In the High Court of Karnataka at Bangalore

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Dated this the 13 th day of February, 2013

PRESENT

THE HON’BLE MR JUSTICE D V SHYLENDRA KUMAR AND THE HON’BLE MR JUSTICE B SREENIVASE GOWDA

Regular First Appeal Nos. 189, 298 & 636 of 2002

IN RFA NO.189 OF 2002

BETWEEN:

B R BANUMATHI (MAIDEN NAME) SMT BANU JAYARAM W/O LATE JAYARAM D/O B M RAMASWAMY, HINDU, MAJOR AT NO.970, II ‘B’ CROSS IDEAL HOMES TOWNSHIP RAJARAJESHWARINAGAR BANGALORE – 560 098 … APPELLANT

[By Sri S Subhash, Adv.]

AND:

1. SHRI B M APPASWAMY SINCE DECEASED REP. BY HIS LRs

(a) SHRI B K RAVICHANDRA S/O SHRI B M KRISHNAMURTHY HINDU, MAJOR

(b) SHRI B K MANMOHAN S/O SHRI B M KRISHNAMURTHY HINDU, MAJOR 2

R1(a) & R1(b) ARE R/AT NO.1, KRISHNAMURTHYNAGAR BANGALORE – 560 038

2. SMT B M AKKAYYAMMA W/O SHRI T S BACHI REDDY HINDU, MAJOR R/AT THIMMASANDRA VILLAGE CHINTAMANI TALUK

3. SMT B M SARASWATHAMMA W/O SHRI C NARAYANASWAMY SINCE DECEASED REP. BY HER LRs

(a) PRABHAKHAR C N S/O C NARAYANASWAMY AGED ABOUT 61 YEARS NO.71, MATHRUCHAYA, II FLOOR, I MAIN KGS LAYOUT, VIJAYANAGAR BANGALORE – 560 040

(b) RAMAKRISHNA S/O C NARAYANASWAMY AGED ABOUT 58 YEARS NO.58, PAI LAYOUT VIDYANAGAR, OLD MADRAS ROAD BANGALORE – 560 016

(d) SMT MANGALA W/O C N L MURTHY AGED ABOUT 33 YEARS

(e) MS KV C PRAKRUTHI D/O C N L MURTHY AGED ABOUT 21 YEARS

R3(d) & R3(e) ARE R/AT NO.5, CHANDRA BUILDING 17 TH CROSS, 6 TH PHASE 28 TH MAIN, J P NAGAR BANGALORE – 560 078

(f) SMT GAYATRI SURENDRA W/O SRI SURENDRA AGED ABOUT 52 YEARS NO.38, JOGUPALYA G STREET, ULSOOR BANGALORE – 560 008

4. SHRI B M KRISNAMURTHY SINCE DECEASED REP. BY HIS LRs

(a) SMT SHARADAMMA W/O LATE B M KRISHNAMURTHY SINCE DECEASED REP. BY HER LRs i.e. R4(b) & R4(c) WHO ARE ALREADY ON RECORD

(b) SHRI B K RAVICHANDRA S/O SHRI B M KRISHNAMURTHY HINDU, MAJOR

R4(b) & R4(c) ARE R/AT NO.1, KRISHNAMURTHY NAGAR OLD MADRAS ROAD BANGALORE – 560 038

(d) SMT B K RENUKA W/O SHRI VIKRAM REDDY HINDU, MAJOR R/AT NO.4, CONTONMENT ROAD BANGALORE – 560 001

(e) SMT B K SHEELA W/O SHRI SANTOSH HINDU, MAJOR

R/AT NO.409, IV BLOCK 19 TH ‘G’ MAIN, RAJAJINAGAR BANGALORE – 560 006

5. SHRI B M NARAYANASWAMY S/O SHRI B M MUNISWAMAPPA SINCE DECEASED REP. BY HIS LR

(a) SRI B N JAYADEVA S/O B M NARAYANASWAMY AGED ABOUT 58 YEARS NO.161, 3 RD CROSS 10 TH MAIN, RMV EXTENSION BANGALORE – 560 080

6. SMT B M VENKATAMMA SINCE DECEASED REP. BY HER LRs

(a) SUSHEELAMMA W/O S M REDDY SINCE DECEASED REP. BY HER LR

(1) SMT MAMATHA W/O S M REDDY AGED ABOUT 40 YEARS NO.1602, 7 TH BLOCK LNT SOUTH STREET ARAKERE, MICO LAYOUT BANGALORE – 560 071

(b) INDIRAMMA W/O THIMMA REDDY R6(a)(1) & R6(b) ARE R/AT NO.65/10, 36 TH ‘A’ CROSS 9TH BLOCK, JAYANAGAR BANGALORE – 560 069

(d) SRI RAVINDRA P S/O SRI H N PAPAIAH REDDY HINDU, MAJOR REP. BY GPA HOLDER H N PAPAIAH REDDY

(e) SRI H P JAYADEV S/O SRI H N PAPAIAH REDDY HINDU MAJOR

(f) SMT SADGUNA CHANDRAKALA D/O SRI H N PAPAIAH REDDY HINDU MAJOR

R6(c) TO R6(f) ARE R/AT NO.1078, 12 TH ‘A’ CROSS MALLESHWARAM BANGALORE - 560 003

(g) SMT SAROJAMMA W/O MUNIVENKATA REDDY HINDU, MAJOR R/AT NO.26, RAMAIAH LAYOUT MATHIKERE BANGALORE

(h) SMT RAJALAKSHMI A W/O SRI S M REDDY HINDU, MAJOR R/AT 1866, SOUTH END ‘C’ ROAD 9TH BLOCK EAST, JAYANAGAR BANGALORE – 560 069

