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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Aravind Kumar, E.S. Indiresh, JJ.
Bellur Usha Shivaprasad - Appellant
Versus
Sarasamba Anantha Swamy - Respondent
Regular First Appeal No. 1522 of 2013, 1795 OF 2013
Decided On : 02-06-2020
EVICTION SUIT - OWNERSHIP OF SUIT SCHEDULE PROPERTY - BENAMI TRANSACTION - WILL - PARTITION - MAINTENANCE - DAMAGES - [SECTION 4 OF BENAMI TRANSACTION (PROHIBITION) ACT, 1988] - [ORDER 41 RULE 27 OF THE CODE OF CIVIL PROCEDURE] - [ORDER XLI RULE 23 AND RULE 23-A OF THE CODE OF CIVIL PROCEDURE] - [ORDER XLI RULE 25 OF THE CODE OF CIVIL PROCEDURE] - [SECTION 92 OF EVIDENCE ACT] - Plaintiffs filed a suit for eviction/ejectment of defendants from suit schedule property and for damages. Defendant No.3 (husband of 1st plaintiff and father of second plaintiff) got transposed himself as plaintiff No.3. Plaintiffs claimed half share in the suit schedule property inter-alia seeking Rs.15,000/- per month as damages/maintenance against appellant No.3 and respondents 1 and 2. Trial Court decreed the suit partly by arriving at a conclusion that third plaintiff along with defendants-1 and 2 are entitled for 1/3rd share in the suit schedule property. Both plaintiffs and defendants preferred appeals. Plaintiffs contended that trial Court erred in decreeing the suit by granting third plaintiff only 1/3rd share along with defendant Nos.1 and 2 in the suit schedule property which absolutely belongs to him and it is an erroneous finding. Defendants contended that relief sought by the plaintiffs No.1 and 2 for partition and for maintenance as pleaded in the suit is not maintainable. HELD, allowing the appeals in part, setting aside the impugned judgment and decree and remanding the suit back to the trial Court: (i) Trial Court erred in not considering the available evidence in proper perspective or has proceeded to ignore the available material evidence. (ii) Trial Court has not considered the effect of original defendant No.1 being transposed as plaintiff No.3 and its impact on plaintiffs-1 and 2 claim, particularly in the background of written statement filed by the original first defendant, whereunder he had sought for dismissal of the suit. (iii) Trial Court neither framed any additional issues under the changed circumstances nor has recorded any findings with regard to factual aspects of the case pursuant to the reconciliation of plaintiff No.3 with plaintiff No.1. (iv) Trial Court has not taken note of several factors namely, admissions found in the pleadings which came to be exhibited before it. (v) Subsequent events that has taken place during the pendency of the suit, namely first defendant getting himself transposed as third plaintiff and thereby altering his status and he (transposed third plaintiff) not giving up his earlier pleadings namely, pleas putforward in the written statement filed as first defendant and its impact on the prayer sought for in the suit ought to have been examined by the trial court. (vi) Trial Court has failed to take into consideration the subsequent event of transposition of plaintiff No.3, while deciding the suit and same has resulted in deciding the appeal on merits also.
Fact of the Case:
Plaintiffs filed a suit for eviction/ejectment of defendants from suit schedule property and for damages. Defendant No.3 (husband of 1st plaintiff and father of second plaintiff) got transposed himself as plaintiff No.3. Plaintiffs claimed half share in the suit schedule property inter-alia seeking Rs.15,000/- per month as damages/maintenance against appellant No.3 and respondents 1 and 2. Trial Court decreed the suit partly by arriving at a conclusion that third plaintiff along with defendants-1 and 2 are entitled for 1/3rd share in the suit schedule property. Both plaintiffs and defendants preferred appeals.
Finding of the Court:
(i) Trial Court erred in not considering the available evidence in proper perspective or has proceeded to ignore the available material evidence. (ii) Trial Court has not considered the effect of original defendant No.1 being transposed as plaintiff No.3 and its impact on plaintiffs-1 and 2 claim, particularly in the background of written statement filed by the original first defendant, whereunder he had sought for dismissal of the suit. (iii) Trial Court neither framed any additional issues under the changed circumstances nor has recorded any findings with regard to factual aspects of the case pursuant to the reconciliation of plaintiff No.3 with plaintiff No.1. (iv) Trial Court has not taken note of several factors namely, admissions found in the pleadings which came to be exhibited before it. (v) Subsequent events that has taken place during the pendency of the suit, namely first defendant getting himself transposed as third plaintiff and thereby altering his status and he (transposed third plaintiff) not giving up his earlier pleadings namely, pleas putforward in the written statement filed as first defendant and its impact on the prayer sought for in the suit ought to have been examined by the trial court. (vi) Trial Court has failed to take into consideration the subsequent event of transposition of plaintiff No.3, while deciding the suit and same has resulted in deciding the appeal on merits also.
Issues: 1. Whether the judgment and decree passed by the trial court suffers from any infirmity either in law or on facts calling for our interference? 2 Whether trial court has appreciated the evidence on record in proper perspective or has failed to consider the available evidence? 3. Whether application filed under Order 41 Rule 27 by the third plaintiff deserves to be allowed or dismissed? 4. What order?
