Karnataka High Court
Sri B J Sandeep vs Sri B N Janardhana Reddy on 6 March, 2013
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 06TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
R.F.A.NO.866/2012 (PAR)
BETWEEN:
1. SRI. B.J.SANDEEP,
AGED ABOUT 27 YEARS,
S/O B.N.JANARDHANA REDDY.
2. SMT. B.J.DIVYA,
AGED ABOUT 24 YEARS,
D/O B.N.JANARDHANA REDDY,
BOTH ARE RESIDING AT
NO.286, BELLANDUR,
BELLANDUR POST,
BANGALORE-560 037.
... APPELLANTS
(BY SRI: K.S.MANJUNATH, ADV.)
AND:
1. SRI. B.N.JANARDHANA REDDY,
AGED ABOUT 53 YEARS,
S/O B.P.NARAYANAPPA,
R/AT BELLANDUR VILLAGE,
VARTHUR HOBLI,
BANGALORE EAST TALUK.
2. SMT. N.SHANTHA,
AGED ABOUT 47 YEARS,
W/O SRI. RAGHAVENDRA,
R/AT NO.85,
EAST ANJANEYA TEMPLE STREET,
BASAVANAGUDI,
BANGALORE-560 004.
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3. SMT. V.SUBBA LAKSHMI,
MAJOR IN AGE,
W/O SRI V.Y.S.SHARMA,
R/A NO.2182, 8TH MAIN ROAD,
SIVA 'E' BLOCK,
RAJAJINAGAR II STAGE,
BANGALORE-560 010.
4. DR. MARY THOMAS,
AGED ABOUT 45 YEARS,
W/O MR. M.J.THOMAS,
R/A NO.J-124, USHA APARTMENTS,
17TH MAIN, 4TH BLOCK, JAYANAGAR,
BANGALORE-560 011.
5. DR. S.RAMA RAO,
AGED ABOUT 49 YEARS,
S/O S.V.G.KRISHNA RAO,
R/A NO.12, 5TH MAIN ROAD,
N.T.I LAYOUT, II STAGE,
BANGALORE-560 094.
6. SRI. K.RAJA SEKHAR,
AGED ABOUT 40 YEARS,
S/O K.SHIVANANDA MURTHY,
R/A NO.221,
BALARSRAL HOUSING SOCIETY,
ROAD, NO.5, MAHINDRA HILLS,
SECUNDERABAD.
... RESPONDENTS
(BY SRI: V.RAMESH BABU, ADV. FOR M/S CHALAPATHY &
SRI.SRINIVAS FOR C/R2 TO R5 AND R6, R1 SERVED)
THIS RFA IS FILED UNDER SEC.96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 3.2.2012
PASSED IN O.S.NO.8064/2003 ON THE FILE OF THE XXII
ADDL. CITY CIVIL JUDGE, BANGALORE, DISMISSING THE
SUIT FOR DECLARATION, PARTITION AND PERPETUAL
INJUNCTION.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Though this appeal is listed for admission, with the consent of counsel on both sides, it is heard finally.
2. This appeal is filed by the plaintiffs in O.S.No.8064/2003, assailing the judgment and decree dated 03/02/2012, passed by the XXII Addl. City Civil Judge at Bangalore.
3. For the sake of convenience, the parties are referred to in terms of their status before the trial court.
4. The plaintiffs sought a declaration that the sale deeds executed by defendant No.1 in favour of defendant Nos.2 to 6 who are five in number, are not binding on the plaintiffs' share in the "A" schedule property. They also sought for partition and separate possession of their 1/3rd share and an injunction restraining defendant Nos. 2 to 6 from entering "A" schedule property.
