IN THE COURT OF THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE AT MYSORE
R.A. NO. /2021
Appellant : B. Sudheendra,
S/o. Late K. Balaraju,
Aged about 29 years,
R/at # Deburu Village, Kasaba
Hobli, Nanjangud Taluk.
V/s
Respondents: 1. K.S. Narasimha Murthy,
S/o Late Shivarama Deekshith,
Aged about 50 years,
2. K.S. Neelakanta Deekshith,
S/o Late Shivarama Deekshith,
Aged about 42 years,
Respondent No.1 & 2 R/at
Deekshith Nilaya, Door No. 15, Car
Street, Kadugodi, Bengaluru City.
3. K. Balaraju,
Since dead by legal heirs
3 (a). Smt. Varalakshmi,
W/o Late K. Balaraju,
Aged about 59 years,
4. B. Srinivas,
S/o Late Balaraju,
Aged about 35 years,
Both the Respondent No. 3 (a) & 4
are R/at Debur Village,
Kasaba Hobli, Nanjangud Taluk.
APPEAL UNDER ORDER 41 RULE 1 R/W 96 OF CIVIL
PROCEDURE CODE:
The above named Appellant beg to submit as follows:-
1. The Appellant/ Plaintiff has preferred this Appeal against the
impugned Judgment and Decree passed in O.S. No.49/2016 on the file
of the Senior Civil Judge at Nanjangud, dated: 04.01.2021.
2. To avoid the confusion in the appeal and also for the convenience, the
parties are referred as per their rank in trail court.
3. The Plaintiff filed above original suit for declaration relief to declare
that the Plaintiff is the co-owner of the suit schedule property and the
sale deed executed by the 3 rd Defendant on 27.07.2006 doesn’t bind
the Plaintiff and for seeking possession of the suit schedule property
from Defendant No.1 & 2.
4. The case of the Plaintiff in the original suit is that, the suit schedule
property is an ancestral property and his family constitutes Hindu joint
family, being Kartha of the joint family, his father sold the suit
schedule property by registered sale deed dated 27.07.2006, by
representing the minor plaintiff, but the said sale is not for legal
necessity of the joint family.
Brief facts of the case before trail court
5. Plaint pleadings :- The suit property is the ancestral property. in the
last 6 months from the date of filing the suit, dispute arisen between
the Plaintiff and the Defendant No.3. The Defendant No.3 refused to
grant partition. On obtaining the revenue records the Plaintiff learnt
that, the Defendant No.3 executed sale deed in favour of Defendant
No.1 & 2. In the sale, the Defendant No.3 acted as attorney to the
Defendant No.4 and acted as minor guardian of the Plaintiff. The
Plaintiff under the belief and also told by his father i.e., The
Defendant No.4 that, land is mortgaged to the Defendant No.1 & 2,
their possession of the suit schedule property as a mortgagee. But, the
Defendant No.3 misused the position and during the minority of the
Plaintiff sold the suit schedule property without necessity that too for
a value less than the guidance value.
6. Written statement of Defendant No. 1 & 2 :- They have taken the
contention that, the suit is barred by limitation. According to them, the
father of the Plaintiff (Defendant No.3) approached them to sell the
suit land and it was not cultivable and left barren and the income
derived was exceeding the cost of cultivation and the coconut trees
were not yielding good produce due to nusi disease and to discharge
the loan obtained from syndicate Bank, Nanjangud. Hence, the
Defendant No.1 & 2 agreed to purchase land vide registered sale deed
dated 21.07.2006 for Rs.5,65,000/- and got changed the Khata as per
M.R. No.30/2006-07. The land was not in cultivable shape and the
Defendant No.1 & 2 spent huge amount every year and made
cultivable and fertile and the coconut trees gradually started yielding
fruits. The Defendants have constructed q 6 Sq. RCC house and 2 Sq.
of sheeted form house and a borewell was dug up to overcome
scarcity of water. The land is fenced with barbed wire and 100 Honne
Trees and 110 teak trees are planted and having red eye the Plaintiff
filed the suit without entitlement and prayed to dismiss the suit.
7. The trial court by judgment and decree dated 04.01.2021 dismissed
the suit of the Plaintiff, aggrieved by the same the Plaintiff preferred
this appeal.