7. SMT SHARADAMMA W/O B M VENKATASWAMAPPA SINCE DECEASED REP. BY HER LRs

(a) SMT JAYAMMA D/O B M VENKATASWAMAPPA AGED ABOUT 69 YEARS R/AT NO. 205, 4 TH BLOCK 7TH MAIN, JAYANAGAR BANGALORE – 560 011

(b) B V SAROJAMMA D/O B M VENKATASWAMAPPA AGED ABOUT 66 YEARS R/AT NO.134, 10 TH CROSS 1ST STAGE, INDIRANAGAR BANGALORE – 560 038

8. SRI B M APPA REDDY W/O SRI B M MUNISWAMAPPA HINDU, MAJOR R/AT BYAPPANAHALLI BANGALORE SOUTH TALUK

9. SRI B R MOHANRAJ S/O K C KANNA RAO BENNIGANAHALLI BANGALORE SOUTH TALUK SINCE DEAD REP. BY HIS LRs

(a) B M UDAY S/O LATE B R MOHAN RAJ HINDU, MAJOR

(b) B M VINAY S/O LATE B R MOHAN RAJ HINDU, MAJOR

BOTH R9(a) & R9(b) ARE R/AT NO.507, 15 TH CROSS INDIRANAGAR II STAGE BANGALORE

10. SRI VENKATESHA GOWDA FATHER'S NAME NOT KNOWN TO THE PETITIONER HINDU, MAJOR BANNIGANAHALLI BANGALORE SOUTH TALUK

11. SRI R KUPPUSWAMY HINDU, MAJOR STEEL STOCK YARD HINDUSTAN STEEL WORKS CONSTRUCTION LTD., BENNIGANAHALLI BANGALORE SOUTH TALUK

12. RAMACHANDRA SETTY HINDU, MAJOR M/S BHADRA MINERALS CO. OLD MADRAS ROAD BENNIGANAHALLI BANGALORE SOUTH TALUK

13. SRI S D PATEL S/O DAYABHAI PATEL HINDU, MAJOR SHARAVATHI TUBES CORPORATION BENNIGANAHALLI BANGALORE SOUTH TALUK

14. SRI K K LOGANATHAN S/O SRI K C KANNA RAO SINCE DEAD BY LRs

(a) K L SARASWATHI W/O K K LOGANATHAN HINDU, MAJOR

(b) K L JAGADHEESH BABU S/O K K LOGANATHAN HINDU, MAJOR

(d) K L RAMESH BABU S/O K K LOGANATHAN HINDU, MAJOR

(e) CHANDRAKALA W/O P KAMESH RAO HINDU, MAJOR

R14(a) TO R14(e) ARE R/AT NO.339, DEVASANDRA EXTENSION, K R PURAM BANGALORE – 560 036

15. SMT B A INDIRAMMA D/O LATE B M APPA REDDY AGED ABOUT 72 YEARS

16. SMT SUDARSINI N GRAND D/O B M APPA REDDY AGED ABOUT 52 YEARS

17. SRI MANJUNATH GRAND S/O B M APPA REDDY AGED ABOUT 35 YEARS

R15 TO R17 ARE R/AT NO.13, II CROSS SHANKARPURAM BANGALORE – 560 004 … RESPONDENTS

[By Sri G Balakrishna Shastry, Adv. for R2 & R3(a) to R3(f); Sri K P Asokumar, Adv. for R1(a), R1(b), R4(b), R4(c), R4(d) & R4(e); Sri Shankar S Bhat, Adv. for R2; Sri Bhaskar Reddy S & Sri Mallikarjuna Reddy K, Advs. for R3(a) (NOC); Sri S B Krishna, Adv. for R3(a); Sri A S Girish & Sri Pradeep Naik, Advs. for R3(d) & R3(e); Sri Nagendra Shetty, Adv. for R3(f); Sri K P Sathyanarayana, Adv. for R5(a); M/s Prime Law Associates, Advs. for R6(a)(1); Sri B R Srinivasa Gowda, Adv. for R6(b), R6(g) & R6(h); Sri Nagendra Shetty, Adv. for R6(d) & R6(f); M/s Lawyers Inc., Advs. took notice for R7(a) v/o dated 6.8.2012 (vakalath not filed); Sri B A Reddeppa, Adv. for R7(b), R15 to R17; Sri G A Viswanatha Reddy, Adv., who was directed to take notice for R9(a) & R9(b) v/o dated 1.12.2004 (vakalath not filed); R3(b), R3(c), R6(e), R6(h) & R14(d) are served but remained un-represented; R4(a) is dead and R4(b) to R4(e) are treated as LRs of deceased R4(a) v/o dated 6.8.12; R6(c), R8, R12, R14(a), R14(b), R14(c) & R14(e) – Notice dispensed with v/o dated 29.1.2007; Notice to R10, R11 & R13 is dispensed with v/o dated 24.3.2004]

THIS APPEAL IS FILED UNDER SECTION 96 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 22.12.2001 PASSED IN O.S.NO.8842/80 ON THE FILE OF

THE VII ADDL. CITY CIVIL JUDGE, BANGALORE, DECREEING THE SUIT FOR DECLARATION, PARTITION, SEPARATE POSSESSION AND PERPETUAL INJUNCTION AND ETC.,

