MR.DAYANANDA.P vs SMT.VARIJA - 2024 Supreme(Online)(Kar) 36301

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2024 Supreme(Online)(Kar) 36301

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2024 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 319 OF 2014 (PAR)
BETWEEN:
MR. DAYANANDA.P S/O LATE P. MUNDAPPA AGED ABOUT 54 YEARS R/AT MUNDAPPA COMPOUND KULSHEKAR - 575 005 MANGALORE TALUK, DK.
…APPELLANT (BY SRI. Y RAJENDRA PRASAD SHETTY, ADVOCATE)
AND:
1. SMT. VARIJA AGED ABOUT 60 YEARS Digitally signed D/O LATE MAIRE HENGSU by R DEEPA KODIKAL KATTE - 575 006 Location: H IGH MANGALORE.
COURT OF KARNATAKA 2. SMT KRISHNAMMA D/O LATE SHANTHA SINCE DEAD BY LR'S
2(A) MR. GIRIDHAR MAROLI AGED ABOUT 66 YEARS S/O KRISHNAMMA R/AT CANARA APARTMENTS FLAT NO.202, G T ROAD HAMPANAKATTA, MANGALORE-575 001
2(B) MRS M. SHEELAVATHI AGED ABOUT 60 YEARS D/O KRISHNAMMA R/AT SHIVA NILAYA FIRST FLOOR, URVA MARIGUDI HOIGEBAIL, MANGALORE - 575 008
2(C) MRS. SAVITHA AGED ABOUT 37 YEARS D/O SAKKUBAI
2(D) MR. SHARATH KUMAR AGED ABOUT 35 YEARS S/O SAKKUBAI
2(C) AND 2(D) BOTH ARE R/AT PANCHAJANYA KUJATHBAIL, MARAKADA MANGALORE - 575 015.
2(E) MR. SANTHOSH KUMAR ADULT S/O SAKKUBAI R/AT D NO.6-9-293, MANJAPPA ACHARI COMPOUND, KANTHARAJA LANE MANNAGUDDA, MANGALORE - 575 003
3. MR RAGHUVEER AGED ABOUT 45 YEARS
4. MRS PREMALATHA AGED ABOUT 42 YEARS
5. MRS ROOPA AGED ABOUT 40 YEARS No.3, 4 AND 5 ARE CHILDREN OF LATE PALAKSHI ALL ARE R/AT AMMU MOILY COMPOUND KANTHARAJ LANE, MANNAGUDDA MANGALORE - 575 003
6. MR JAYAPRAKASH AGED ABOUT 61 YEARS
7. MRS. SUMITHRA AGED ABOUT 58 YEARS
8. MRS. BHANUMATHI AGED ABOUT 54 YEARS
9. MRS NALINI AGED ABOUT 46 YEARS
10. MR PRAVEEN AGED ABOUT 42 YEARS R6 TO R10 ARE THE CHILDREN OF LATE LEELA ALIAS SHARADA ALL ARE R/AT AMMU MOILY COMPOUND KANTHARAJ LANE, MANNAGUDDA MANGALORE - 575 003.
11. MRS. LEELA AGED ABOUT 58 YEARS D/O LATE KAMALA C/O KRISHNA DEVADIGA PRAKRITHI, ANAND NAGAR 2ND CROSS, KAVOOR POST MANGALORE - 575015.
12. MRS NALINI AGED ABOUT 52 YEARS D/O LATE BHAVANI BEHIND MUNSIFF COURT KARKALA, UDUPI DISTRICT - 574 104.
13. MRS SHASHIKALA AGED ABOUT 72 YEARS D/O LATE SEETHAMMA R/AT PARISHRAM NEAR SHIVABAGH 3RD CROSS, KADRI MANGALORE - 575 002
14. MRS KAMALA AGED ABOUT 67 YEARS SINCE DEAD BY LRS
14(A) SRI BHASKAR AGED ABOUT 44 YEARS
14(B) SMT VANITHA AGED ABOUT 40 YEARS
14(C) SRI KRISHNA POOJARY AGED ABOUT 38 YEARS ALL ARE R/AT SESI NIVAS KOPPAL HALEANGADI POST MANGALORE TALUK - 575 146
14(D) SRI ASHOK AGED ABOUT 49 YEARS R/AT KADAMBODI HOUSE HOSABETTU, SURATHKAL MANGALORE TALUK - 575 014
14(E) SMT SUGANDHI AGED ABOUT 42 YEARS R/AT D NO.1/23
1ST BLOCK, KATIPALLA PORT NEAR NITHYANANDA BAJANA MANGALORE - 575 030
15. MRS VIMALA AGED ABOUT 62 YEARS
16. MRS BABY AGED ABOUT 60 YEARS
17. MR NAGESH AGED ABOUT 55 YEARS SINCE DECEASED HIS LR'S
17(A) SMT. INDIRA AGED ABOUT 58 YEARS W/O LATE NAGESH R/AT No.1-45A, 1ST BLOCK KATIPALLA, MANGALURU - 575 030 DK DISTRICT.
17(B) MR. RAMACHANDRA AGED ABOUT 42 YEARS S/O LATE NAGESH
17(C) MR. MACHENDRA AGED ABOUT 41 YEARS S/O LATE NAGESH
17(D) MR. UDAYA KUMAR AGED ABOUT 39 YEARS S/O LATE NAGESH
17(E) MS. SHOBHA AGED ABOUT 37 YEARS D/O LATE NAGESH
17(F) MS. SHARADA AGED ABOUT 34 YEARS D/O LATE NAGESH
15, 16, 17(B-F) ARE R/AT KOPPAL HOUSE, HALEANGADI POST MANGALURU TALUK - 575 146
18. MR CHANDRASHEKAR AGED ABOUT 46 YEARS
19. MRS SAROJINI AGED ABOUT 67 YEARS
20. MRS CHANDRAKALA (CHANDRAVATHI)
AGED ABOUT 50 YEARS
21. MRS VIJAYALAKSHMI AGED ABOUT 45 YEARS
22. MRS HEMALATHA AGED ABOUT 62 YEARS
23. MRS JAYANTHI AGED ABOUT 57 YEARS R15 TO R23 ARE THE CHILDREN OF LATE MUNDAPPA ALL ARE R/AT C/O PURUSHOTHAM DEVADIGA D.A.R. NO.56, POLICE LANE MANGALORE- 575001
24. MRS. SAROJINI AGED ABOUT 67 YEARS
25. MR MANESH AGED ABOUT 36 YEARS R24 IS THE WIFE AND R25 IS THE SON OF LATE VISHWANATHA BOTH ARE R/AT MAROLI SHAMBAVI NILAYA NEAR K K STEEL, JEPPU MAHAKALIPADPU, MANGALORE - 575 002.
…RESPONDENTS (BY SRI. ANANDARAMA K, ADVOCATE FOR R1, R2(A-E)
R3 TO R13, R14(A-E), R15 TO R17(A TO F), R19, R20 TO R25 ARE SERVED V/O DATED 18.02.2019 NOTICE TO R18 IS HELD SUFFICIENT)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 21.10.2013 PASSED IN R.A.NO. 45/2011 ON THE FILE OF THE COURT OF THE II ADDITIONAL SENIOR CIVIL JUDGE MANGALORE, D.K. DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 13.06.2011 PASSED IN O.S.NO.631/2008 ON THE FILE OF THE COURT OF PRINCIPAL CIVIL JUDGE & J.M.F.C., AT MANGALORE, D.K.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

