INTHE}flGHCXNNWFOFKARNATMQXATBANGALORE
DATED THIS THE 291'?! DAY OF NOVEMBER 2015
PRESENT
THE HONBLE MR. JUSTICE AJIT J A ' A
AND
THE HONBLE MRSJUSTICE ]E§§§'J.1N_AGAF.{ATHNA'V
R.F.A.NO.766'OF.19S.7'~--
BETWEEN
1.
A .:-O'
SRI.A.P.RmV£ANNA _
SINCE DEAD BY L.RS_-. . '
W/O'~1Af"rE.A.'i3;.R,AMANNA '
AGEI) 52*:'iEARs, --. ~ --
. B. sR1.A.,R.RANOAix:ATRA
S /O LATE ..A.P..RAMAl}I.I~IA
AGED 24 YEARS. '-
' V' . ;{AASTER'A.R.A:&1'1'L''
" ~ _S,'.O'«LATE.A.P.RAMANNA
'' . A_G}%2D :?.5-.Y'E;ARS. MINOR
----_R/ATu_'NO'.'10, K.G.EX'I'ENSION.
' BANGALORE.
. SRI.A,PLi-NAGARAJ
A 5/0 AIN.PUTTARANGAPPA
« '_ .AO'ED ABOUT 61 YEARS
R'/AT N063, HOSPITAL ROAD
§K.G.EXTE'.NSION
SANALORE ~ 9
SINCE DEAD BY LRS.
A. SMT. VIJAYAMMA
W/O LATE A.P.NAGARAJ
AGED 55 YEARS.
l\)
3. B. SRLDINIEZSH
(BY SRLRAGHUPRASAD, ADV. FOR A2:2.[A._si AB}
S/O LATE A.P.NAGARAJ
AGED 26 YEARS.
ALL ARE RESIDING AT
N056}, 75~C, CROSS 63"" BLOCK
RAJAJINAGAR
BANGALORE ~ 10.
SRI.B.S.SUNDAR RAJ ADV./'f+'OR A--1.{A"I*o A . A
SRI.T.N.ARAKESHWARA, A1:n.z."EoR A«2_{A as; 13)
SRI.1\/LVIJAYALAKSHMI ADV. "EQR A--2{B}§-- «_
Am) _
1. SRI.A.P.THHVD'-XPPA
S/O A.N.PUT1'ARANGA1?1?A.__ A
AGED ABOUT51 YEARS " -
R/ATNO. 1 A
K.G.r;;XTENs~:QNéV _ .
BANGALORE ~-- 5.6-0' 0»Q9'.=.___ ~ '
1. A. SMT. " A
W,/0 LA'1"E A.P.'TH;iMAPPA
. AGED ABO UT 55 YEARS.
~ _ "VJ/'OAVE~.R;.AZ..HAGESAN
._A.P;T1s;.11\xiMAPPA
A , AGED'ABOUT 32 YEARS
NO.5,
TRISHNA HOUSING SOCIETY
A , MIKALNAGAR
SINHAGAD ROAD
V' KHADAKWASLA RS (13.03
PUNE W 411 024.
C. SMT. ARCI-{ANA (MANJU)
D/O LATE SRI.A.P.THIMMAPPA
W/O SHARATH
AGED ABOUT 30 YEARS.
1. D. SR1. RAGHAVENDRA
S/O A.P.THIMMAPPA
AGES ABOUT 25 YEARS.
RESPONDENT NO.1, 3 AND 4 ARE
RESIDING AT NO.10 _
3RD CROSS, K.G.EXTENSION
BANGALORE -~ 560 009.
2. SM’I’.A.R.ANURADHA
D/O LATE A.P.RA1\/{ANNA
AGED ABOUT 24 YEARS
RESIDING AT NO.10,V :
K.G.EXm
BANGALORE.
3. SMT. BHAVANI.A£,IAS:GET1″}IA_
W/O LATE f
RESIDING ‘A’1″f~N’O; ?_5–‘O.,_V—OROVSS H A
6TH ELOcI=:V,1=zA5AJ11x:GA’R’_A A ‘ ‘
BANGALORE. _ 51:39.0 :0.-._
, …RESPONDENTS
(BY SRI.M’.N.’SESHz_XI5}{FO.O FOR R} (A TO D)
R2 IS SERVED. .R3.1E.s1.ERvED E WAY OF PAPER
PUELIOATEON). * ‘
5§5***3§=
u§4?4:I;’?.:A,.IS FILED UNDER SECTION 96 OF’ CPC
AGAHQASTA JUDGMENT AND DEGREE DATED
30.0és.19–97 ‘iN OS.NO.2536/88 ON THE FILE OF THE VIITH
ADDL. “GI.’i’*Y cm}; JUDGE, BANGALORE cm’. DECREEING
‘-‘1’I+{I_:S_UIT FOR PARTITION.