IN RFA NO.298 OF 2002

BETWEEN:

1. B M APPASWAMY BY LRs

(a) B K RAVICHANDRA AGED ABOUT 39 YEARS

(b) B K MANMOHAN AGED ABOUT 36 YEARS

R1(a) & R1(b) ARE SONS OF LATE B M KRISHNAMURTHY R/AT NO.1, KRISHNAMURTHY NAGAR BANGALORE – 560 038

2. B M KRISHNAMURTHY BY LRs

(a) SMT SHARADA KRISHNAMURTHY W/O LATE KRISHNAMURTHY SINCE DEAD REP. BY A2(b) TO A2(e)

(b) SRI B K RAVICHANDRA AGED ABOUT 39 YEARS

A2(b) & A2(c) ARE R/AT NO.1, KRISHNAMURTHY NAGAR BANGALORE - 560 038

(d) SMT B K RENUKA W/O VIKRAM REDDY AGED ABOUT 42 YEARS R/AT NO. 4 GRANT ROAD BANGALORE – 560 001 G.P.A. HOLDER B K RAVI CHANDRA

(e) SMT B K SHEELA W/O SANTOSH AGED ABOUT 40 YEARS R/AT NO.409, ‘N’ BLOCK 9TH ‘E’ MAIN, RAJAJINAGAR BANGALORE – 560 010 G.P.A. HOLDER B K MANMOHAN … APPELLANTS

[By Sri K P Asokumar, Adv.]

AND:

1. SMT B M AKKAYAMMA W/O T.S. BACHA REDDY AGED ABOUT 72 YEARS THIMMASANDRA VILLAGE CHINTAMANI TALUK

2. SMT B M SARASWATHAMMA W/O C NARAYANASWAMY SINCE DEAD REP. BY

(a) SRI C N PRABHAKAR S/O C NARAYANASWAMY AGED ABOUT 61 YEARS R/AT NO.71, MATHRU CHAYA 2ND FLOOR, 1 ST PHASE K G S LAYOUT BANGALORE – 560 040

(b) SRI N RAMAKRISHNA S/O C NARAYANASWAMY AGED ABOUT 58 YEARS R/AT NO.151, PAI LAYOUT OLD MADRAS ROAD BANGALORE – 560 016

(d) SMT MANGALA W/O C N L MURTHY AGED ABOUT 33 YEARS

(e) SMT K V C PRAKRUTI D/O C N L MURTHY AGED ABOUT 21 YEARS

R2(d) & R2(e) ARE R/AT NO.5, CHANDRAPPA BUILDING 17 TH CROSS, 6 TH PHASE 29 TH MAIN, J P NAGAR BANGALORE – 560 078

(f) SMT GAYATHRI SURENDRA W/O SURENDRA AGED ABOUT 52 YEARS R/AT NO.38, JOGUPALYA ‘G’ STREET, ULSOOR BANGALORE – 560 008

3. B M NARAYANASWAMY S/O B.M. MUNISWAMAPPA SINCE DEAD REP. BY

(a) SRI B N JAYADEVA AGED ABOUT 58 YEARS R/AT NO.161, 3 RD CROSS RMV EXTENSION SADASHIVANAGAR BANGALORE – 560 080

4. SMT B M VENKATAMMA W/O APPA REDDY SINCE DEAD REP. BY LRs

5(a) SMT SUSHEELAMMA W/O S.M. REDDY SINCE DEAD REP. BY LRs

(a)(1) SMT MAMTHA D/O S M REDDY AGED ABOUT 40 YEARS R/AT NO.1602, 7 TH BLOCK LNT SOUTH CITY

AREKERE, MICO LAYOUT BANGALORE – 560 071

(b) SMT INDIRAMMA W/O THIMMA REDDY MAJOR R/AT NO. 65/10, 36 TH ‘A’ CROSS 9TH BLOCK, JAYANAGAR BANGALORE – 560 069

(d) SRI RAVINDRA P S/O H.N. PAPAYYA REDDY AGED ABOUT 36 YEARS REP. BY GPA HOLDER H N PAPAYYA REDDY

(e) SRI H P JAYADEVA S/O H.N PAPAYYA REDDY AGED ABOUT 34 YEARS

(f) SMT SADGUNA CHANDRAKALA D/O PAPAYYA REDDY AGED ABOUT 29 YEARS

R5(c) TO R5(f) ARE R/AT NO. 1079, 12 TH ‘A’ CROSS VYALIKAVAL, MALLESWARAM BANGALORE – 560 003

(g) SMT SAROJAMMA W/O MUNIVENKATA REDDY MAJOR R/AT NO. 26, RAMAIAH LAYOUT MATHIKERE, BANGALORE

(h) SMT RAJALAKSHMI A W/O S.M. REDDY MAJOR, R/O NO.1866 SOUTH END ‘C’ ROAD 9TH BLOCK ‘E’, JAYANAGAR BANGALORE – 560 069

6. SMT SHARADAMMA W/O B.M. VENKATASWAMAPPA SINCE DEAD REP. BY LRs

(a) SMT B V JAYAMMA W/O M VENKATASWAMY AGED ABOUT 69 YEARS R/AT NO.205, 4 TH BLOCK 7TH MAIN, JAYANAGAR BANGALORE – 560 011

