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2023 Supreme(Online)(KAR) 20569
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NC: 2023:KHC:37119
RSA No. 2140 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 2140 OF 2021 (PAR/INJ)
BETWEEN:
1.
K. RAMESH
S/O M. KRISHNAPPA
AGED ABOUT 39 YEARS
2.
K. VENKATESHA
S/O M. KRISHNAPPA
AGED ABOUT 37 YEARS
3.
K. MURTHY S/O M. KRISHNAPPA
AGED ABOUT 32 YEARS
4.
4(a)
MANJULA K.,
SINCE DEAD BY HER LRS
NAGAPPA S/O LATE ANJINAPPA
AGED ABOUT 60 YEARS
4(b) PRASANNA S/O NAGAPPA
AGED ABOUT 32 YEARS
4(c) MANJUNATHA S/O NAGAPPA
AGED ABOUT 29 YEARS
5.
LAKSHMAMMA K.
D/O M. KRISHNAPPA
W/O NARASIMHA MURTHY
AGED ABOUT 42 YEARS
6.
RAJAMMA W/O RAGHUPATHY
D/O M. KRISHNAPPA
AGED ABOUT 40 YEARS
Digitally signed
by SHARANYA T
Location: HIGH
COURT OF
KARNATAKA
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NC: 2023:KHC:37119
RSA No. 2140 of 2021
7.
NETHRAVATHI
W/O RANGANNA
D/O M. KRISHNAPPA
AGED ABOUT 34 YEARS
APPELLANTS 1 TO 7 ARE
R/AT NAGARESHWARA TEMPLE
MAJJIGE BEDI, DEVANAHALLI TOWN
BENGALURU RURAL DISTRICT-562 110.
8.
M. SRINIVASA
S/O M. MUNIRATHNAIAH
AGED ABOUT 38 YEARS
9.
RAGHAVENDRA
S/O M. MUNIRATHNAIAH
AGED ABOUT 36 YEARS
10.
GIRIJA
S/O M. MUNIRATHNAIAH
AGED ABOUT 44 YEARS
11.
BHARATHI
S/O M. MUNIRATHNAIAH
AGED ABOUT 42 YEARS
12.
M. RUKMINI
S/O M. MUNIRATHNAIAH
AGED ABOUT 40 YEARS
APPELLANTS 8 TO 12 ARE
R/AT NO.164/1, 2ND MAIN ROAD
ANJINEYA TEMPLE ROAD, YEDIYUR,
JAYANAGAR 6TH BLOCK,
BANGALORE-560 070.
…APPELLANTS
(BY SRI R.S.RAVI, SENIOR ADVOCATE FOR
SRI CHANDRAPPA V., ADVOCATE)
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NC: 2023:KHC:37119
RSA No. 2140 of 2021
AND:
1.
2.
M. RAMAIAH
SINCE DEAD HIS LRS
ALREADY ON RECORD
I.E. RRESPONDENTS NO.2 AND 3.
R. SRINIVAS
SINCE DEAD HIS LRS
ALREADY ON RECORD
I.E. RRESPONDENTS NO.3 AND 4.
ASHWATHANARAYANA
S/O M. RAMAIAH
AGED ABOUT 44 YEARS
3.
HEMANTH KUMAR
S/O LATE R. SRINIVAS
AGED ABOUT 33 YEARS
4.
MURALI S.
S/O LATE R. SRINIVAS
AGED ABOUT 31 YEARS
RESPONDENTS 1 TO 5 ARE
R/AT GORIBAGILU STREET,
OLD BUS STAND,
DEVANAHALLI TOWN
BANGALORE RURAL DISTRICT.
5.
M. KRISHNAPPA
S/O LATE CHIKKA MOODALAPPA
AGED ABOUT 73 YEARS
R/AT NARAESHWARA TEMPLE
MAJJIGE BEDI, DEVANAHALLI TOWN
BENGALURU RURAL DISTRICT-562 110.
6.
M. MUNIRATHNAIAH
S/O LATE CHIKKA MOODALAPPA
AGED ABOUT 68 YEARS
R/AT NO.164/1, II MAIN ROAD,
ANJINEYA TEMPLE ROAD, YEDIYUR,
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NC: 2023:KHC:37119
RSA No. 2140 of 2021
6TH BLOCK JAYANAGAR,
BANGALORE – 70.
7.
MALATHI SHETTY H.
W/O SHIVARAMA SHETTY
AGED ABOUT 53 YEARS,
R/AT NO.26/1, POSTAL COLONY
4TH MAIN ROAD, SANJAYA NAGAR
BANGALORE – 94.
8.
