Karnataka High Court
Smt. Parvathamma vs Smt. Jayamma on 27 April, 2018
Equivalent citations: 2018 (4) AKR 690, (2019) 1 ICC 925
Bench: B.S Patil, S Sunil Dutt Yadav
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF APRIL, 2018
PRESENT
THE HON'BLE MR. JUSTICE B.S. PATIL
AND
THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
R.F.A.No.1761/2016 (PAR)
Between:
1. Smt. Parvathamma,
W/o. Late V. Siddaramaiah,
Aged about 50 years.
2. Sri. Shakthikumar,
S/o. Late V. Siddaramaiah,
Aged about 35 years.
3. Smt. Rajeswari,
D/o. Late V. Siddaramaiah,
Aged about 30 years.
4. Kum. Sumithra,
D/o. Late V. Siddaramaiah,
Aged about 26 years.
All are residing at No.91,
14th Cross, 4th Block,
Peenya,
Bengaluru - 560 058. ... Appellants
(By Sri. M.Narayanappa, Advocate)
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And:
1. Smt. Jayamma,
W/o. Late V. Siddaramaiah,
Aged about 68 years.
2. Sri. Shivakumar,
S/o. Late V. Siddaramaiah,
Aged about 37 years.
Both are residing at No.68/7,
Chokkasandra,
Manjanna Building,
T. Dasarahalli,
Bengaluru - 560 057. ... Respondents
(By Sri. H. Mohankumar, Advocate)
This RFA is filed under Section 96 r/w Order 41 of
CPC, against the judgment and decree dated 20.12.2013
passed in O.S.No.2545/2008 on the file of the XVIII
Additional City Civil Judge, Bangalore decreeing the suit for
partition and separate possession.
This RFA having been heard and reserved on
09.04.2018 and coming on for pronouncement of judgment,
this day S.Sunil Dutt Yadav, J., delivered the following:
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JUDGMENT
There is delay of 955 days in filing this appeal. Appellant has filed I.A.No.1/2016 seeking condonation of the said delay. In the facts and circumstances of the case, we have heard the counsel for the appellants on the delay as well as on the main matter.
2. The appellants/defendants have challenged the judgment and decree in O.S.No.2545/2008 dated 20.12.2013 passed by the XVIII Additional City Civil Judge, Bangalore, whereby the suit for partition filed by the plaintiffs was decreed.
3. The parties are referred to by their ranks before the Trial Court for the purpose of convenience. The plaintiffs had filed a suit for partition and separate possession of the schedule property and had also sought for a direction against the defendants to pay 4 mesne profits with respect to plaintiff's share in possession of the defendants.
4. The facts relevant to the dispute on hand is that the plaintiff No.1 asserts that she is the legally wedded wife of late Sri V.Siddaramaiah and as they did not have issues, plaintiff No.2 was adopted.
It is asserted that adoption of plaintiff No.2 had been as per Hindu rites.
The defendant No.1 on the other hand, claimed that she was the second wife of Siddaramaiah, who was the elder sister of plaintiff no.1 and that defendants 2 to 4 are the children of Siddaramaiah from the wedlock of Siddaramaiah and defendant No.1 with the said defendant.
It is stated that late Sri V.Siddaramaiah had purchased the suit schedule property in 1999 and the 5 Khata stood in the name of Siddaramaiah, who was paying taxes to the BBMP. After the death of Siddaramaiah on 1.4.2002, the plaintiff No.1 and defendant No.1 are said to have jointly constructed the building and were in joint possession of the schedule property. It is stated that the defendant No.1 without the knowledge of the plaintiff, got transferred the Khata in her name in respect of the schedule property surreptitiously and started collecting rent with respect to the ground floor and second floor tenements. Though the plaintiffs had requested to allot share in the joint family property, the defendant No.1 evaded and denied to partition the property, as a result of which, the plaintiff had approached the Court for the relief of partition.
After summons was issued by the Trial Court, defendants appeared and defendant No.2 filed a written statement denying the relationship of plaintiff with 6 Siddaramaiah and asserting that the defendant No.1 was the only wife and defendant Nos.2 to 4 are the children of late Siddaramaiah through the wedlock with the defendant No.1.
