IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY R.F.A.No.708 OF 2016 BETWEEN:
Srinivasa M, Since dead by his LRs.
1.(a) Vijayamma W/o. Srinivas, Age: 56 years, Occ: House Wife.
1.(b) Venkatesh S/o. Srinivas Age:30 years, Occ: Pvt. Employment.
1.(c) Girish S/o. Srinivas Age: 28 years.
1.(d) Smt. Usha D/o. Srinivas, Age: 28 years.
All R/o No.7/2, K.B.Temple Road, 7th Cross, Rajajinagar, Bangalore-560010. .. Appellants (By Smt. Manjuladevi R. Kamadolli, Advocates) AND:
1. Sri. Dasappa M S/o. Late Muthurayappa, Age:64 years, R/at No.533, 6th Main, 3rd Cross, Bhuvaneshwarinagar, Hesaraghatta Road, T. Dasarahalli, Bangalore-560 059.
2. Sri. Venkatesh M Since dead by his LRs.
2(a) Smt. Rajamma W/o. Late Venkatesh M, Age 57 years.
2(b) Devika D/o. Late Venkatesh M, Age:35 years.
2(c) Hemesh S/o. Late Venkatesh M, Age:32 years.
3. Shivakumar M S/o. Late Muthurayappa, Age:60 Years.
4. Venkateshamurthy M S/o. Late Muthurayappa, Age:56 years, All are R/at No.7/2, K.B.Temple Road, 7th Cross, Rajajinagar, Bangalore-560 010.
5. Smt. Dhanalakshmi W/o. Veerappa D/o. Late Muthurayappa, Age:46 years, R/at No.3692, old 12th Cross, New 6th Cross, 1st Main, Gayathrinagar, Bangalore-560 021. …Respondents (By Sri. Manukumar B.T. Advocate for Sri M.N.Madhusudhan, Advocate for C/R-1; Sri. V.Rajaiah, Advocate for R-2 (A-C);
R-3, R-4, and R-5 are served and unrepresented) This Regular First Appeal is filed under Section 96 of CPC., against the judgment and decree dated:29.02.2016 passed in O.S.No.4500/2011 on the file of the XV Additional City Civil and Sessions Judge, Bengaluru, decreeing the suit for partition, separate possession and mesne profit.
This Regular First Appeal coming on for Hearing, this day, the Court made the following:
JUDGMENT The present appellant, since dead, represented by his legal representatives, was the defendant No.2, in the Court of learned XV Addl.City Civil & Sessions Judge, Bengaluru City (CCH-3), (hereinafter for brevity referred to as `trial Court’), in O.S.No.4500/2011, against whom and four others, the present respondent No.1 had instituted the said suit for the relief of declaration and partition.
2. The summary of the case of the plaintiff in the trial Court was that the plaintiff and defendant Nos.1 to 4 are sons and defendant No.5 is the daughter of one late Sri Muthurayappa and Smt.Lingamma. Said Sri Muthurayappa had purchased the suit schedule property from one Smt.Gangubai under a registered Sale Deed dated 16.2.1970. The revenue records were made in the name of said Sri Muthurayappa. The plaintiff since was working as a Writer under the contractor, has also contributed his earnings to enable his father to purchase the suit schedule property. Muthurayappa died in the year 1973. Smt.Lingamma, the mother of the parties who had instituted a suit in O.S.No.5712/1996, in City Civil Court, Bengaluru, for cancellation of the alleged Sale Deed dated 28.5.1994, with respect to the very same property, succeeded in the said suit, which was further confirmed by this Court in Regular First Appeal. Thus, said Smt.Lingamma became the absolute owner and in actual possession of the suit schedule property. No partition with respect to the suit schedule property was taken place. After the death of Smt.Lingamma, the plaintiff requested for partition in the suit schedule property and for his separate possession to an extent of 1/6th share in the suit property. However, the defendants refused to accede to his demand. This made him to institute the suit.
3. It is only the defendant No.2 alone who filed his written statement in the trial Court. In the written statement, the defendant No.2 though admitted the relationship between the parties, but, denied that plaintiff had contributed any amount for the acquisition of the property. He contended that the suit schedule property was purchased by their mother Smt.Lingamma, who has executed a registered Will dated 16.5.1985, however, the said Will was withdrawn and she executed another Will dated 15.11.2000. After the death of their mother, it is he who is in possession of the property and enjoying the same, as such, the question of partition does not arise.
4. Based on the pleadings of the parties, the trial Court framed the following issues :
(i) Whether the plaintiff proves that the suit schedule property is the joint family property of the plaintiff and defendants?
(ii) Whether the plaintiff proves that the mother of the parties died intestate, leaving behind the suit schedule property?
(iii) Whether the defendant No.2 proves that the mother of the parties executed a Will dated 15/11/2000 in favour of defendant No.2?