This Regular second appeal is filed by the appellants challenging the judgment and decree dated 21.10.2013 passed in R.A.No.45/2011 passed by the II Additional Senior Civil Judge, Mangalore, D.K., confirming the judgment and preliminary decree dated 13.06.2011 passed in O.S.No.631/2008 by the Principal Civil Judge and JMFC, Mangalore, D.K.

2. The parties are referred to as per their ranking before the trial Court. The appellant is defendant No.1, respondent Nos.1 to 17 are plaintiffs, respondent Nos.18 to 25 are other defendants.

3. The brief facts leading rise to filing of this appeal are as under:

The plaintiffs filed a suit for partition and separate possession against the defendants in respect of suit schedule property. It is the case of the plaintiffs, that plaintiffs and defendants are all successors of the 6 sisters namely, Myre(Ramu), Somu, Shantha, Dasamma, Seethamma and Devaki (Deyi). The said 6 sisters had joint and equal shares as moolgeni tenants of immovable property in the suit schedule property. The said 6 sisters had died intestate leaving behind their successors. The plaintiff No.1 is the successor of late Myre. Plaintiff Nos.2 to 10 are the successors of late Shantha. Plaintiff No.11 is the successor of late Dasamma. Plaintiff Nos.12 and 13 are the successors of late Seethamma. Plaintiff Nos.14 to 17 are the successors of late Devaki. The defendants are successors of late Somu. The plaintiffs demanded for partition and separate possession of the suit schedule property, but the defendants refused to effect the partition and cause of action arose for the plaintiffs to file a suit for partition and separate possession. Hence, filed this suit.

4. Though summons was duly served on defendant Nos.2 to 9, but they remained absent. Hence, they placed exparte.

5. Defendant No.1 filed the written statement admitting the contents of the plaint except denying that plaintiff No.1 is the daughter of Myre (Ramu). Hence, plaintiff No.1 is not entitled for any share in the suit schedule property and prayed to dismiss the suit against the plaintiff No.1.

6. The Trial Court, on the basis of the above said pleadings, framed the following issues:

1. Whether the plaintiff No.1 prove that she is the legal heir of Maire Hengsu alias Ramu and she is entitled for the share as prayed in the plaint?

2. Whether the plaintiffs prove that they are entitled for the share as claimed in the plaint?

3. Whether the defendant No.1 proves that he is the owner of the plaint schedule property as per the Will dated 18.08.1988 executed by said Ramu?

4. Whether the defendant No.1 proves that he has spent huge amount of Rs.3,00,000/- for the improvements in the plaint schedule property?

5. Whether the defendant No.1 proves that he and late Mundappa have perfected the title over the property by way of adverse possession?

6. Whether the Court fee paid is not proper?

7. Whether the plaintiff is entitled for the relief of accounts as prayed in the plaint?

8. Whether the plaintiff is entitled for the relief as prayed in the plaint?

9. What order or decree?

7. The plaintiffs in order to prove their case, plaintiff No.13 was examined as PW.1 and got marked 8 documents as Exs.P1 to 8. In rebuttal, defendant No.1 was examined as DW.1 and got marked 8 documents as Exs.D1 to 8. The trial Court after recording the evidence and hearing the arguments of learned counsel for the parties and on the assessment of oral and documentary evidence answered issue Nos.1, 2 and 6 to 8 in the affirmative, issue Nos.3 to 5 in the negative and issue No.9 as per the final order. The suit of the plaintiffs was decreed with costs. It is ordered and declared that the plaintiffs are jointly entitled for 5/6th share in the suit schedule property and directed the defendants to render accounts and to pay the share of the plaintiffs in the income arising out of the suit schedule property from the date of suit till the actual division.

8. Defendant No.1 aggrieved by the judgment and decree passed

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