RSA No. 2590/2006. Case: Manju Vs Manjunath. Karnataka High Court

Case Number:RSA No. 2590/2006
Party Name:Manju Vs Manjunath
Counsel:For Appellant: B.N. Umesh, Adv. for M. Narayana Reddy, Adv. and For Respondents: G.K. Narayana Sharma, Adv.
Judges:A. V. Chandrashekara, J.
Issue:Code of Civil Procedure, 1908 (CPC) - Order XLI Rule 22; Section 96
Judgement Date:October 28, 2014
Court:Karnataka High Court
 
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Judgment:

A. V. Chandrashekara, J.

  1. This appeal is filed by defendant No. 1 of original suit bearing O.S. No. 319/1990 which was pending on the file of the Addl. Civil Judge (Jr. Dn.), at Srirangapatna, of Mandya District. Respondent Nos. 1 and 2 are plaintiffs 2 and 3 in the said suit. Respondent No. 3 was the fourth defendant in the said suit. Respondent No. 4 was defendant No. 5 in the said suit. Respondent No. 5 was the plaintiff No. 1 in the said suit. Respondent No. 4 died during the pendency of this appeal and his legal representatives were already on record as respondent Nos. 1, 2, 3 and 5. Suit filed by plaintiffs 1 to 3 for the relief of partition and separate possession seeking 1/4th share each share came to be dismissed after contest.

  2. Appeal filed under Section 96 of CPC by plaintiffs 2 and 3 has been allowed by the learned Civil Judge (Sr. Dn.), Srirangapatna. It is this divergent judgment which is called in question on various grounds as set out in the appeal memo. Parties will be referred to as plaintiffs 1 to 3 and defendant Nos. 1 to 5 as per their ranking given in the Trial Court.

  3. Facts leading to the filing of the present suit are as follows:

    Suit schedule item No. 1 is an agricultural land measuring 37 guntas in Sy. No. 28/K of Mogarahalli Village, Srirangapatna Taluk. Suit schedule item No. 2 is a residential house situated in Kallu Manti Village of Srirangapatna Taluk. These properties are the ancestral properties of defendant No. 4 and plaintiffs 1 to 3. Defendant No. 4 Raju sold item No. 1 agricultural land measuring 37 guntas in favour of defendant No. 1 -the appellant herein through a registered sale deed dated 06.06.1990 for valuable consideration and that the said alienation is contrary to the legitimate share of the first plaintiff. Defendant Nos. 2 and 3 who are the brothers of the first plaintiff, were transposed as plaintiffs 2 and 3 during the pendency of the suit, since the first plaintiff did not prosecute the suit. Since the alienation was made by their father Raju, does not bind their share, they chose to file a suit for partition and separate possession.

  4. First defendant chose to file a detailed written statement denying all the material averments. Plaintiffs have been called upon to prove the contents of the plaint. According to the first defendant, fourth defendant, being the Manager of the joint family sold the schedule property for a sum of Rs. 13,000/- on 06.06.1990 through a registered sale deed and that the said sale deed is not the outcome of any fraud, undue influence or coercion, as averred in the plaint. Fourth defendant Raju is stated to have set up the plaintiffs to file a suit and hence the suit is not maintainable either in law or on facts. Suit is stated to be collusive in nature.

  5. After defendant Nos. 2 and 3 were transposed as plaintiffs 2 and 3, first defendant chose to file additional written statement. On the basis of the above pleadings following issues came to be framed:

  6. Whether the plaintiff proves that they are the sons of 4th defendant?

  7. Whether the plaintiffs prove that they are entitled to 3/4th share in suit properties?

  8. Whether the I defendant proves that he is a bonafide purchaser of item No. 1 without notice of plaintiffs right in it?

  9. Is the court fee paid is sufficient?

  10. Is the plaintiff entitled to the...

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