Ratio Decidendi: 1. Trial Court has not considered the available evidence in proper perspective or has proceeded to ignore the available material evidence. 2. Trial Court has not considered the effect of original defendant No.1 being transposed as plaintiff No.3 and its impact on plaintiffs-1 and 2 claim, particularly in the background of written statement filed by the original first defendant, whereunder he had sought for dismissal of the suit. 3. Trial Court neither framed any additional issues under the changed circumstances nor has recorded any findings with regard to factual aspects of the case pursuant to the reconciliation of plaintiff No.3 with plaintiff No.1. 4. Trial Court has not taken note of several factors namely, admissions found in the pleadings which came to be exhibited before it. 5. Subsequent events that has taken place during the pendency of the suit, namely first defendant getting himself transposed as third plaintiff and thereby altering his status and he (transposed third plaintiff) not giving up his earlier pleadings namely, pleas putforward in the written statement filed as first defendant and its impact on the prayer sought for in the suit ought to have been examined by the trial court. 6. Trial Court has failed to take into consideration the subsequent event of transposition of plaintiff No.3, while deciding the suit and same has resulted in deciding the appeal on merits also.
Final Decision: Appeals allowed in part. Judgment and decree passed by the trial court set aside and suit remitted back to the trial Court for disposal afresh by keeping in mind the observations made by the High Court. I.A.No.3/2016 filed by the appellants under Order 41 Rule 27 stands remitted back to trial Court for consideration on merits and both parties are at liberty to lead additional evidence and trial court shall consider such prayer made if any, favourably. The suit shall be decided by the trial Court expeditiously and at any rate, within an outer limit of six (6) months as the lis is pending since 2003.
JUDGMENT
E S Indiresh, J. - These two appeals are preferred by the plaintiffs and defendants being aggrieved by the judgment and decree dated 31st July, 2013 passed in OS NO.677 of 2010 by XVIII Additional City Civil Judge, Bengaluru whereunder suit filed by the plaintiffs for evicting/ejectment of the defendants from suit schedule property and for damages came to be decreed partly by arriving at a conclusion that third plaintiff along with defendants-1 and 2 are entitled for 1/3rd share in the suit schedule property.
2. For the sake of convenience, parties in this appeal shall be referred to in terms of their status before the trial court.
3. Originally suit was filed before the Family Court by plaintiffs No.1 and 2 in O.S.No.1/2003 (Mother and daughter) and thereafter suit was transferred to XXXVII Additional City Civil Judge (CCH 57) and consequently, re-numbered as O.S.No.677/2010.
4. Appellants No.1 and 2 in RFA No.1522/2013 who are plaintiffs-1 and 2 in OS No.677 of 2020 sought for half of the plaint schedule property interalia seeking Rs.15,000/- per month as damages/maintenance against appellant No.3 and respondents 1 and 2 herein. During the pendency of the suit, defendant No.3 (husband of 1st plaintiff and father of secondplaintiff) got transposed himself as plaintiff No.3 by order dated 09.01.2013 passed by the trial Court. Plaintiff No.3 is brother of defendant Nos.1 and 2.
5. The brief facts of the case as alleged in the plaint is, plaintiff No.1 and plaintiff No.3 got married on 12.05.1978 at Mysore and they stayed together for sometime at Bengaluru and later moved to United States of America where they were employed. They have two children namely Son-Mr. Vivek and daughter-Ms.Vidya (plaintiff No.2). Plaintiff Nos.2 and 3 are permanent citizens of United States of America. Due to matrimonial differences between plaintiff Nos.1 and 3, plaintiff No.1 had filed MC No.40/1994 before Civil Judge (Senior Division), Mysore for decree for divorce and trial Court granted a decree for divorce on 04.03.1996.
6. The case of plaintiff Nos.1 and 2 is that first plaintiff has contributed towards acquisition of the properties held by the parties and also first and third plaintiffs have shared equally all the liabilities in respect of acquisition of the suit schedule property. It was contended that plaintiff No.3 has to provide necessary financial support to the second plaintiff herein for settlement in life besides her higher education including her marriage. Therefore, second plaintiff is entitled for her claim to maintenance, education, marriage for settlement in life which has to be done by plaintiff No.3. It was contended plaintiffs have undergone mental agony in view of the dispute between plaintiff Nos.1 and 3. It is further alleged that 1st plaintiff herself had to take care of plaintiff No.2, being unemployed. It is also contended that first plaintiff has also contributed towards the acquisition of the properties of the third plaintiff and hence plaintiffs 1 and 2 are entitled for half share in the suit schedule property held by third plaintiff in India by virtue of his status. The plaintiffs further alleged that defendants No.1 and 2, (sisters of third plaintiff herein), are trying to interfere with the family matters between first plaintiff and third plaintiff and also claiming their share in the entire schedule property belonging to plaintiff No.3. In view of the fact that plaintiff No.3 has made an attempt to transfer whole property in favour of third parties, the original plaintiffs have filed a suit seeking half share of the plaint schedule property inter-alia seeking Rs.15,000/- per month from the defendants therein by way of damages, as defendants are in occupation of the schedule properties and also sought for delivery of vacant possession and such other reliefs.
7. Plaintiff No.3 (originally defendant No.1) has filed written statement admitting solemnization of marriage on 12.05.1978 between first plaintiff and
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