schedule properties. The Court below, without recording the evidence with regard to the claim of the plaintiff and also the defendant, dismissed the suit. Taking note of the fact that there was sale deed and also there was a Will, the Court below ought to have examined the contents of the gift deed and also the Will. Hence, the judgment of dismissal of the suit requires to be set aside.
7. Learned counsel appearing for the appellant in his arguments vehemently contended that the Court below has committed an error in dismissing the suit denying the contentions raised in the written statement that item Nos.2 to 5 of the schedule properties was sold in favour of one Muthurayappa and the item No.1 of the suit schedule properties was bequeathed in favour of one Sri.Ramaiah. It is further observed that the material on record indicate that Smt.Nagamma was the absolute owner of the property and she disposed of the said property under the sale deed dated 30.09.1959 and the Will was made in the year 1994. As such, it becomes clear that Smt.Nagamma has not left behind the suit schedule properties. In the said circumstances, the claim of the plaintiff for share in the schedule properties as a Legal heir of Smt.Nagamma is misconceived.
8. Learned counsel further contended that the very approach of the Trial Court is erroneous and without recording the evidence, dismissed the suit based on the defence taken in the written statement. Hence, it requires interference of this Court. Learned counsel appearing for respondent Nos.1 and 2 did not choose to appear and make the statement.
9. Having considered the grounds urged in the appeal memo and also on perusal of the records, the points that arise for consideration of this Court are as follows:-
1. Whether the Court below has committed an error in dismissing the suit taking note of the contentions raised in the written statement without recording the evidence and it requires interference of this Court?
2. What order?
10. Points No.1 and 2:- Having considered the grounds urged in the appeal memo and also the impugned judgment and decree, the Court below, when the case was set down for hearing regarding the maintainability of the suit, passed an order stating that defendants took defence in the written statement that item Nos.2 to 5 has already been sold in favour of one Muthurayappa and remaining item No.1 was bequeathed in favour of one Ramaiah. It is further observed that the material on record indicates that Smt.Nagamma was the absolute owner of the schedule property and she has disposed of the said properties under the sale deed as well as the Will and nothing remains to consider the same. The very approach of the Trial Court in dismissing the suit without recording the evidence is erroneous. Hence, it requires interference of this Court by setting aside the judgment and decree of dismissal of the suit.
11. The parties have to substantiate the very case by examining the witnesses and also by producing the documents. The very contention of the appellant’s counsel that the gift deed executed in favour of Smt.Nagamma was not the absolute gift deed and only the life interest was created. All these aspects have to be considered by the Trial Court i.e., whether she has got the absolute right to execute the sale deed and also to bequeath the property in favour of one Ramaiah. Learned counsel also filed an application to implead the LR’s of the said purchaser and also the beneficiary under the Will as respondents.
12. This Court is of the opinion that the matter requires to be remanded back to the Court below to consider the matter afresh. At this juncture, learned counsel brought to my notice that the application filed before the Court below for impleading was rejected and as against the said order, writ petition was filed before this Court. Consequent upon the dismissal of the suit by the Trial Court, the said writ petition also came to be dismissed.
13. In view of remanding of the suit, the Court below is directed to permit the appellant to implead the proposed respondent and decide the issue involved between the parties since there was a contention in the written statement that there was already a Will and also property is bequeathed in favour of the proposed respondent.
14. In view of the discussion made above, I pass the following:-
ORDER (i) The appeal is dismissed.
(ii) The impugned judgment and decree of the dismissal of the suit in O.S.No.2715/2009 dated 13.9.2013 on the file of the XXXVIII Additional City Civil and Sessions Judge, Bengaluru is hereby set aside and the same is remanded back to the Trial Court to consider the matter afresh and record the evidence and dispose of the suit on merits.
(iii) The Trial Court is further directed to permit the appellant to implead the proposed respondent.
(iv) Since this suit is of the year 2009 and the same was dismissed without recording the evidence and considering the material on merits, it is appropriate to direct the Court below to dispose of the suit within a period of one year from today.
(v) Parties are directed to appear before the Court below on 02.01.2020 without expecting any notice from the Trial Court.
(vi) The respective counsels are also directed to assist the Court below in disposing of the suit within the stipulated time.
In view of disposal of the appeal, I.A.No.1/2017 for impleading the applicant as respondent No.3 and I.A.No.1/2019 for vacating status quo order dated 02.02.2017 do not survive for consideration.
Sd/- JUDGE PYR