(b) SMT B V SAROJAMMA D/O LATE B M VENKATESWAMAPPA AGED ABOUT 66 YEARS R/AT NO.134, 10 TH CROSS I STAGE, INDIRA NAGAR BANGALORE – 560 038

7. SRI B M APPA REDDY S/O B M MUNISWAMAPPA MAJOR BYAPPANAHALLI BANGALORE SOUTH TALUK

8. SMT R PADMAVATHI W/O K.C. KANNA RAO AGED ABOUT 29 YEARS R/O BENNIGANAHALLI BANGALORE SOUTH TALUK SINCE DEAD BY LRs

9. SRI B R MOHAN RAJ S/O K.C. KANNA RAO SINCE DEAD BY LRs

(a) SRI B M UDAYA S/O LATE B.R. MOHAN RAJ AGED ABOUT 21 YEARS

(b) SRI B M VINAY S/O LATE B.R. MOHAN RAJ AGED ABOUT 19 YEARS

R9(a) & R9 (b) ARE R/AT NO. 507, 15 TH CROSS

INDIRANAGAR II STAGE BANGALORE

10. B R BHANUMATHI D/O K.C. KANNA RAO MAJOR R/O BENNIGANAHALLI BANGALORE SOUTH TALUK BANGALORE

11. SRI VENKATESHA GOWDA FATHER’S NAME NOT KNOWN MAJOR BENNIGANAHALLI BANGALORE SOUTH TALUK

12. SRI R KUPPUSWAMY MAJOR STEEL STOCK YARD HINDUSTAN STEEL WORKS CONSTRUCTION LTD., BENNIGANAHALLI BANGALORE SOUTH TALUK

13. SRI RAMACHANDRA SETTY M/S BHADRA MINERALS COMPANY OLD MADRAS ROAD BENNIGANAHALLI BANGALORE SOUTH TALUK

14. SRI S D PATEL S/O DAYABHAI PATEL MAJOR SHARAVATHI TUBES CORPORATION BENNIGANAHALLI BANGALORE SOUTH TALUK

15. SRI K K LOGANATHAN S/O K.C. KANNA RAO SINCE DEAD REP. BY LRs

(a) SMT K L SARASWATHI W/O K K LOGANATHAN AGED ABOUT 58 YEARS

(b) SRI K I JAGADEESH BABU S/O K K LOGANATHAN AGED ABOUT 40 YEARS

(d) SRI K L RAMESH BABU S/O K K LOGANATHAN AGED ABOUT 36 YEARS

(e) SMT CHANDRAKALA W/O P KAMALESH RAO AGED ABOUT 34 YEARS

R15(a) TO R15(e) ARE R/AT NO. 339, DEVASANDRA EXTENSION KRISHNAGARAJAPURAM BANGALORE – 560 036

16. SMT B A INDIRAMMA D/O LATE B M APPA REDDY AGED ABOUT 72 YEARS

17. SMT SUDARSINI V GRAND D/O LATE B M APPA REDDY AGED ABOUT 52 YEARS

18. SRI MANJUNATH GRAND S/O LATE B M APPA REDDY AGED ABOUT 35 YEARS

R16 TO R18 ARE R/AT NO.13, 2 ND CROSS SHANKARAPURAM BANGALORE – 560 004 … RESPONDENTS

[By Sri G Balakrishna Shastry, Adv. for R1 & R2(a) to R2(f); Sri Nagendra Shetty, Adv. for R1; Sri Bhaskar Reddy S & Sri Mallikarjuna Reddy K, Advs. for R2(a) (NOC); Sri S B Krishna, Adv. for R2(a); Sri Shankar S Bhat, Adv. for R2(b), R2(c) & R2(f); Sri K P Sathyanarayana, Adv. for R3(a); R4 is dead as per cause title;

M/s Prime Law Associates, Advs. for R5(a)(1); Sri R Bhaskar & Sri H Y Nagaraja, Advs. for R5(b), R5(g) & R5(h); M/s Lawyers Inc., Advs. for R6(a) (NOC); Sri B A Reddeppa, Adv. for R6(b), R16 to R18; Sri S Subhash, Adv. for R10; Sri M S Purushothama Rao, Adv. undertook to file vakalath for R11 v/o 26.02.2010 in connected RFA 189/02 (Vakalath not filed); R2(d) & R2(e) are represented in connected RFA 189/02; R5(c), R5(d), R7, R13, R14, R15(c), R15(d) & R15(e) are dispensed with v/o dated 15.12.2009 and 18.02.2010; R5(e), R5(f), R9(a), R9(b), R12, R15(a), R15(b) & R15(d) are served but remained unrepresented; R8 is dead as per cause title]

THIS APPEAL IS FILED UNDER SECTION 41 RULE 1 & 2 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 22.12.2001 PASSED IN O.S.NO.8842/80 ON THE FILE OF THE VII ADDL. CITY CIVIL JUDGE, BANGALORE, DECREEING THE SUIT FOR DECLARATION, PARTITION, SEPARATE POSSESSION AND PERPETUAL INJUNCTION AND ETC.,

IN RFA NO.636 OF 2002

BETWEEN:

1. B M UDAY S/O LATE B R MOHANRAJ, MAJOR,

2. B M VINAY S/O LATE B R MOHANRAJ, MAJOR,

BOTH ARE R/AT NO.496, I CROSS, TAVAREKERE, BANGALORE. … APPELLANTS

[By Sri M Arun Ponappa, Adv.]