5. It is the case of the plaintiffs, who were about 18 and 15 years of age at the time of filing the suit that land in Sy.No.22/1 of Kaikondarahalli Village of Varthur Hobli, belonged to the grand-father of the plaintiffs, -4- B.P.Narayanappa. The plaintiffs are the children of defendant Nos.1 and defendant Nos.2 to 6 are the purchasers of the suit schedule 'B' to 'F' properties. According to the plaintiffs, defendant No.1 has several vices and that he has squandered family monies and properties and has incurred "avyavaharika debts" for meeting his immoral expenditure. That he has been alienating ancestral properties, which were acquired by him at a partition between himself, his brothers and father. That the alienations have not been made for family needs or benefit. That the land in Sy.No.22/1 is the ancestral property and the same includes the land in Sy.Nos. 22/1-A to 22/1-C, which measures 1 acre and the same is a dry land and the same has been sold for the purpose of forming a layout. That five sites have been carved out in Sy.No.22/1-C and defendants Nos.2 to 6 have illegally purchased the said land. Therefore, the plaintiffs sought 1/3rd share in the said suit schedule properties by contending that defendant Nos.2 to 6 have no title over the suit schedule properties and that the plaintiffs and defendant No.1 are in joint possession.
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6. Defendant No.1 has been placed exparte in the suit.
7. The other defendants viz., defendant Nos. 2 to 6 filed their written statement denying the averments in the plaint and that they stated that the plaintiffs have been set up by defendant No.1 to file the present suit. That the plaintiffs are not in possession of "B" to "F" schedule properties. That these defendants have purchased the suit schedule properties for a valuable consideration and thereafter, they have got their names mutated in the records. They contended that the plaintiffs had no cause of action against them. Therefore, they sought for the dismissal of the suit.
8. On the basis of the rival pleadings, the trial court framed the following issues for its consideration:
i) Whether the plaintiffs prove that the suit 'A' schedule property is ancestral and joint family property of plaintiffs and 1st defendant?
ii) Whether plaintiffs prove that the 1st defendant sold different portions in 'A' schedule i.e., schedule 'B' to 'F' by defendant No.1 to defendant Nos.2 to 6 without their consent or knowledge for any legal necessity and for family benefits?-6-
iii) Whether defendant Nos.2 to 6 prove that alienation of 'B' to 'F' schedule properties in their favour by 1st defendant was for the benefit of the family and legal necessity?
iv) Whether the plaintiffs prove that the sale deeds executed in favour of defendant Nos.2 to 6 in respect of plaint 'B' to 'F' schedule are not valid and not binding on them?
v) Whether the plaintiffs prove that their father i.e., 1st defendant incurred Avyavaharika debt and the plaint 'B' to 'F' schedule properties were sold to discharge such debts?
vi) Whether the plaintiffs prove that they are in lawful possession of the suit schedule property?
vii) Whether the plaintiffs prove that the defendants 2 to 6 tried to interfere with their possession?
viii) Whether the valuation of suit is not proper and the court fee paid is inadequate?
ix) Whether the suit has brought for partial partition and therefore, it is not maintainable?
x) Whether the plaintiffs prove that they are entitled to a decree of permanent injunction?-7-
xi) Whether the plaintiffs prove that they are entitled for 1/3rd share each?
9. In support of their case, plaintiff No.1 examined himself as PW1 and produced six documents which were marked as Exs.P-1 to P-6. While the defendants examined one witness as DW1 and produced 97 documents, which were marked as Exs.D-1 to D-97.
10. On the basis of the said evidence, the trial court while holding on issue No.9 that the suit brought for partial partition is not maintainable, answered issue Nos.1 and 2 and 4 to 7 and 10 and 11 in the negative and issue No.9 in the affirmative as already stated and that issue No.3 would not survive for consideration. Being aggrieved by the said judgment and decree, the plaintiffs are in appeal.
11. I have heard the learned counsel for the appellants and the learned counsel for the respondent Nos.2 to 6. Respondent No.1 is served and unrepresented.
