IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.715/2016 (PAR) C/W REGULAR SECOND APPEAL NO.781/2016 IN R.S.A.NO.715/2016 BETWEEN:
SRI HONNANNA S/O LATE P.LAKSHMINARAYANA RAO AGED 63 YEARS, NO.884 9TH CROSS, 6TH MAIN, III STAGE BEML LAYOUT, RAJARAJESHWARI NAGAR BANGALORE – 560 098 … APPELLANT (BY SRI K.N.NITISH, ADV. FOR SRI K.V.NARASIMHAN, ADV.) AND:
1. SRI L.ANANTHARAM S/O LATE P.LAKSHMINARAYANA RAO AGED 66 YEARS ARASINAKUNTE NELAMANGALA TALUK BANGALORE RURAL DISTRICT – 562 123 2. SRI L.SATHYANARAYANA RAO S/O LATE P.LAKSHMINARAYANA RAO AGED 56 YEARS ARASINAKUNTE NELAMANGALA TALUK BANGALORE RURAL DISTRICT – 562 123 3. L.SANJEEVARAYA S/O LATE P.LAKSHMINARAYANA RAO AGED 53 YEARS ARASINAKUNTE NELAMANGALA TALUK BANGALORE RURAL DISTRICT – 562 123 4. SMT.KAMALAMMA W/O LATE SHANTHARAM ARASINAKUNTE NELAMANGALA TALUK BANGALORE RURAL DISTRICT – 562 123 5. SRI SHIVAKUMAR (DELETED VIDE ORDER DATED:23.04.2019) 6. SRI NINGANAGOWDA V.PATIL S/O VEERNAGOWDA PATIL AGED 53 YEARS NO.1045, SRI RAGHAVENDRA NILAYA S.H.LAYOUT, KAVALABYRASANDRA R.T.NAGAR, BANGALORE – 560 032 7. SMT.JAYALAKSHMI W/O M.V.RAMACHANDRA MURTHY R/AT THIMMASETTAPPA LAYOUT NO.49, WARD NO.20 (NEAR SUNRISE SCHOOL) SUBASHNAGARA NELAMANAGALA – 562 123 8. SMT.L.NAGARATHNA AGED 56 YEARS W/O SRIKANTAIAH 96/A, 3RD CROSS, 2ND MAIN ROAD BAPUJINAGAR, MYSORE ROAD BANGALORE – 560 026 …RESPONDENTS (BY SRI R.VIJAYAKUMAR, ADV. FOR R1 AND R6; SRI SRINIVAS V., ADV. FOR R2 AND R3;
SRI H.K.PAVAN, ADV. FOR R4, R7 AND R8;
R5 IS DELETED VIDE ORDER DATED 23.4.2019) IN R.S.A.NO.781/2016 BETWEEN:
1. SRI L.SATHYANARAYANA RAO S/O LATE P.LAKSHMINARAYANA RAO AGED 56 YEARS ARASINAKUNTE NELAMANGALA TALUK BANGALORE RURAL DISTRICT – 562 123 2. L.SANJEEVARAYA S/O LATE P.LAKSHMINARAYANA RAO AGED 53 YEARS ARASINAKUNTE NELAMANGALA TALUK, BANGALORE RURAL DISTRICT – 562 123 ... APPELLANTS (BY SRI SRINIVAS V., ADV.) AND:
1. SRI HONNANNA S/O LATE P.LAKSHMINARAYANA RAO AGED 63 YEARS, NO.884 9TH CROSS, 6TH MAIN, III STAGE BEML LAYOUT, RAJARAJESHWARI NAGAR BANGALORE – 560 098 2. SRI L.ANANTHARAM S/O LATE P.LAKSHMINARAYANA RAO AGED 66 YEARS ARASINAKUNTE NELAMANGALA TALUK BANGALORE RURAL DISTRICT – 562 123 3. SMT.KAMALAMMA W/O LATE SHANTHARAM ARASINAKUNTE NELAMANGALA TALUK BANGALORE RURAL DISTRICT – 562 123 4. SRI SHIVAKUMAR (DELETED VIDE ORDER DATED:23.04.2019) 5. SRI NINGANAGOWDA V.PATIL S/O VEERNAGOWDA PATIL AGED 54 YEARS NO.1045, SRI RAGHAVENDRA NILAYA S.H.LAYOUT, KAVALABYRASANDRA R.T.NAGAR, BANGALORE – 560 032 6. SMT.JAYALAKSHMI W/O M.V.RAMACHANDRA MURTHY R/AT THIMMASETTAPPA LAYOUT NO.49, WARD NO.20 (NEAR SUNRISE SCHOOL) SUBASHNAGARA, NELAMANAGALA – 562 123 7. SMT.L.NAGARATHNA AGED 56 YEARS W/O SRIKANTAIAH 96/A, 3RD CROSS, 2ND MAIN ROAD BAPUJINAGAR, MYSORE ROAD BANGALORE – 560 026 ... RESPONDENTS (BY SRI K.N.NITISH, ADV. FOR SRI K.V.NARASIMHAN, ADV. FOR R1;
SRI R.VIJAYAKUMAR, ADV. FOR R2 AND R5; SRI H.K.PAVAN, ADV. FOR R3, R6 AND R7;
R4 IS DELETED VIDED ORDER DATED 23.4.2019) THESE REGULAR SECOND APPEALS ARE FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:03.03.2016 PASSED IN R.A.NO. 476/2012 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, PARTLY ALLOWING THE APPEAL AND PARTLY SETTING ASIDE THE JUDGMENT AND DECREE DATED 01.10.2012 PASSED IN O.S.NO.170/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., AT NELAMANGALA.