AND:

1. B M APPASWAMY SINCE DECEASED REP. BY HIS LRs

(a) SHRI B K RAVICHANDRA S/O SHRI B M KRISHNAMURTHY AGED ABOUT 40 YEARS

(b) SHRI B K MANAMOHAN S/O SHRI B M KRISHNAMURTHY MAJOR

R1(a) & R1(b) ARE R/AT NO.1, KRISHNAMURTHYNAGAR BANGALORE – 560 038

2. SMT B M AKKAYYAMMA W/O SHRI T S BACHI REDDY MAJOR R/AT THIMMASANDRA VILLAGE CHINTAMANI TALUK

3. SMT B M SARASWATHAMMA W/O SHRI C NARAYANASWAMY SINCE DECEASED REP. BY HER LRs

(a) PRABHAKHAR C N S/O C NARAYANASWAMY AGED ABOUT 61 YEARS NO.71, MATHRUCHAYA, II FLOOR, I MAIN KGS LAYOUT, VIJAYANAGAR BANGALORE – 560 040

(b) RAMAKRISHNA S/O C NARAYANASWAMY AGED ABOUT 58 YEARS NO.58, PAI LAYOUT VIDYANAGAR, OLD MADRAS ROAD BANGALORE – 560 016

(d) SMT MANGALA W/O C N L MURTHY AGED ABOUT 33 YEARS

(e) MS KV C PRAKRUTHI D/O C N L MURTHY AGED ABOUT 21 YEARS

R3(d) & R3(e) ARE R/AT NO.5, CHANDRA BUILDING 17 TH CROSS, 6 TH PHASE 28 TH MAIN, J P NAGAR BANGALORE – 560 078

(f) SMT GAYATRI SURENDRA W/O SRI SURENDRA AGED ABOUT 52 YEARS NO.38, JOGUPALYA G STREET, ULSOOR BANGALORE – 560 008

4. SHRI B M KRISHNAMURTHY SINCE DECEASED REP. BY HIS LRs

(a) SMT SHARADAMMA W/O LATE B M KRISHNAMURTHY SINCE DECEASED REP. BY HER LRs i.e. R4(b) & R4(c) WHO ARE ALREADY ON RECORD

(b) SHRI B K RAVICHANDRA S/O SHRI B M KRISHNAMURTHY MAJOR

R4(b) & R4(c) ARE R/AT NO.1, KRISHNAMURTHY NAGAR BYAPPANAHALLI BANGALORE

(d) SMT B K RENUKA W/O SHRI VIKRAM REDDY MAJOR R/AT NO.4, GRANT ROAD BANGALORE – 560 001

(e) SMT B K SHEELA W/O SHRI SANTOSH MAJOR R/AT NO.409, N BLOCK 19 TH ‘E’ MAIN, RAJAJINAGAR BANGALORE

5. SHRI B M NARAYANASWAMY S/O SHRI B M MUNISWAMAPPA SINCE DECEASED REP. BY HIS LR

(a) SRI B N JAYADEVA S/O B M NARAYANASWAMY AGED ABOUT 58 YEARS NO.161, 3 RD CROSS 10 TH MAIN, RMV EXTENSION BANGALORE – 560 080

6. SMT B M VENKATAMMA W/O APPA REDDY SINCE DEAD REP. BY HER LRs

(a) SUSHEELAMMA W/O S M REDDY SINCE DECEASED REP. BY HER LR

(1) SMT MAMATHA W/O S M REDDY AGED ABOUT 40 YEARS NO.1602, 7 TH BLOCK SOUTH STREET AREKERE, MICO LAYOUT BANGALORE – 560 071

(b) INDIRAMMA W/O THIMMA REDDY R/AT NO.65/10, 36 TH ‘A’ CROSS 9TH BLOCK, JAYANAGAR BANGALORE – 560 069

(d) SRI RAVINDRA P S/O SRI H N PAPAIAH REDDY MAJOR REP. BY GPA HOLDER H N PAPAIAH REDDY

(e) SRI H P JAYADEVA S/O SRI H N PAPAIAH REDDY AGED ABOUT 46 YEARS

(f) SMT SADGUNA CHANDRAKALA D/O SRI PAPAIAH REDDY MAJOR

R6(c) TO R6(f) ARE R/AT NO.1078, 12 TH ‘A’ CROSS VYALIKAVAL MALLESHWARAM BANGALORE - 560 003

(g) SMT SAROJAMMA W/O MUNIVENKATA REDDY MAJOR R/AT NO.26, RAMAIAH LAYOUT MATHIKERE BANGALORE

(h) SMT RAJALAKSHMI A W/O SRI S M REDDY HINDU, MAJOR R/AT 1866, SOUTH END ‘C’ ROAD 9TH BLOCK (E), JAYANAGAR BANGALORE – 560 069