It was admitted that the suit schedule property was purchased by Siddaramaiah in his name though it was contended that the defendants had borrowed loan from Thyagaraja Co-operative Bank and put up construction. The Trial Court framed issues and the plaintiffs lead evidence through PW1 and got marked Exhibits P1 to P10 while the defendants did not adduce any evidence nor did they cross-examine PW1.
5. The Trial Court has recorded a finding that the plaintiffs and defendants constitute a joint family, that plaintiff No.1 proved that she was the legally wedded wife of deceased Siddaramaiah and that plaintiff No.2 was the adopted son of Siddaramaiah. 7
6. The Trial Court took note of the various documents produced by the plaintiff, which evidenced the relationship of the plaintiff and the said Siddaramaiah viz., Exhibit P5 (Voters I.D.) wherein name of Siddaramaiah is shown as husband of plaintiff No.1, Exhibit P6, which is the order of the Tahsildar sanctioning amount of Rs.400 per month in the scheme of Sandhya Suraksha, Exhibit P7, which is the Certificate issued by the Indian Plywood Industries, Research and Training Institute certifying Siddaramaiah to be an employee of the Institution and further, stating that plaintiff No.1 was nominated in her capacity as his wife as a nominee for all retirement benefits.
7. The Court also referred to Exhibit P8, which is the Transfer Certificate and Exhibit P9, which is the SSLC Marks Card pertaining to plaintiff No.2, which show the name of Siddaramaiah as the father of the said plaintiff No.2. The Court also records the absence 8 of cross-examination of plaintiffs' witnesses and proceeded to decree the suit.
8. The Court has also passed an equitable order insofar as plaintiff No.2 and defendant Nos.2 to 4 were allotted separate shares in view of the findings as regards the relationship of Late Siddaramaiah with Plaintiff No.1 and so also the relationship with the defendants on the other hand and that plaintiffs and defendants were enjoying possession. The Trial Court declined to grant the relief of mesne profits on the ground that the schedule property would not fetch any rent.
9. The appellants have now sought to contend in the appeal that the adoption of plaintiff No.2 by Siddaramaiah is not proved, that the finding as regards plaintiff No.1 being the wife and plaintiff No.2 being the son of late Siddaramaiah is without any basis and have 9 sought for an opportunity to contest the matter once again before the Trial Court and for that purpose have sought for an order of remand.
10. The present appeal has been filed with a delay of 955 days and condonation of the delay has been sought for. The affidavit filed in support of the said application is bald and the only reason attributed for the delay is that the defendants' advocate did not inform them with respect to the disposal of the suit and that it came to their knowledge only after Proclamation Notice was issued.
11. It is seen that though the judgment was passed on 20.12.2013, certified copy was applied only on 17.3.2016 and the vague assertion that the advocate did not inform the defendants as regards the disposal of the suit does not inspire any confidence. Parties are required to be diligent in prosecution of the proceedings 10 and duty is cast on the parties to enquire with their legal counsel regarding the progress of the proceedings and not-enquiring regarding the stage of litigation between 20.12.2013 and 17.3.2016 reflects a negligent attitude and no sufficient cause has been assigned, which is worthy of acceptance as regards the inaction in following-up the proceedings for the aforesaid period. Hence, the explanation is not acceptable.
12. As regards the consideration of the matter on merits, we find that the Trial Court has taken note of contentions of both parties and has passed an equitable relief granting share to the plaintiffs and defendant Nos.2 to 4 also. Suit was decreed taking note of the admitted position that defendant Nos.2 to 4 were in joint possession of the property and taking note of the admitted position that the relationship of defendant Nos.2 to 4 to the Late Siddaramaiah was not be seriously disputed. In the absence of the defendants 11 cross examining PW1 and leading their side of evidence no serious effort was made before the trial court to substantiate their claim.
13. We find no infirmity with the findings of the trial court as regards the relationship between defendant No.1 and defendant Nos.2 to 4 with late Siddaramaiah on the one hand and the plaintiff and Late Siddaramaiah on the other and as regards their entitlement as conferred by the trial court. In view of the same appeal is dismissed both on the grounds of delay and on merits.
Sd/-
JUDGE Sd/-
JUDGE RS/* ct:am