Karnataka High Court
Sri C Siddappa S/O Late Channappa vs M.S. Lingaprabhu S/O M.L.Sadashivaiah on 4 September, 2017
Author: S.N.Satyanarayana
Bench: S.N. Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA
RSA No.384/2009 (PAR)
c/w
RSA No.385/2009 (PAR)
IN R.S.A.No.384/2009
BETWEEN
1. SRI C.SIDDAPPA
S/O LATE CHANNAPPA
AGED ABOUT 30 YEARS
R/AT NO.50, 4TH MAIN
BYRAVESHWARANAGAR
BANGALORE - 72
2. C.REVANNA
S/O LATE CHANNAPPA
AGED ABOUT 29 YEARS
R/AT NO.50, 4TH MAIN
BYRAVESHWARANAGAR
BANGALORE - 72
...APPELLANTS
(BY SRI M.SHIVAPPA, SR. COUNSEL FOR
M/S. M.SHIVAPPA & ASSOCIATES, ADVOCATES)
AND
1. M.S.LINGAPRABHU
S/O M.L.SADASHIVAIAH
AGED ABOUT 40 YEARS
R/AT MADANAYAKANAHALLI
MADHAVARA POST
BANGALORE NORTH TALUK
2
2. SRI CHENNAPPA
S/O LATE SIDDAPPA
SINCE DECEASED BY HIS LRs.,
a) SMT. DAKSHYANI
W/O SHASHISHANKAR
D/O LATE CHENNAPPA
AGED ABOUT 32 YEARS
R/AT NO.63, 6TH CROSS
NEAR TELEPHONE EXCHANGE
CHANDRA LAYOUT
BANGALORE - 560 040
b) SIDDAMADHAMMA
W/O LATE CHENNAPPA
AGED ABOUT 53 YEARS
R/AT NO.63, 6TH CROSS
NEAR TELEPHONE EXCHANGE
CHANDRA LAYOUT
BANGALORE - 560 040
3. L.S.REVANNA
S/O LATE SHIVALINGAIAH
AGED ABOUT 73 YEARS
R/AT HADRIPURA
KADANUR POST
DODDABELAVANGALA HOBLI
DODDABALLAPURA TALUK
BANGALORE RURAL DISTRICT
4. SMT. GOWRAMMA
W/O L.S.REVANNA
SINCE DECEASED BY HER LRs.
a) RENUKASWAMY
S/O L.S.REVANNA
AGED ABOUT 43 YEARS
R/AT HADRIPURA,
KADANUR POST
DODDABELAVANGALA HOBLI
DODDABALLAPURA TALUK
BANGALORE RURAL DISTRICT
3
b) RAJASHEKAR
S/O L.S.REVANNA
AGED ABOUT 38 YEARS
R/AT HADRIPURA,
KADANUR POST
DODDABELAVANGALA HOBLI
DODDABALLAPURA TALUK
BANGALORE RURAL DISTRICT
c) GANGAMMANNI
@ SIDDAGANGAMMA
D/O L.S.REVANNA
AGED ABOUT 40 YEARS
R/AT HADRIPURA,
KADANUR POST
DODDABELAVANGALA HOBLI
DODDABALLAPURA TALUK
BANGALORE RURAL DISTRICT
5. GANGAMMA
W/O M.K.SADASHIVAIAH
AGED ABOUT 70 YEARS
R/AT MADANAYAKANAHALLI & POST
HAREKATHANAHALLY
DASANAPURA HOBLI
BANGALORE NORTH TALUK
...RESPONDENTS
(BY SRI V.F.KUMBAR, ADVOCATE FOR C/R1.
SRI M.V.VEDACHALA, ADVOCATE FOR R.2(a) & 2(b).
SRI S.NAGARAJA, ADVOCATE FOR R3, R4(a-c) & R5)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 06.01.2009
PASSED IN R.A.No.51/2008 ON THE FILE OF THE PRL.
SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 23.01.2008 PASSED IN OS.No.127/02
(OLD No.654/1998) ON THE FILE OF THE CIVIL JUDGE,
(SR.DN.), DODDABALLAPUR.