7. SMT SHARADAMMA W/O B M VENKATASWAMAPPA SINCE DECEASED REP. BY HER LRs

(a) SMT B JAYAMMA

(b) B V SAROJAMMA

D/O B M VENKATASWAMAPPA R/AT NO.134, 10 TH CROSS 1ST STAGE, INDIRANAGAR BANGALORE – 560 038

8. SRI B M APPA REDDY S/O SRI B M MUNISWAMAPPA SINCE DEAD BY HIS LRs

(a) SMT B A INDIRAMMA D/O LATE B M APPA REDDY AGED ABOUT 72 YEARS

(b) SMT SUDARSINI N G/D/O LATE B M APPA REDDY AGED ABOUT 52 YEARS

R8(a) TO R8(c) ARE R/AT NO.13, 2 ND CROSS SHANKARAPURAM BANGALORE – 560 004

9. R PADMAVATHI W/O K C KANNA RAO MAJOR R/AT BENNIGANAHALLI BANGALORE

10. B R BHANUMATHI D/O K C KANNA RAO MAJOR R/AT BENNIGANAHALLI BANGALORE SOUTH TALUK

11. SRI VENKATESHA GOWDA MAJOR BANNIGANAHALLI BANGALORE SOUTH TALUK

12. SRI R KUPPASWAMY MAJOR STEEL STOCK YARD HINDUSTAN STEEL WORKS CONSTRUCTION LTD., BENNIGANAHALLI BANGALORE

13. RAMACHANDRA SETTY M/S BHADRA MINERALS CO. OLD MADRAS ROAD BENNIGANAHALLI BANGALORE SOUTH TALUK

14. SRI S D PATEL S/O DAYABHAI PATEL MAJOR SHARAVATHI TUBES CORPORATION BENNIGANAHALLI BANGALORE

15. SRI K K LOGANATHAN S/O SRI K C KANNA RAO SINCE DEAD BY LRs

(a) K L SARASWATHI W/O K K LOGANATHAN MAJOR

(b) K L JAGADHEESH BABU S/O K K LOGANATHAN MAJOR

(d) K L RAMESH BABU S/O K K LOGANATHAN MAJOR

(e) CHANDRAKALA W/O P KAMESH RAO MAJOR

R15(a) TO R15(e) ARE R/AT NO.339, DEVASANDRA EXTENSION, K R PURAM BANGALORE – 560 036

16. SMT B A INDIRAMMA D/O LATE B M APPA REDDY AGED ABOUT 72 YEARS

17. SMT SUDARSINI N G/D/O B M APPA REDDY AGED ABOUT 52 YEARS

18. M MANJUNATH G/S/O B M APPA REDDY AGED ABOUT 52 YEARS

R16 TO R18 ARE R/AT NO.13, II CROSS SHANKARPURAM BANGALORE – 560 004 … RESPONDENTS

[By Sri G Balakrishna Shastry, Adv. for R2 & R3(a) to R3(f); Sri K P Asokumar, Adv. for R1(a), R1(b), R4(b) to R4(e); Sri V N Sathyanarayana, Adv. for R1(a), R1(b) & R4(a) to R4(e); Sri Nagendra Shetty, Adv. for R2; Sri M R Rajagopal, Adv. for R2, R6(b), R6(g) & R6(h); Sri S B Krishna, Adv. for R3(a) (NOC not obtained); Sri Bhaskar Reddy S & Sri Mallikarjuna Reddy K, Advs. for R3(a) (NOC); M/s Prime Law Associates, Advs. for R6(a)(1); Sri B A Reddeppa, Adv. for R7(b), R8(a) to R8(c), R16, R17 & R18; R4(a) is dead : R4(b) to R4(e) are treated as LRs of R4(a) v/o dated 06.08.2012; R5(a) is represented in connected RFA 189/02; R6(b), R15(a) to R15(c) & R15(e) – service held sufficient; R6(c) – Notice dispensed with v/o dated 29.01.2007 in connected RFA 189/02; R6(d), R6(e), R12 & R15(d) are served but remained unrepresented; R6(f), R9 to R11 – unserved (Memo/ack., not filed for having served on

counsel appearing in connected appeals); R7(a) is represented in connected RFA 298/02; R13 – notice dispensed with v/o dated 24.3.2004 in connected RFA 189/02; R14 – notice dispensed with v/o dated 15.12.2009 and 18.02.2010 in connected RFA 298/02]

THIS APPEAL IS FILED UNDER SECTION 96 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 22.12.2001 PASSED IN O.S.NO.8842/1980 ON THE FILE OF THE VII ADDL. CITY CIVIL JUDGE, BANGALORE, DECREEING THE SUIT FOR DECLARATION, PARTITION, SEPARATE POSSESSION AND PERPETUAL INJUNCTION AND ETC.,

THESE APPEALS COMING ON FOR HEARING, THIS DAY, SHYLENDRA KUMAR J., DELIVERED THE FOLLOWING:

J U D G M E N T

These three appeals preferred under Section 96 of the Code of Civil Procedure, 1908, are directed against the judgment and decree dated 22-12-2001 passed in OS

No 8842 of 1980, on the file of court of VII Addl City Civil

Judge, Bangalore.

2. The suit by as many as three plaintiffs impleading persons who the plaintiffs admitted as members of the family as defendants 1 to 5 and defendants 6 to 8, though had been made parties to the suit, the plaintiffs had asserted that they were not members of the family, and

25 defendants 9 to 13 having been impleaded as proper parties in a suit for declaration and partition and the trial court had decreed the suit as under:

22.12.2001.

Judgment pronounced in open court vide separate order as under:

The suit of the plaintiff is decreed.

The plaintiff No.2, plaintiff No.3, LRs of the defendant No.1, Defendant No.2, LRs of defendant No.3, defendant No.4 and LRs of defendant No.5 are entitled for 1/7 th share each by way of partition and separate possession in respect of schedule “A” and schedule “B” properties. Accordingly preliminary decree shall be drawn.

The claim with regards to schedule “C” and “D” is rejected.