THIS REA COMING ON FOR HEARING THIS DAY,
AJIT J GUNJAL J., DELIVERED THE FOLLOWENG:
JEEDGMENT
This appeal is by the defendants. We notice that
the appeal was filed by defendant No.1 and
No.2. We also notice that during the —
appeal both the original defendants
and their legal representatives’ ha\,r.§Tigl31’r1§p’?/fox,
Respondents are the plaintiffsf’ _
2. The suit is filedfffbfyl for partition
and separate //’v:3ni “Share in Suit
schedule” and “i’ewa1*hed Trial Judge on
contest ” n
The fvat:tsVrelat:’.ng to filing of this appeal can be
summarizriedp as follows:
— ‘ he pjrdpositus is one Puttarangappa and he had
‘four soiisf The eldest son according to the parties was of
p.”u_ns,o_u’nd mind and was driven out of the house. A
“dispute arose inter se is between A.N.Puttarangappa
and three sons i.e., plaintiff, defendant No.1 and
defendant No.2. The ease of the plaintiff is that %
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defendant A.N.Puttarangappa partitioned his s.elf~
acquired and ancestral properties, amongst
his sons i.e. the plaintiff and the defendants?’ V’
partition, all the properties were”‘divi<?1f3C1l.l
agreed between the parties to give of
to Defendant No.2.
who died on 21.9.1983 had paildiajp of?.”l”,O’Ll,00O/-
i.e. €50,000/– towardsllhisg for
and on behalf defendant No.1
expressed said amount to
defendaritlllfl also executed a
registered suit schedule property
on 151.-v}Q.1l§’7£lA bieqii-eathing the schedule property
ll’amofigstl’ll3isi.’5ons the plaintiff and the defendants
a.”.l’-c-ondition that defendant No.2 should
_ release over the schedule item No.1 on receipt
Dof. §.i.,E}O.,OOO/– from A.N.F’uttarangappa, plaintiff and
‘defendant No.1. Accordingly the said amount has been
i “paid. Incidentally, we also notice that certain civil
proceedings were initiated and ultimately it culminated
in R.A.No.11/1978 wherein defendant No.2 had given
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up his right in respect of his share in the suit schediile
property. The suit is filed by the p1aiHtiff~Y€SpOnd;€l}«3′:tiff_u
the basis of the Will stated to have been €X€CL14’1:;:6’Cl: ‘
father bequeathing the share. if
enter appearance and fiie the
defendant No.2 entered appeairancefhyh
statement inter alia fg1’v’e;=gf§up his
right insofar as his share property
is concerned -r£eC’efs:séirilyidilsentitle him in
getting his property. On the basis
of the 1e:arVned’illrialv4Judge has framed as
many as ‘five issues V. ”
the”1r1a_terial on record, the Trial Court has
con’e.lusion that the plaintiff has proved the
relin’quishr:’icen’tV deed stated to have been executed by
‘i._gdefendaint No.2 and also the plaintiff has proved the
“if of Will by A.N.Puttarangappa.
6. Learned counsel appearing for the legal
representatives of defendant No.2 would contend that fl
the judgment and decree warrants interference for more
than one reason.
7. lVir.G.D.Ashwathanarayana, learned ”
appearing for the respondent–plaintiff would b
judgment and decree.
8. Before examining the’–c’a5€ on” rne’ritS’,: of
the View that the appeal..itselfr1’na.jg’riot.be rnaintainable.
We do not propose to gofintio of the case
inasmuch as appeal Sdismissed for
another reason} _ l
9. appeal was filed by original
.~.&_defe_n’d.a:n_t questioning the judgment and
i”‘._e¢¢ree, -v«app_eal is filed in the year 1997. Thereafter
the appeal’ha.sF’met with several causalities inasmuch as
‘V.appeai..v§fas dismissed for no:n–prosecution on more than
“ilthlrelejoccasions. When the matter was listed before the
Court on 26.8.2008. none appeared for the appellants,
hence, appeal was dismissed for non–prosecutior1.