12. It is contended on behalf of the appellants that the appellants were entitled to maintain the suit seeking partition of their share in the suit schedule properties. Of course, during the course of evidence, it has come on -8- record that there were other properties also, which were the joint family properties and which could have also been made a part of the schedule to the suit and in which the plaintiffs also have a share. The trial court held that a suit for partial partition is not maintainable and on that basis, while answering issue No.9, dismissed the suit as not maintainable. At the same time, the trial court has answered the other issues on merits. That the said findings on the other issues are incorrect and that if an opportunity is granted to the appellants, having regard to their tender age, they would be in a position to amend the plaint and include all the properties in respect of which they have a share and the suit could be tried afresh on the basis of the said amendment. He, therefore, submitted that the judgment and decree of the trial court be set aside and permission be granted to the appellants to file an application seeking amendment of the plaint, for the purpose of including the other joint family properties in respect of which the plaintiffs have a share before the trial court.
13. Per contra, learned counsel for respondent Nos.2 to 6 supporting the judgment and decree of the trial court, -9- has stated that as far as the suit schedule properties are concerned, they have been purchased by defendant Nos.2 to 6 for a valuable consideration and after exercising due diligence. That the suit has been rightly dismissed as not being maintainable since the other properties have not been included in the plaint. That the findings given by the trial court would not call for interference in this appeal.
14. Having heard the learned counsel on merits, the only point that arises for my consideration is, as to whether the judgment and decree granted by the trial court requires to be set aside in order to grant the appellants an opportunity to seek a complete partition of the joint family properties of the plaintiffs and defendant No.1.
15. It is not in dispute that the plaintiffs who were 18 and 15 years respectively at the time of filing of the suit for partition and seeking other reliefs are the children of defendant No.1. It is also not in dispute that the first defendant has alienated the suit schedule properties to defendant Nos.2 to 6. The plaintiffs, when they sought for the relief of partition and separate possession and when they had also assailed the alienations made by defendant -10- No.1 in favour of defendant Nos.2 to 6 have, in fact, not included all the joint family properties, in which they have a share as part of the suit schedule properties.
16. On a perusal of paragraphs 15 and 16 of the impugned judgment, it becomes clear that there were several other properties, in respect of which the plaintiffs could have sought a partition and the same having not been included in the suit filed by the plaintiffs, the trial court, based on a decision of this court reported in the case of Ganapathi (since deceased by legal representatives) and others V/s. Smt. Sukri (since deceased by legal representatives) and another (AIR 2009 (1) Karnataka R 107) has dismissed the suit as not maintainable. If that is so, then it would not have been necessary for the trial court to give a finding on the other issues, although it has not given any finding on issue No.3 on the premise that it would not survive for consideration. Therefore, keeping in mind the tender age of the plaintiffs in the interest of justice and having regard to the interest of both parties, the judgment and decree of the trial court would have to be set aside. It is necessary that an opportunity must be given to the appellants to amend the -11- plaint so as to include all the properties in respect of which they have a share so as to seek a complete partition. Defendant Nos.2 to 6, at best, can only seek for a partition in respect of the suit schedule properties, which they have purchased, if the same are allotted to the share of defendant No.1 at the time when the equities between the parties are adjusted.
17. If the appellants exercise their right to amend the plaint and file an application seeking amendment of the plaint for inclusion of the other joint family properties and for making other averments, the same shall be allowed by the trial court and an opportunity be given to the respondents to file additional written statement. The trial court shall then recast the issues pursuant to the amendment sought by the plaintiffs and dispose of the matter afresh in accordance with law. Accordingly, the appeal is allowed in terms of the above and remanded to the trial court. Parties to bear their respective costs.
18. Having regard to the fact that the suit is of the year 2003, the trial court is granted a period of nine months to -12- dispose of the suit from the date of appearance of defendant No.1 or his being placed ex parte.
19. Though defendant No.1 was placed exparte in the suit, nevertheless, the trial court to issue notice to defendant No.1 once again. Since the other parties are represented by their respective counsel, they are directed to appear before the trial court on 27/03/2013. On the said date, the appellants to file their application seeking amendment of the plaint, if they are so advised.
20. The trial court to issue notice on the main suit as well as on the application to defendant No.1 in the suit. It is needless to observe that copies of the said application would be served on defendant Nos. 2 to 6 also.
21. In view of the disposal of the appeal, the applications would not survive for consideration and they are, accordingly, disposed of.
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JUDGE S*