3. The subject matter of the suit schedule properties, which are, without any dispute, said to be properties that had fallen to the share of one B M Ramaswamy son of

Muniswamappa, and the plaintiffs and the defendants 1 to

5 had claimed to be brothers and sisters of said

Ramaswamy and the further case of the plaintiffs was that the said Ramaswamy having died without being married

26 and without wife and children, his share in the properties of the family had to go to revere and his brothers and sisters who became legal heirs in clause-II as per Section

8 of the Hindu Succession Act, 1956.

4. We find there were inter se disputes even amongst the plaintiffs with the legal heirs of the first plaintiff, who had come on record on the demise of the first plaintiff, and having put forth a claim for improving their fortunes than what had been originally claimed, on the basis of a will said to have been left behind by the deceased first plaintiff and with reference to the share which the parties had claimed in the property of Ramaswamy.

5. Defendants 6 to 8, on the other hand, had claimed that they are the wife and children of said Ramaswamy and as such had put forth the stand that the entire share of Ramaswamy, who was son of Muniswamappa, necessarily has to go to them exclusively and not to either the plaintiffs or to the defendants 1 to 5.

6. The trial court, no doubt, had framed the following issues for its consideration::

1. Whether the plaintiffs prove that the Late B M Ramaswamy died unmarried and intestate?

2. Whether the defendants 6 to 8 prove that the 6 th defendant is the legally wedded wife of late B M Ramaswamy and that defendants 7 and 8 are the children of B M Ramaswamy and 6 th Defendant?

3. Whether the plaintiffs prove that they and the defendants 1 to 5 are the legal heirs of B M Ramaswamy to succeed to the estate of B M Ramaswamy and to the suit schedule properties?

4. Whether the plaintiffs prove that the 6 th defendant is the wife of K C Kanna Rao and that 7 th and 8 th defendants and one Janabai are the children of K C Kanna Rao?

5. Whether the suit is barred by constructive resjudicata?

6. Whether the court fee paid is correct?

7. Whether the legal representatives of the first plaintiff prove that the first plaintiff executed a will in their favour and are the legal heirs of the first plaintiff B M Appaswamy and are entitled to succeed to his estate and to the share in the suit schedule properties?

8. Whether the 3 rd defendant proves that the plaintiffs 2 and 3 and defendants 1 to 5 are the legal heirs of the first plaintiff B M Appaswamy?

9. To what reliefs the plaintiffs are entitled to? but the fact of the matter is that while evidence had been let in on behalf of the plaintiffs, it appears, the defendants had not led any evidence and the matter was got adjourned time and again and as on 20-12-2001, the matter had been set down for orders on IAs XXXVIII and

XXXIX, filed for the purpose of bringing on record the legal representatives of defendants 7 and 8 and the following order had come to be passed:

I.A. 38-39 PP

The counsel N.S. states that he is appearing for plaintiff No.3. He submits that he is not appearing for Plaintiffs 1 & 2. The counsel for plaintiffs 1 & 2 are not present. The plaintiffs 1 & 2 are also not present.

This is a suit for partition filed impleading in all 13 defendants. The defendant No.6, 7 and 8 have filed written Statement dated 14.8.80. 1 st defendant has filed written Statement dated 20.3.81. The 3 rd defendant filed Written

Statement dated 4.6.80. The 4 th defendant filed Written Statement dated 27.10.84 as per the records. The 13 th defendant filed Written Statement dated 5.8.94.

The original plaintiff cause title reveals that 1 st and 3 rd defendant are dead and their LRs are brought on record. The plaintiff No.1 is also dead and his LRs are also brought on record. The LR No.1(b) of the 1 st defendant filed Additional written Statement dated 7.9.88 and the L.R. No.1(a) and 1(e) adopted the Addl. Written Statement as per the memo filed. So also the L.R.s of the 3 rd defendant filed memo adopting the Written Statement earlier filed by the 3 rd defendant. Other defendants have not filed the Written Statement.

The records of this case was assigned to this court on 3.12.2001 for disposal in accordance with law – as per the letter of the principal City Civil Judge. The records reveal the Presiding Officer of CCH 7 on 6.10.2001 had allowed I.A. U/o 5 R20 for publication of citation of notices for bringing the LRs of defendant No.7 and defendant No.13 returnable by today.

The counsel Sri N S submits that he is appearing for only Plaintiff No.3. The plaintiff No.2 and LRs of Plaintiff No.1 are not present. None of the counsel appearing for the defendants on record is present. The counsel for plaintiff No.3 has produce the citation of notices of interim application to the proposed LRs of defendant Nos. 7 and 13 published in Sanjevani Kannada Daily dated 25.11.2001. The proposed LRs named in the applications to

bring the LRs of defendant Nos.7 and 13 are not present and no representation is made. Hence both the applications are allowed and the plaintiff No.3 is permitted to carry out the amendment in the cause title of the plaint by using additional paper since the original plaint cannot accommodate the names of LRs of defendant Nos.7 and 13. The plaintiff shall also file amended plaint incorporating the name of all the LRs already brought on records and now ordered to be brought on record by 21.12.2001.

The counsel for plaintiff No.3 filed a memo reporting the death of defendant No.5 on 17.12.2001. The case is posted for filing the amended plaint and for steps if required against the LRs of the defendants No.5.

Call on 21.12.2011.

Sd/- 21.12.2001 VII A.C.C.J and the matter was directed to be called on the next day and the following order came to be passed on 21-12-2001:

21/12/2001 Plf-ACYG/MS Plaintiff present Def 1-SCR Def 2-GDA Defendants not present LR of D3-NNS D6, 8, 10-HSD D4, 11 & 12-KVR D13-KVA Amended plaint is filed. Kept for arguments by 3 p.m.