KALAMMA
SINCE DEAD BY HIS LRS
THIMME GOWDA
S/O LATE BILI THIMME GOWDA
AGED ABOUT 84 YEARS
R/AT NO.169, III ‘D’ MAIN,
4TH STREET, III BLOCK,
BASAVESHWARANAGAR
BANGALORE – 79.
…RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 20.04.2021
PASSED IN R.A.NO.62/2013 ON THE FILE OF THE V
ADDITIONAL AND SESSIONS JUDGE, BENGALURU RURAL
DISTRICT, DEVANAHALLI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 18.01.2013
PASSED ON I.A.NO.II IN O.S.NO.1894/2006 ON THE FILE OF
THE
SENIOR
CIVIL
JUDGE
AND
JMFC,
DEVANAHALLI
ALLOWING THE I.A.NO.II FILED UNDER ORDER 7 RULE 11 (a)
AND (d) OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:37119
RSA No. 2140 of 2021
This matter is listed for admission and I have heard the
learned counsel for the appellants.
This appeal is filed challenging the order passed by
the Trial Court in allowing the application filed under Order 7,
Rule 11 (a) and (d) of CPC and also confirmation of the order
passed by the Trial Court by the First Appellate Court.
The factual matrix of the case of the appellants
herein is that they have filed the suit for the relief of partition
for dividing all the suit schedule properties into 4 equal shares
between the defendants Nos.1, 6, 7 and 9 that is 1/4th each
and allot the 7/8th share out of the 1/4th share of the 6th
defendant to the plaintiff Nos.1 to 7 and also allot 5/6th share
out of 1/4th share of the 7th defendant to the plaintiff Nos.8 to
12 in all the suit schedule properties and put the plaintiff Nos.1
to 7 into the 7/8th share of the 6th defendant and further put
the plaintiff Nos.8 to 12 into their 5/6th share of 7th defendant
(1/4th share of 7th defendant) with metes and bounds.
While seeking the relief of partition, in the plaint,
particularly in Para No.2 contend that the plaintiffs and the
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defendant Nos.1 to 7 and 9th defendant are all members of the
joint undivided hindu family and they are all in joint possession
and enjoyment of all the suit schedule properties and they are
all jointly cultivating the said properties without effecting
partition between them so far. That the suit schedule properties
are all ancestral, coparcenary and joint hindu cultivated family
properties and all are in joint cultivation of the plaintiffs and the
defendants. It is also stated in Para No.8 of the plaint that the
defendant Nos.1 to 7 and late Chikkamudalappa have also
created an illegal sale deed in favour of one Smt. Umavathi S.
Shetty, W/o. M.V. Shivarama Shetty in respect of all the suit
schedule properties as per the alleged sale deed and got
mutated the entries in her name as per the alleged R.R.No.159
and again the said katha and pahani entries are said to be
made out into the name of the 8th defendant from the name of
the said Umavathi S. Shetty into the name of Malathi S. Shetty
in M.R.No.1/1987-88 and there was no necessity to create such
illegal documents by the 1st defendant in collusion with the
other defendants just to deceive the plaintiffs and to gain
wrongful gains as far as possible at the innocent and ignorant
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position of the other defendants and plaintiffs, in order to grab
the suit properties.
On receipt of plaint copy, the 8th defendant had filed
an application under Order 7, Rule 11(a) and (d) of CPC dated
19.10.2006 contending that the very plaint averments clearly
disclose that there was sale in the year 1986 and after the
death of the purchaser on 10.07.1987, the defendant No.8 has
succeeded to the said properties and he is possession and
enjoyment of the same. The defendant No.8 had raised a crop
loan from Vijaya Bank, Vidyanagar Branch on 17.11.1987 and
in respect of the said loan, the bank had filed O.S.No.360/2002
against the defendant No.8 herein. The judgment and decree
dated 05.07.2005 passed in the said suit was challenged by the
Bank in R.F.A.No.1337/2005 and the same is pending for
disposal. It is also contended that defendant No.8 has sold the
suit schedule item Nos.3 and 4 in favour of defendant No.10
under
the
absolute
sale
deeds dated
02.06.2006
and
19.06.2006 and accordingly, the revenue records have been
transferred in the name of defendant No.10. The revenue
records of the suit schedule item Nos.1 and 2 are standing in
the name of defendant No.8. The mother of the defendant No.8
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was in possession and enjoyment of the suit schedule item
Nos.1 to 4 from the date of purchase and after her demise, the
defendant No.8 is in possession and enjoyment of the said
properties. Now, the defendant No.10 is in possession and
enjoyment of the suit schedule item Nos.3 and 4. Hence, there
is no cause of action for this suit.
The plaintiff No.2 filed counter a