4
IN R.S.A.No.385/2009
BETWEEN
1. SRI C.SIDDAPPA
S/O LATE CHANNAPPA
AGED ABOUT 30 YEARS
R/AT NO.50, 4TH MAIN
BYRAVESHWARANAGAR
NAGARABHAVI MAIN ROAD
BANGALORE - 72
2. C.REVANNA
S/O LATE CHANNAPPA
AGED ABOUT 29 YEARS
R/AT NO.50, 4TH MAIN
BYRAVESHWARANAGAR
NAGARABHAVI MAIN ROAD
BANGALORE - 72
...APPELLANTS
(BY SRI M.SHIVAPPA, SR. COUNSEL FOR
M/S. M.SHIVAPPA & ASSOCIATES, ADVOCATES)
AND
1. GANGAMMA
W/O M.K.SADASHIVAIAH
AGED ABOUT 70 YEARS
R/AT MADANAYAKANAHALLI & POST
HAREKATHANAHALLY
DASANAPURA HOBLI
BANGALORE NORTH TALUK
2. RENUKASWAMY
S/O L.S.REVANNA
AGED ABOUT 43 YEARS
R/AT HADRIPURA
KADANUR POST
DODDABELAVANGALA HOBLI
DODDABALLAPURA TALUK
BANGALORE RURAL DISTRICT
5
3. RAJASHEKAR
S/O L.S.REVANNA
AGED ABOUT 38 YEARS
R/AT HADRIPURA
KADANUR POST
DODDABELAVANGALA HOBLI
DODDABALLAPURA TALUK
BANGALORE RURAL DISTRICT
4. GANGAMMANNI
@ SIDDAGANGAMMA
D/O L.S.REVANNA
AGED ABOUT 40 YEARS
R/AT HADRIPURA,
KADANUR POST
DODDABELAVANGALA HOBLI
DODDABALLAPURA TALUK
BANGALORE RURAL DISTRICT
5. L.S.REVANNA
S/O LATE SHIVALINGAIAH
AGED ABOUT 73 YEARS
R/AT HADRIPURA, KADANUR POST
DODDABELAVANGALA HOBLI
DODDABALLAPURA TALUK
BANGALORE RURAL DISTRICT
6. DAKSHYANAMMA
W/O SHASHISHANKAR
D/O LATE CHENNAPPA
AGED ABOUT 33 YEARS
R/AT NO.63, 6TH CROSS
NEAR TELEPHONE EXCHANGE
CHANDRA LAYOUT
BANGALORE - 560 040
7. SIDDAMADHAMMA
W/O LATE CHENNAPPA
AGED ABOUT 60 YEARS
R/AT NO.63, 6TH CROSS
NEAR TELEPHONE EXCHANGE
CHANDRA LAYOUT
BANGALORE - 560 040
6
8. M.S.LINGAPRABHU
S/O M.L.SADASHIVAIAH
AGED ABOUT 40 YEARS
R/AT MADANAYAKANAHALLI
MADHAVARA POST
BANGALORE NORTH TALUK
...RESPONDENTS
(BY SRI S.NAGARAJA, ADVOCATE FOR R1 TO R5.
SRI M.V.VEDACHALA, ADVOCATE FOR R6 & 7)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 06.01.2009
PASSED IN R.A.No.53/2008 ON THE FILE OF THE PRL.
SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 23.01.2008 PASSED IN OS.No.127/02
(OLD NO.654/1998) ON THE FILE OF THE CIVIL JUDGE,
(SR.DN.), DODDABALLAPUR.
THESE RSAs COMING ON FOR ADMISSION, THIS DAY
THE COURT MADE THE FOLLOWING:
JUDGMENT
These two second appeals arise out of the judgment rendered in O.S.No.127/2002 (Old No.654/1998) on the file of the Civil Judge (Sr. Dn.,) Doddaballapur, Admittedly, the said suit was for the relief of partition filed by the appellants in both the appeals. The prayer in the said suit was to declare the Will bearing registration No.20/68-69 dated 18.12.1968 executed by C H Revanna in the original suit is inoperative and illegal, also for 7 partition of the suit schedule properties, which are in all 16 items. Out of which, items Nos.1 to 14 are agricultural lands and item Nos.15 and 16 are residential properties said to be belonging to the joint family of the propositus Chennappa S/o Siddappa, who died intestate leaving his surviving four children i.e. three sons namely C H Revanna, C H Siddappa, another son Puttarevanna and a daughter by name Nanjamma.
2. The suit in O.S.No.127/2002 was filed by the grandchildren of C H Siddappa i.e. his only son Channappa's two sons i.e. C Siddappa and C Revanna and in the said suit, plaintiffs' father Channappa is defendant No.4, whereas defendants Nos.1 and 2 are the children of their grandfathers' elder brother C H Revanna and defendant No.3 is none other than their grandfather Siddappa's younger brother Putttarevanna's wife. Defendant No.5 is the person said to be the adopted son of Nanjamma and her husband, who is the son of defendant No.1. The said Nanjamma is the daughter of propositus 8 Chennappa son of Siddappa. The suit in O.S.No.127/2002 came to be decreed by judgment dated 23.01.2008 against which, two appeals came to be filed in R.A. Nos.51/2008 c/w R.A. No.53/2008 on the file of the Principal District Judge, Bangalore Rural District, Bangalore.
