Authority: High Court of Karnataka at Bengaluru

Order Date: 8 December 2023

Case Overview

  • Appeal (RFA No.1165 of 2009) filed by the second defendant, Rajesh Exports Limited (appellant), against the judgment and decree dated 15 September 2009 passed by the XXXVIII Additional City Civil Judge, Bangalore in O.S. No.914/2005.
  • The original suit sought partition, separate possession, permanent injunction and declaration over a building bearing Khata Nos. 43, 44 and 45 (80 ft × 42 ft) situated at Subedar Chatram Road (now Natarathnakar Gubbi Veeranna Road), Bangalore.
  • Plaintiffs: B. Devaraj, B. Yogesh (sons) and B. Sarojamma (wife) – all residing at R/At No.43 Subedar Chatram Road, Bangalore.
  • Defendants: 1) B. Balasubramanya (deceased), 2) Rajesh Exports Ltd (appellant), 3) V.K. Abdulla (Volga Restaurant), 4) Janab Ahmed (Hotel Adora), 5) Srinivasa Setty (Aruna Stores) and others.
  • The trial court framed six issues concerning ownership (joint family vs. self‑acquired), valuation, share entitlement and the validity of a sale deed dated 22‑12‑2004 executed by Defendant 1 in favour of Defendant 2.
  • The trial court found in favour of the plaintiffs on issues 1, 3, 5 and the additional issue, and against Defendant 2 on issue 2, thereby decreeing the suit.
  • Subsequent applications by the plaintiffs (IA No.1/2013, IA No.2/2013, IA No.2/2017) sought to produce additional evidence and amend the plaint to include the existence of a daughter, Pramila, of Subbaiah and Lalithamma, and her son T.S. Mallikarjuna, who had relinquished his share for Rs. 5,00,000 via a partition deed dated 05‑07‑2012.
  • The trial court, however, did not consider Pramila’s existence, nor did it frame an issue on her heirship, leading to the present appeal.

Final Outcome

  • The appeal is allowed; the impugned judgment and decree are set aside.
  • IA No.1/2013 (Order XLI Rule 27(1) & Sec. 151 CPC) and IA No.2/2017 (Order XLI Rule 27(aa) & (b) & Sec. 151 CPC) are permitted, allowing the plaintiffs to adduce additional evidence.
  • IA No.2/2013 (Order VI Rule 17 & Sec. 151 CPC) is allowed, permitting amendment of the plaint to include paragraphs 4(a), 4(b) and 4(c) relating to Pramila’s heirship and the joint‑family nature of the property.
  • The suit O.S. No.914/2005 is restored to the file of the XXXVIII Additional City Civil Judge, Bangalore, with directions to: (i) frame the necessary issues, (ii) implead the legal representatives of Pramila, (iii) consider the amendment and additional evidence, and (iv) decide the case on merits.
  • Parties are directed to appear before the trial court on 22‑12‑2023, and the trial court is instructed to dispose of the 2005 suit at the earliest.
  • Court fee shall be refunded to the appellant in accordance with law.
  • Each party bears its own costs.

Topics: Court Appeal, Property Partition, Amendment of Pleadings