Karnataka High Court
Smt Hemalatha vs Sri K H Srinivasan on 10 October, 2022
Author: V Srishananda
Bench: V Srishananda
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RFA No. 413 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 413 OF 2016 (PAR)
BETWEEN:
SMT. HEMALATHA
W/O SRI B S SHANKAR
AGED ABOUT 48 YEARS
R/O NO.239/4
BULL TEMPLE 'A' CROSS
CHAMRAJAPET
BANGALORE-560 018.
...APPELLANT
(BY SRI. AJAY KUMAR, ADVOCATE)
AND:
1. SRI K H SRINIVASAN
S/O LATE K HANUMAPPA
AGED:79 YEARS
2. SMT. R MOHANAMBA
W/O SRI K H SRINIVASAN
AGED:74 YEARS
3. SMT. B S PRATHIMA
D/O SRI K H SRINIVASAN
AGED:39 YEARS
ALL ARE RESIDING AT NO.22/2(D)
MARAPPA ROAD, JOGUPALYA
ULSOOR, BANGALORE-560 008.
...RESPONDENTS
(BY SRI. GIRIDHAR S V FOR C/R1., ADVOCATE)
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RFA No. 413 of 2016
THIS R.F.A. IS FILED UNDER SECTION 96(1) OF
C.P.C.1908, AGAINST THE JUDGMENT AND DECREE DATED
08.12.2015 PASSED IN O.S.NO.8306/2008 ON THE FILE OF
THE XVII ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, DISMISSING THE SUIT FOR PARTITION AND
SEPARATE POSSESSION.
THIS R.F.A. COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri.Ajay Kumar, learned Counsel for the appellant.
2. Unsuccessful plaintiff is the appellant. Suit for partition was filed by the plaintiff on 26.09.2008. Suit was contested and suit came to be dismissed on the ground that the suit is not maintainable in view of the earlier registered partition deed dated 15.12.1994 marked at Ex.P15 was executed and the same was not even challenged in the suit.
3. Reiterating the grounds urged in the appeal memorandum, learned counsel for the appellant however contended that an application was filed before the trial court to amend the plaint by incorporating the prayer that registered partition deed was effected on 15.12.1994 by -3- RFA No. 413 of 2016 playing fraud on the plaintiff. Said application came to be dismissed and against which the plaintiff had preferred W.P.No.28946/2014 (GM-CPC) and this Court by order dated 13.10.2014 has held as under:
"The petitioner is before this Court assailing the order dated 16.07.2012 passed on IA.No.3 in O.S.No.8306/2008.
2. The petitioner herein is the plaintiff in O.S.No.8306/2008. In a suit filed for partition and separate possession of 1/3rd share of the suit schedule property, the petitioner filed an application under Order VI, Rule 17 of CPC on 12.10.2011. The Court below, by the order dated 16.07.2012 has dismissed the application.
3. Though several contentions have been urged on behalf of the petitioner to assail the order passed by the Court below, I am of the opinion that in a circumstance where the suit has proceeded further for more than two years, it would not be appropriate to interfere with the said order at this juncture. However, the contentions urged while assailing the said order are left open if at all the petitioner ultimately fails in the suit and -4- RFA No. 413 of 2016 if the need for filing an appeal arises. In such circumstance, it would be open for the petitioner to urge the grounds which have been urged in this petition with regard to rejection of IA.No.3 in the appeal if the need for filing the same arises.
4. Leaving open the said contention, the writ petition stands disposed of. In view of disposal of the petition, IA.No.1/2014 for dispensation does not survive for consideration."
4. Taking advantage of the said order, learned counsel for the appellant vehemently contended that the said application is to be allowed and the matter is to be remitted to the trial court for fresh disposal in accordance with law.
5. Perused the order passed by this Court in W.P.No.28946/2014 (supra). Admittedly, the registered partition is effected on 15.12.1994 and the suit came to be filed on 26.09.2008. Therefore, the plea of challenge as to the registered partition deed being effected by playing fraud on the plaintiff cannot be entertained as barred by -5- RFA No. 413 of 2016 limitation. Therefore, no useful purpose would be served by allowing the application for amendment. Further, the registered partition deed is also acted upon by the parties as is observed by the learned trial court judge in the impugned judgment. In view of the same, this Court is of the considered opinion that none of the grounds urged in the appeal memorandum are sufficient enough to assail the impugned judgment.
6. Accordingly, this Court pass the following;
ORDER Admission declined.
The R.F.A. stands dismissed.
No order as to costs.
Sd/-
JUDGE DL