(iv) Whether the plaintiff is entitle to 1/6th share in the suit schedule property?
(v) To what order or decree?
In his support, the plaintiff got himself examined as PW-1 and got marked documents from Exs.P-1 to P-13. No evidence was led from defendants side and no documents as exhibits were marked from the defendants side.
5. A perusal of the lower Court record would go to show that neither side have addressed their arguments on the suit. As such, the trial Court proceeded to pass the judgment on 29.2.2016, wherein, it answered issue Nos.1, 2 and 4 in the affirmative and issue No.3 in the negative and decreed the suit of the plaintiff, holding that plaintiff was entitled for partition and separate possession of 1/6th share in the property by metes and bounds. It ordered to draw preliminary decree. It is against the judgment and preliminary decree, the 2nd defendant has preferred the present appeal.
6. Lower Court records were called for and the same are placed before this Court.
7. Heard the arguments of the learned counsel from both side and perused the materials placed before this Court, including the memorandum of appeal and the impugned judgment.
8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
9. In view of the above, the point that arise for my consideration is :
(i) Whether the judgment and decree under appeal deserves its setting aside and remanding the matter to the Court below?
Learned counsel for the appellant in her brief argument submitted that the lone contesting defendant in the Court below was the present appellant who was not given an opportunity to lead his evidence. He has not been given an opportunity to put forth his case, as such, the appellant himself being a legatee under the Will executed by the deceased Smt.Lingamma was denied of putting forth his case, which has resulted in the impugned judgment. With this the learned counsel prayed for remanding the matter, with a direction to give an opportunity to defendant No.2/appellants herein to lead his evidence.
10. Learned counsel for the respondents opposing the contention of the learned counsel for the appellants submitted that the trial Court has given a reasonable opportunity to the present appellants, which they have not made use of. Even the merits of the case would go to show that suit property is a joint family property, as such, the plaintiff was entitled for his legitimate share of 1/6th share.
11. The trial Court in its finding, no doubt, has held the suit schedule property as the joint family property of the plaintiff and the defendants and that the plaintiff has proved that mother of the parties had died intestate, with the said observation, it has decreed the suit. However, a perusal of the proceedings/order sheet maintained by the trial Court would go to show that after the cross-examination of PW-1, hearing the submission of learned counsel for the plaintiff, it was only on 17.2.2016, the trial Court has taken as the plaintiff’s side evidence was closed. However, on the very next date of hearing, which was on 20.2.2016, it observed that the plaintiff was examined long back, as such, all of a sudden it has directly proceeded to list the suit for the defendants’ evidence, as a final opportunity, within a span of five days thereafter. On the said day, observing that the defendants and their counsel were absent, it posted the matter for arguments on 27.2.2016 and observing that the parties have not addressed their arguments, proceeded to pass the impugned judgment and decree on 29.2.2016. This clearly go to show that the trial Court has acted in a hasty manner and that within nine days of the completion of the evidence from the plaintiff’s side, it showing that the defendants were given an opportunity and without even hearing the arguments to be addressed from both side, has proceeded to pass the impugned judgment and decree.
12. Therefore, I am of the view that, without going into the merits of the case, suffice it to say that, defendant No.2, who is the appellant herein and who is the only contesting defendant in the Court below, deserves an opportunity to lead his evidence. However, at the same time, the inconvenience caused to the plaintiff/decree holder, who has pursued his suit for not less than eight years only to get an order of remand by this Court, also cannot be ignored. As such, remanding of the matter would be on the cost payable by the appellants to the plaintiff/respondent No.1 herein.
13. Accordingly, I proceed to pass the following order :
ORDER The Appeal is allowed in part, with cost of `15,000/- (Rupees Fifteen thousand only) payable by the appellants to the plaintiff/respondent No.1 herein within two weeks from today in the form of deposit to be made in the trial Court under an intimation of the same to the respondent No.1/plaintiff in writing.
The judgment and decree dated 29.2.2016, passed by the learned XV Addl.City Civil & Sessions Judge, Bengaluru City (CCH-3), in O.S.No.4500/2011, is set aside. The matter is remanded to the trial Court with a direction to give an opportunity to defendant No.2 before it (appellants herein) to lead their evidence. Needless to say that plaintiff will consequently have an opportunity to cross-examine the defendants’ witness/witnesses.
Considering the age of the suit and the nature of the litigation, completion of the entire process by the trial Court and pronouncing the judgment within four months from the date of receipt of copy of this judgment would be highly appreciated.
The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court forthwith.
In view of remanding of the matter and in order to avoid any further delay, both parties who are appearing in this matter through their counsels are directed to appear in the trial Court on 06.01.2020 without anticipating any fresh summons or notice by the trial Court.
Sd/- JUDGE bk/