The case is taken on board at 3 p.m. the counsel for plaintiff No.3 is present. The counsel for persons claiming as LRs of Plaintiff No.1 as well as Plaintiff No.2 as well as counsel for defendants are not present. The counsel for Plaintiff No.3 has filed written arguments.

For Judgment Sd/- 22/12/01. and the matter was posted for judgment on that day to 22-

12-2001 and on 22-12-2001, judgment was pronounced in the open court and the suit was decreed, as noticed above.

10. It is against this judgment and decree, eighth defendant preferred RFA 189 of 2002, legal representatives/legatees of first plaintiff and the legal representatives of first defendant have in common preferred RFA No 298 of 2002 and the legal representatives of seventh defendant have preferred RFA

No 636 of 2002.

11. Having regard to the hurried manner in which the suit was disposed of, particularly the appellants

32 complaining that they were not given opportunity to place their versions before the trial court and the trial court proceeded to pass judgment within a day’s time, these appellants have in unison prayed for setting aside the judgment and decree and to remand the matter to the trial court not only to give them an opportunity for adducing evidence but also to place their full version before the trial court.

12. This prayer is vehemently opposed by Sri G

Balakrishna Shastry, learned counsel appearing for the second plaintiff and legal representatives of third plaintiff and Sri B A Reddappa, learned counsel for legal representatives of fourth defendant in the suit, who are all parties in these appeals. What is pointed out by these learned counsel is that the matter had been unduly delayed; that the defendants had not availed the opportunity that had been afforded to them by the court and they had not adduced any evidence; that they did not appear on the date when the suit had been set down for

33 hearing and therefore no premium can be placed on their own default and the suit being very old – of the year 1980

– and more than three decades have elapsed thereafter and therefore is not a fit matter for remanding to enable the appellants in these appeals to drag on the proceedings further, but the matter should be allowed to set at rest here.

13. We have bestowed our thought to the submissions made at the Bar. It is noticed that the plaintiffs have filed the suit claiming share in the properties owned by one

Ramaswamy. While the plaintiffs 1 to 3 and defendants 1 to 5 had claimed a share in the property that had fallen to the share Ramaswamy, on the premise that he had no other heirs apart from them, defendants 6 to 8, on the other hand, claimed that they are wife and children of

Ramaswamy and therefore they have share in the property left behind by Ramaswamy to the exclusion of the plaintiffs and defendants 1 to 5. That is the crux of the matter. It is this controversy that is the basic dispute

34 between the plaintiffs and the defendants 1 to 5 vis-à-vis the defendants 6 to 8. It is not in dispute that if defendants 6 to 8 are able to establish before the court that they are the legal heirs of Ramaswamy, the plaintiffs and defendants 1 to 5 will not get any share, but that is a matter which has to be ascertained and for whatever reason, this question has been decided more by way of default than on the merits of the matter.

14. In this state of affairs, we think, we have to set aside the judgment and decree only on the premise that the matter having been concluded without due opportunity to the really contesting defendants and so also to examine a different and augmented claim put forth by the legal representatives of first plaintiff than what they had put forth in the original plaint, in view of the subsequent developments.

15. At this stage, Sri Asokumar, learned counsel for the appellants in RFA No 298 of 2002, submits that the legal

35 heirs of first plaintiff have to be given an opportunity to lead evidence in the wake of their stand that their lot has improved in the light of the will left behind by their predecessor-in-title.

16. In the result, we allow these appeals, set aside the judgment and decree passed by the trial court and remand the matter to the trial court to proceed ahead from the stage of further evidence of plaintiffs. The trial court is directed to give opportunity to parties to enable them to place their versions and permit adducing of such evidence as plaintiffs are desirous of supplementing by way of evidence/additional evidence. It is also open to the defendants to adduce their evidence.

17. We direct the trial court to take up the matter for further evidence on the side of plaintiffs. As all parties are served by counsel in these appeals, the parties are directed to appear before the trial court on 18-3-2013 or on such further date/s as the trial court may fix, without

36 waiting for any separate notice or intimation of date of hearing before the trial court. We also direct the trial court to list the matter for further evidence of plaintiffs on

18-3-2013.

18. Having regard to the history of the suit and its vintage value, the trial court is impressed upon to dispose of the suit expeditiously and desirably on a day to day basis and to conclude the trial and decide the matter by or before 31 st December, 2013. Parties and their respective counsel to cooperate for the expeditious disposal of the suit.

19. It is also made clear that if any of the parties are not represented, it is open to the trial court to notice this position and proceed further in accordance with law.

20. It is open to the learned counsel for the plaintiffs before the trial court to amend the cause title reflecting the position of parties as effected during the pendency of these appeals before this court. An amended plaint may

37 also be filed on 18-3-2013 before the trial court. We also make it clear that there is no need to take separate proceedings before the trial court to bring the legal representatives on record in respect of the parties who were brought on record in these appeals, as legal representatives of parties who had died during the pendency of these appeals before this court, based on the orders passed by this court in these appeals and the same position to be retained so far as the position of parties in the suit is concerned and it is for such purpose, an amended plaint has to be filed.

21. In view of disposal of the main appeals themselves, all pending applications are disposed of as ordered.

Sd/- JUDGE

Sd/- JUDGE *pjk