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Judgment
H. Billappa, J.—This appeal, by the defendant is directed against the judgement and decree, dated 18.9.2000, passed by the XXII Additional City Civil and Sessions Judge, Bangalore, in O.S. No. 4193/1994.
By the impugned judgement and decree, the Trial Court has decreed the suit of the plaintiffs, granting 1/2 share in the suit schedule property.
Aggrieved by that the appellant-defendant has filed this appeal.
In brief, the facts are: The respondents-plaintiffs filed suit for declaration, partition and separate possession. According to them, the first plaintiff is tin wife of Muniswamaiah and the 2nd respondent is the son of 1st plaintiff and plaintiffs 3 and 4 are the sons of Muniswamaiah through his first, wife Venkatamma. The appellant defendant is the brother of Muniswamaiah. Kunta Muniyappa had two wives namely Smt. Thirumalakka and Smt. Lakshmakka. Muniswamy is the son of Kunta Muniyappa through first wife. The defendant is the son of Kunta Muniyappa through second wife. The husband of the first plaintiff died on 1969. Suit schedule property belonged to Kunta Muniyappa and it was enjoyed by the defendant and the deceased Sri. Muniswamy as co-parceners. The plaintiffs, being the heirs of Muniswamy are entitled for 1/2 share. Therefore, the plaintiffs have filed suit for partition and separate possession of the suit schedule properly.
The appellant has not contested the matter.
The Trial Court has proceeded exparte and decreed the suit of the plaintiffs.
Aggrieved by that die appellant-defendant has filed this appeal.
The learned Counsel for the appellant contended that there was no opportunity to the appellant to contest the matter. He also submitted that the suit schedule property is the self acquired property of the appellant and the suit schedule property has been granted to the appellant by the land Tribunal. He therefore, submitted that the matter requires reconsideration and therefore, the matter may be remitted to the Trial Court for fresh consideration.
As against this the learned Counsel for the respondent submitted that, though sufficient opportunity was given the appellant has not availed it. He also submitted that there is delay in approaching tins court and therefore, the impugned judgement and decree does not call for interference.
I have carefully considered the submissions made by the learned Counsel for the parties.
The point that arises for my consideration is whether the impugned judgement and decree calls for interference.
It is relevant lo note, the suit is for declaration, partition and separate possession. The appellant claims, the suit schedule property is his self acquired property and it has been granted to him by the Land Tribunal. The Trial Court has proceeded ex parte. The documents produced by the appellant along with the application for additional evidence indicate the land is granted to the appellant by the Land Tribunal. The matter requires consideration. In the interest of substantial justice. I consider it proper lo allow the appeal.
Accordingly, the appeal is allowed and the impugned judgement and decree passed by the Trial Court in O.S. No. 4193/1994 is hereby set aside and the matter is remitted to the Trial Court with a direction to reconsider the same, by giving opportunity to the parties. The appellant can file his written statement and contest the mater. In the circumstances of the case, I consider it proper to award cost of Rs. 5,000/-. The appellant shall pay the cost of Rs. 5,000/- to the respondents within four weeks from today. The Trial Court shall dispose of the matter as expeditiously as possible. The parties shall appear before the Trial Court on 19.04.2010, without further notice from the Trial Court.
Office is directed to return the documents produced by appellant along with the application for additional evidence.
The appellant is permitted to adduce evidence before the Trial Court. Therefore, Misc.Cvl.328/10 does not survive for consideration and accordingly, it is rejected.
Misc.Cvl.329/10 does not survive for consideration and accordingly, it is rejected.