Ground of Appeal
1. The judgment and decree passed by the trial court is illegal and
contrary to the law.
2. The trial court ignored the legal principals and passed the impugned
judgment in the original suit.
3. The trial court failed to appreciate the materials produced in the
original suit and failed to appreciate the same.
4. The trail court failed to notice the evidence recorded as well as the
documents marked in the original case. The trial court without basing
on proper reasons and materials comes to the conclusion in favour of
the Defendant No.1 & 2 and wrongly dismissed the suit of the
Plaintiff.
5. The trail court failed to appreciate the legal norms under Hindu law on
burden to prove the legal necessity in the sale of ancestral property.
6. The judgment and decree passed by the trial court is perverse,
arbitrary and opposed to the cannons of law of justice.
7. Viewed from any angle the judgment and decree of the trial court is
not sustainable and it requires the interference of this Hon’ble Court
by exercising the power of appellant authority.
8. The Appellant paid proper court fee as paid before the trail court, the
valuation slip of the trail court is produced herewith.
9. The appeal is in time.
PRAYER
Wherefore, the appellant respectfully prays that this Hon’ble
Court be pleased to call for the records from the trial court, peruse the
same and be pleased to set aside the judgment and decree of the court
below passed in O. S. No. 49/2016 dated 04.01.2021 and decree the
suit as prayed in the plaint, in the interest of justice and equity.
Advocate for Appellant Appellant
Place : Mysuru
Date :
IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE AT
MYSURU
R. A. No. /2021
Appellant : Sudheendra
V/s
Respondents : K.S. Narasimhamurthy
& others
I.A. No. 2021
Applicant : Sudheendra
------ Appellant
V/s
Respondents : K.S. Narasimhamurthy
& others ----- Respondents
APPLICATION FILED UNDER ORDER 41 RULE 5 OF THE
CIVIL PROCEEDURE CODE
For the reasons stated in the accompanying affidavit, the
applicant / Appellant pray that this Hon’ble Court may be pleased to
stay the judgment and decree passed in O. S. No. 49/2016, dated
04.01.2021 on the file of the Senior Civil Judge, Nanjangud, till the
disposal of this appeal, in the interest of justice & equity
Advocate for Appellant Appellant
Place : Mysuru
Date :
IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE AT
MYSURU
R. A. No. /2021
Appellant : Sudheendra
V/s
Respondents : K.S. Narasimhamurthy
& others
AFFIDAVIT
I, Sudheendra, the appellant herein, do hereby solemnly affirm on
oath and state as follows :-
1. I filed the above appeal against the judgment and decree passed in O.
S. No. 49/2016 dated 04.01.2021 on the file of Senior Civil Judge,
Nanjangud.
2. The averments made in the appeal Memorandum and the Materials
produced in the appeal may be considered with this application to
avoid the repetition of the same.
3. The trial court without appreciating the materials on record passed the
impugned judgment and decree in O. S. No. 49/2016, dated
04.01.2021. The trial court overlooked the materials on record and
assumed the case of the Defendants No.1 & 2 contrary to law. The
trial court based the conclusion without any reason and materials the
trial court erroneously passed the judgment and decree which is
perverse, arbitrary and opposed to cannons of law of justice.
4. Therefore I have preferred this appeal and I have good case to urge
before this Hon’ble Court and this court can exercise the appellant
court’s power to avoid the injustice being caused to me. Hence, this
application.
5. If the application is not allowed I will be put to hardship and injury
and further it will cause great injustice to me.
6. Therefore it is just and necessary that the accompanying application
may be allowed as prayed for.
I do swear that the above contents are true and correct to the
best of my knowledge.
Identified by me
Deponent
Advocate
Place : Mysuru
Date :
IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE AT
MYSURU
R. A. No. / 2021
F.R.No.44 / 2021
Appellant : Sudheendra
V/s
Respondents : K.S. Narasimhamurthy
& others
D.D.04.01.2021
MEMO FILED BY THE APPELLANT / PLAINTIFF
The Plaintiff in O.S.No.49/2016 on the file of the Senior Civil
Judge, Nanjangud, submits that, he prefers an appeal against the
judgment & decree passed in the above case dated 04.01.2021, before
the Principal District court at, Mysuru. The same has been intimated
to the trail court.
Place : Mysuru Advocate for Appellant
Date :
