Karnataka High Court
Sri. Chelavaiah vs Smt. Satyabhama on 14 June, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:21326
RSA No. 1019 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1019 OF 2018 (PAR)
BETWEEN:
1. SRI. CHELAVAIAH,
S/O SAMPAIAH,
AGED ABOUT 70 YEARS.
2. SRI GOVINDARAJU,
S/O CHELUVAIAH,
AGED ABOUT 45 YEARS.
BOTH ARE R/O. HIREDODDAWADI,
URDIGERE HOBLI-572140,
TUMAKURU TALUK AND DISTRICT.
...APPELLANTS
(BY SRI V.B. SIDDARAMAIAH, ADVOCATE)
Digitally signed
by DEVIKA M AND:
Location: HIGH
COURT OF 1. SMT. SATYABHAMA,
KARNATAKA W/O LATE SURESH,
AGED ABOUT 55 YEARS.
DEAD BY LRS.
1(a) SRI ANIL KUMAR P.S.
S/O LATE SATYABHAMA,
AGED ABOUT 36 YEARS,
R/AT ADARSHA NAGARA,
PAVAGADA,
TUMAKURU DISTRICT-561202.
(AMENDED VIDE COURT ORDER DATED 31.05.2024)
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NC: 2024:KHC:21326
RSA No. 1019 of 2018
2. SMT. H.S. GANGAMMA,
W/O SHVIANNA,
AGED ABOUT 63 YEARS.
RESPONDENTS NO.1 AND 2 ARE
RESIDENTS OF C/O SHIVANNA,
H.NO.36, MARUTHI NILAYA,
BEHIND H.P.S. GOVT. SCHOOL,
A.M.PALYA, SIRA GATE,
TUMAKURU-572106.
3. SMT. H.S. SHANTHAMMA,
W/O LAKSHMIKANTHAIAH,
AGED ABOUT 53 YEARS,
R/O H.NO.1201,
HOUSING BOARD BUS STOP,
SIRA GATE,
TUMAKURU-572106.
4. SRI H.S. DAYANANDA,
S/O LATE SANJEEVAIAH,
AGED ABOUT 53 YEARS,
HIREDODDAWADI,
URDIGERE HOBLI-572140,
TUMAKURU TALUK AND DISTRICT.
DEAD BY LRS
4(a) H.G.NIRMALAMMA,
W/O H.S.DAYANAND,
AGED ABOUT 57 YEARS.
4(b) SHILPA H.D.,
D/O LATE H.S.DAYANAND,
AGED ABOUT 29 YEARS.
BOTH ARE RESIDING AT NO.71,
2ND MAIN, MEENAKSHI LAYOUT,
KAMAKSHIPALYA
BENGLAURU-560079.
(AMENDED VIDE COURT ORDER DATED 31.05.2024)
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NC: 2024:KHC:21326
RSA No. 1019 of 2018
5. SRI H.S. SRINIVASAIAH,
S/O LATE SANJEEVAIAH,
AGED ABOUT 60 YEARS,
WORKING AS ATTENDER AT
S.B.M. VINAYAKANAGARA BRANCH,
TUMAKURU-572101.
...RESPONDENTS
(BY SRI T.A.KARUMBAIAH, ADVOCATE AND
SMT. P.C.VINUTHA, ADVOCATE FOR R1(a), R2 & R3;
SRI HARSHA KUMAR GOWDA H.R., ADVOCATE FOR R4(a& b);
R5 IS SERVED)
THIS RSA IS FILED UNDER ORDER XLII RULE 1 R/W
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 24.03.2018 PASSED IN R.A.NO.184/2013 ON THE FILE
OF THE ADDITIONAL SENIOR CIVIL JUDGE, AND CJM,
TUMAKURU, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 21.10.2013 PASSED IN O.S.
NO.829/2008 ON THE FILE OF THE II ADDITIONAL CITY JUDGE
AND JMFC-III, TUMAKURU.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and the learned counsel for the respondents.
2. This appeal arise out of the judgment and decree passed by the First Appellate Court reversing the finding of the Trial Court in setting aside the dismissal of the suit for the relief of partition and separate possession. The First Appellate Court held that plaintiff No.1 has got 1/4th share in the suit schedule property by metes and bounds and also held that plaintiff Nos.2 -4- NC: 2024:KHC:21326 RSA No. 1019 of 2018 and 3 have got 2/7th share in the 1/4th share of their father in the suit schedule property and also declared that the alienation made by defendant Nos.1 and 2 in favour of defendant No.3 insofar as shares of the plaintiffs are concerned are not binding on them and the same has been questioned before this Court.