3. R.A.No.51/2008 is by the deceased defendant No.3's alleged legal heir M S Lingaprabhu and R.A.No.53/2008 is by defendant No.1 Gangamma and defendant Nos.2(a), 2(b) and 2(c) were appellants 2 to 4 and defendant No.5 is appellant No.5 in the said appeal. Both the appeals were clubbed together and disposed of by the judgment dated 06.01.2009 wherein, the judgment was rendered mainly depending upon the averments made in the plaint in O.S.No.74/1998, which was filed by the father of plaintiffs 1 and 2 in the original suit for the relief of declaration and permanent injunction wherein, it is stated that he had set up a plea that the suit schedule properties referred to in the said suit are his absolute properties, which he has 9 secured to his share under a partition that has taken place 50 years prior to the filing of the said suit. The said plea was opposed by defendant Nos.1 to 3 in the present suit, who were also defendants in the earlier suit wherein, they had specifically raised a defence that there was no partition in the joint family of the deceased propostitus Chennappa son of Siddappa of the properties that are available for partition. It is stated that in this background, the present suit in O.S.No.127/2002 (Old No.654/1998) was filed.
4. It is seen that the Lower Appellate Court without going into the merits of the appeals and without considering the pleadings, oral and documentary evidence has proceeded to decide both the regular appeals by relying upon the said averment, which is the subject matter of these appeals filed by the plaintiffs in the original suit in O.S.No.127/2002.
5. When these appeals were taken up for admission and heard for some time and when it reached a stage 10 where substantial questions of law were required to be framed. At this stage, learned counsel appearing for all the parties i.e. appellants-defendants, respondent Nos.2(a) and 2(b) in RSA No.384/2009, who are respondent Nos.6 and 7 in RSA No.385/2009, respondent Nos.3, 4(a-c) in RSA No.384/2009 and respondent No.1 in RSA No.384/2009, who is respondent No.8 in RSA No.385/2009, would together submit that the basis on which the regular appeals were considered by the Lower Appellate Court is erroneous in not going into the merits of the case, not discussing the pleadings and not re- appreciating the oral and documentary evidence in the first appeal as required under Section 96 of the CPC and also by not following the provisions of Order 41 Rule 30 of CPC while disposing of the regular appeals. Therefore, these matters call for reconsideration by the Lower Appellate Court instead of framing substantial question of law and deciding it in this appeal where the scope will be reduced only to framing of question of law based on the findings of the Lower Appellate Court. In support of this, they also 11 relied upon the judgment in the case M/s. United Engineers and Contractors -vs- Secretary to Government, A.P. and others reported in AIR 2013 SC 2239.
6. In the light of the aforesaid submissions by all the parties, also, on going through the relevant provisions of Section 96 as well as Order 41 Rule 30 of CPC, which is reiterated in the aforesaid judgment, this Court is of the considered opinion that the judgment in RA No.51/2008 c/w 53/2008 on the file of the Principal District Judge, Bangalore Rural District, Bangalore, is required to be set aside and both the matters are required to be remanded to the Court of the Principal District Judge, Bangalore Rural District, Bangalore, for re-consideration. While doing so, it is made clear that the Lower Appellate Court shall not be influenced by any of the findings in the judgment dated 06.01.2009 passed in RA No.51/2008 c/w R.A.No.53/2008 and it has to independently re-appreciate the pleadings, oral and documentary evidence available on record in the 12 light of the grounds of appeal urged in RA No.51/2008 c/w R.A.No.53/2008
7. With the aforesaid observations, these appeals are disposed of. In the remanded appeals, the Court of the Principal District Judge, Bangalore Rural District, Bangalore, shall hear the matter and dispose of the same within 12 months from the date of receipt of the records.
8. To prevent delay in disposal of remanded appeals, they shall be called for the first time before the Principal District Judge, Bangalore Rural District, Bangalore, on 20.09.2017. In the meanwhile, the Registry to send the entire LCR to the Court of Principal District Judge, Bangalore Rural District, Bangalore. On that day, the appellants and respondents in both the appeals shall appear before the Lower Appellate Court either in person or through their counsel.
9. In view of disposal of the appeals, Misc.Cvl. No.11754/2009 in RSA No.384/2009 and Misc.Cvl. 13 No.11753/2009 in RSA No.385/2009 do not survive for consideration and the same are disposed of.
Sd/-
JUDGE mv