Thereafter applications were filed recalling the order.
This Court allowed the said applications pursuant to an X?
order dated 17.10.2008 recalling the order of dismissal
on payment of costs of $1.000/–. It appears the
cost was not deposited. Hence, the matter waS_..rei”‘«
before the Court on 20.11.2008. This H
the conditions imposed for restorati:on._v
were not complied. Hence.’
restoration and dismissed
confirming the order’ on
28.6.2008. it appears once again
filed recalling of We notice that
the said appliveatiolns dwere once again dismissed for
non–pros’ecu’tion 0′ 9.20 1 0. The present
aPl3liQ&J9I1s’u/V aivfpeidfiled ‘alto recall the order dated
“”J.\{e that there is no application filed
rtep.i*esentative of defendant No.1 to recall
_ the ‘~ord.__er -striated 20.9.2010, nevertheless we have
H H ” ‘ — Vlpcorisidered this application.
10. Indeed, the said applications for recalling the
order of dismissal is seriously opposed by Mr.G.D
Ashwathanarayana. He submits that the question of
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recalling the order would not arise inasmuch as the 2%
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applications for recalling the order of dismissal is filed
only by the legal representatives of defendant
submits that insofar as the legal ~
defendant No.1 are concerned, they’
dismissal order. V V W’ A V V V p
11. Indeed, We find ‘co’nszidera~ble.forc’eLfi:in.VHtl1evl
contention of Mr. Cr.D.’__ to be
noticed that the suit and separate
possession. up a Will
stated to haye bequeathing
1/3″‘ Sllare of the issues before the
learned Trial , ” at-‘*’as whether the plaintiff-
.-vv.respVorident Vvhals”‘*prHoVevd the Will. The learned Trial
a finding that the Will is proved in
accordance’ ‘litfiifll law.
axl2.”‘vIpndeed, we are of the View that there cannot be
V’ l..coni’licting decrees in respect of same subject matter
.ff«’ina.srnAuch_ as in one set of proceedings it cannot be held
the Will is proved and another set of proceedings
assuming that we examine the matter to hold that the 1%
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If”)
Will is proved. We also notice that in a suit for partition
all the persons who were parties to the origirial
proceedings should be the parties to appeal H
also.
13. Since the legal represeiiitatfiveis of
No.1 have accepted the judgin_ent_and”
the learned Trial Judgezby to be
dismissed for whateverllllreason, the View that
the question of the legal
representatiVes;”p_«.._of”‘liclelfendant ‘ on merits would
otherwise ‘also’is,_lim’permissible inasmuch as the
judgment decreeAl.p’as’Se4d by the learned Trial Judge
_granting__pi2/V3%”dnlsiiaifemto the respondenbplaintiff stands
*tbiyi:’dismissal of the appeal filed by the legal
representatliivetsl of defendant No. 1.
it .. If any decision is required. one can refer to the two
‘decisions. This Court in the case of Ramappa
T Miallappa Karunnavar vs. Vinayak Shripatrao
Patwardhan reported in Mys. LJ 1973 (1) 294 has
held that respondents were in the possession of joint
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wror1g–doers and the decree was one jointly in favour of
the respondents. Therefore giving up of the first
respondent without bringing his LRS on record
leave the decree in favour of the first
undisturbed and hence the appeal rnust ”
abated as a whole. p l p n K V
The Apex Court in the V
Singh vs. Ram Dular in
AIR 1973 SC 204 has legal
representatives of deceased. appeal, the
appeal abates a Whole.
_l-{ai}iriv,<g'sajd."-sow," We are of the View that the
ol"~__ exarnining the ease of the legal
rep1*.esentat,ii2e.s~of defendant No.2 would not arise. We
_ havealso' perused the applications filed for recalling. lt
H H " ..n,o_. donfbt true that we are little liberal in granting the
g__a'p:Vp1ieations for restoration but not in respect of a
T litigant who is not a vigilant but is an indolent person.
l x We also notice that the appeal has been dismissed for
more than couple of occasions for non–prosecu1:ion.
x
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Hence, we are of the View that the questiorg of
entertaining these applications would not arise.
We pass the following order:
Both the applications as we1iA_as:.th.e appeal. sir’
dismissed.
SS