3. The learned counsel for the appellants would contend that when the suit is filed for the relief of partition and separate possession, only included the property which was sold in favour of appellant No.1. The learned counsel submits that after purchasing of the property on 17.02.1997, a partition was taken place between appellant Nos.1 and 2 and the same is evident from the document Ex.P.4 filed by the plaintiffs themselves and immediately after the purchase of the property, MR also came into existence as per Ex.P.3. The learned counsel brought to the notice of this Court that there is a clear admission on the part of the witnesses with regard to the original propositus Sanjeevaiah having 5-6 properties and deliberately not included other properties of Sanjeevaiah as per Exs.D.1 and 2 and also one house property as per Exs.D.3 and 4 in a suit for partition. The learned counsel contend that the first daughter of late Sanjeevaiah, namely, Jayalakshmamma also not made as party to the proceedings. The learned counsel -5- NC: 2024:KHC:21326 RSA No. 1019 of 2018 contend that specific defence was taken in the Trial Court that plaintiff No.1 is not the wife of late H.S. Suresh and also not led any evidence to prove the same and also not denied the document of Exs.D.3 and 4. When such being the case, the very contention that the very suit is not maintainable and there cannot be a suit for partial partition and these are the materials with regard to non-arraying of the first daughter as a party and other properties are also available to the family is categorically admitted. When such being the case, the same is not sustainable in the eye of law.
4. The learned counsel relied upon the Division Bench judgment of this Court in the case of G.M. MAHENDRA v. G.M. MOHAN reported in LAWS (KAR) 2010-9-11 with regard to non-inclusion of the suit schedule property and the suit for partial partition is not maintainable and the same is not considered by the Appellate Court reported and also brought to the notice of this Court the proviso of Order 2 Rule 2 of CPC with regard to the suit to include the whole claim. The learned counsel also relied upon the judgment of the Apex Court in the case of KENCHEGOWDA v. SIDDEGOWDA reported in (1994) 4 SCC 294, wherein it is held that the suit for partial partition, -6- NC: 2024:KHC:21326 RSA No. 1019 of 2018 when all the joint family properties not made the subject matter of the suit nor the co-sharers impleaded, not maintainable.
5. The learned counsel for the respondents contend that the matter may be remanded to the Trial Court to consider the non-inclusion of all the members of the joint family and also with regard to non-including of the other family properties.
6. The learned counsel for the appellants brought to the notice of this Court the genealogical tree, which was marked before the Trial Court as Ex.P.1, wherein it is shown that the propositus Sanjeevaiah was having six children; three daughters and three sons.
7. Having heard the submission of the learned counsel for the appellants and the learned counsel for the respondents, the genealogical tree is marked as Ex.P.1 before the Trial Court. No doubt, the Trial Court dismissed the suit in coming to the conclusion that all the family members are not made as parties and not included all the family properties. The First Appellate Court reversed the finding of the Trial Court and granted 1/4th share in respect of sold property. The very suit is not maintainable for partial partition and not included all the family members, who are also sharers and hence the matter requires -7- NC: 2024:KHC:21326 RSA No. 1019 of 2018 to be remanded to the Trial Court to consider the issues and the parties are given opportunity to lead their evidence. The plaintiffs are also given liberty to array the first daughter of Sanjeevaiah, namely, Jayalakshmamma as party to the proceedings and if Jayalakshmamma is no more, her legal representatives are to be brought on record. The admission with regard to other properties is concerned, the same also to be included and then the Court can consider the equity while deciding the issue involved between the parties.
8. The learned counsel for the appellants submits that the appellants are not going to create any third party right or alienate the suit schedule property till the disposal of the suit.
9. In view of the discussions made above, I pass the following:
ORDER
(i) The second appeal is allowed and the matter is remanded to the Trial Court in view of the observations made above.
(ii) The parties are directed to appear before the Trial Court on 15.07.2024, without expecting any notice from the Trial Court.-8-
NC: 2024:KHC:21326 RSA No. 1019 of 2018
(iii) The plaintiffs are directed to immediately take steps for bringing the necessary parties and properties on record, without causing any delay, since the suit is of the year 2008.
(iv) The Trial Court is directed to dispose of the matter within one year from 15.07.2024.
Sd/-
JUDGE MD List No.: 1 Sl No.: 61