THESE APPEALS COMING ON FOR REPORTING SETTLEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T These two appeals arise out of the judgment and decree dated 3.3.2016 passed in R.A.No.476/2012 by the Principal District Judge, Bengaluru Rural District, Bengaluru.
2. The appellant in R.S.A.No.715/2016 is respondent No.1 in R.S.A.No.781/2016. The appellants in R.S.A.No.781/2016 are respondent Nos.2 and 3 in R.S.A.No.715/2016. Learned Counsel, who represents appellants in R.S.A.No.781/2016, files power for respondent Nos.2 and 3 in R.S.A.No.715/2016.
3. I.A.No.1/2019 in both the appeals is filed by the sisters of plaintiff and defendant Nos.1 to 3 on the ground that they were left out in the suit. Though they were not made parties, courts below have granted shares to them.
4. I.A.No.2/2019 in R.S.A.No.715/2016 is filed seeking amendment of the plaint to correct the name of defendant No.3 in the cause title of the plaint and to include Sy.No.191/4 measuring 31 guntas situated in Arashinakunte village as plaint schedule item No.5 property. Though that property was not included in the suit, the first appellate court has granted share in the said property holding that, that is also joint family property.
5. I.A.No.3/2016 in R.S.A.No.715/2016 and I.A.No.2/2019 in R.S.A.No.781/2016 are filed by the appellants to implead one Ninganagowda V.Patil, the subsequent purchaser from defendant No.5, on the ground that he has purchased plaint schedule item No.3 property from the fifth defendant Shivakumar under the registered sale deed dated 3.11.2006.
6. Appellant has filed memo in R.S.A.No.715/2016 to delete the name of respondent No.5 Shivakumar from the array of the parties on the ground that he has sold the plaint schedule item No.3 property to Ninganagowda V.Patil and he has no subsisting interest in the said property.
7. In fact, defendant No.5 admitted such alienation before the trial court and the first appellate court. Therefore, he has no subsisting interest in the plaint schedule item No.3 property. Therefore, permission is accorded to delete him from the array of the parties. Memo is disposed of accordingly.
8. So far as the other impleading applications and the amendment of the plaint, parties have no objection having regard to the facts stated supra. Amendment is only clarificatory and does not change the nature of the proceedings. The proposed parties are the necessary parties. Therefore, I.A.Nos.1/2019 and 2/2019 in both the appeals and I.A.No.3/2016 in R.S.A.No.715/2016 are allowed. The appellants shall amend the plaint and the appeal memo accordingly and furnish the amended appeal memo.
9. The appeal memo is amended.
10. Today, the appellants and respondent Nos.1 to 4 and 6 to 8 are present before the Court and they are duly identified by their respective Counsel. They filed compromise petition. Parties admit the execution of the compromise petition. The compromise is found lawful. Therefore, the same is recorded.
Appeals are partly allowed. The judgment and decrees of the courts below is modified in terms of the compromise petition. Draw up decree accordingly.
Sd/- JUDGE KNM/-