Karnataka High Court
Smt Munivenkatamma vs Shri Narayanappa on 26 July, 2017
Author: B.Sreenivase Gowda
Bench: B. Sreenivase Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26th DAY OF JULY, 2017
BEFORE
THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA
RSA.NO.480/2016 (PAR)
BETWEEN:
1. SMT MUNIVENKATAMMA
W/O LATE MUNISWAMAPPA,
AGED ABOUT 78 YEARS,
2. SHRI MUNIYAPPA
S/O LATE MUNISWAMAPPA,
AGED ABOUT 53 YEARS,
OCC: AGRICULTURIST,
3. SHRI KRISHNAPPA
S/O LATE MUNISWAMAPPA,
AGED ABOUT 48 YEARS,
OCC: AGRICULTURIST,
ALL ARE R/AT HOLLAMBALLI VILLAGE,
HUTURU HOBLI KOLAR TALUK,
KOLAR DISTRICT-563 101.
... APPELLANTS
(BY SRI G.A.SRIKANTE GOWDA., ADV.,)
2
AND:
1. SHRI NARAYANAPPA
S/O LATE MUNISHAMAPPA,
AGED ABOUT 60 YEARS,
R/OF MARJENAHALLI VILLAGE,
KASABA HOBLI,
KOLAR TALUK-563 101.
2. MASTER RAHUL
S/O N.LOKESH,
AGED ABOUT 12 YEARS,
3. VARSHA SHREE
D/O N.LOKESH
AGED ABOUT 11 YEARS,
RESPONDENTS NO.2 AND 3 ARE
MINORS REPRESENTED BY
THEIR MOTHER AS NATURAL GUARDIAN
SMT SHAKUNTALA,
R/OF HOLLAMBALLI VILLAGE,
HOLURU HOBLI KOLAR TALUK-563 101.
4. SMT RATHNAMMA
W/O KRISHNAPPA,
AGED ABOUT 50 YEARS,
R/O HOLLAMBALLI VILLAGE,
HOLURU HOBLI,
KOLAR TALUK-563 101.
5. SMT MANJULAMMA
W/O ANANDAPPA,
AGED ABOUT 46 YEARS,
OCC:AGRICULTURIST,
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6. SMT CHOWDAMMA
D/O LATE MUNISHAMAPPA,
AGED ABOUT 37 YEARS,
OCC: SCHOOL TEACHER
BOTH RESPONDENTS NO.5 AND 6
ARE R/AT KARENJIKATTE,
KOLAR-563 101.
... RESPONDENTS
(BY SRI V.ANAND, ADV., FOR R1,
SRI VEERANNA G.TIGADI, ADV., FOR R2 & R3
R4, R5 & R6 ARE SERVED, UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 16.12.2015
PASSED IN R.A NO.12/2011 ON THE FILE OF THE I ADDL.
DISTRICT AND SESSIONS JUDGE, KOLAR, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 14.12.2010 PASSED IN O.S.NO.73/2007
ON THE FILE OF THE II ADDL., CIVIL JUDGE (SR.DN),
KOLAR.
THIS RSA COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
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JUDGMENT
This regular second appeal is preferred by the plaintiffs challenging the concurrent judgments and decrees passed by the courts below, whereby the suit of the plaintiffs was dismissed by the trial Court and it was confirmed by the First Appellate Court.
2. Heard Sri G.A.Srikante Gowda, learned counsel for the appellants and Sri V.Anand, learned counsel for respondent No.1 and Sri Veeranna G.Tigadi, learned counsel for respondent Nos.2 and 3. Respondents No.4, 5 and 6 have been served and remained unrepresented. Perused the judgments and decrees passed by the courts below.
3. With the consent of learned counsel appearing for the appellants and respondents No.1, 2 and 3, the appeal is heard and disposed of finally.
4. The learned counsel for the appellants/plaintiffs submits that the propositor Muniswamappa had a wife by 5 name Munivenkatamma (1st plaintiff in the suit) and from her he had three sons and three daughters namely (i) Muniyappa (2nd plaintiff) (ii) Krishnappa (3rd plaintiff) (iii) Narayanappa (1st defendant) (iv) Rathnamma (4th defendant) (v) Manjulamma (5th defendant) and (iv) Chowdamma (6th defendant).
5. He submits, wife and two sons of propositus Muniswamappa filed a suit in O.S.No.73/2007 against another and three daughters of said Muniswamappa for partition and separate possession of their share in the suit schedule properties.
6. According to the plaintiffs as they were not aware that the properties mentioned by the defendants in their written statement are also belonging to their joint family could not include those properties in the schedule of the plaint, even defendants did not furnish full particulars of those properties in their written statement. The trial Court instead of directing the defendants to furnish particulars of 6 those properties and directing the plaintiffs to include those properties in the schedule of the plaint has committed an error in dismissing their suit holding that the suit for partial partition is not maintainable. The 1st Appellate Court has also committed the same mistakes by dismissing the regular appeal preferred by them in R.A.No.12/2011 and confirming the judgment and decree passed by the trial Court.
7. The learned counsel further submits that though defendant No.1 in para 3 of his written statement has furnished the survey numbers of those left out properties, the trial Court instead of directing defendant No.1 to furnish other particulars of those survey numbers such as extent and boundaries and directing the plaintiffs to include those properties in the schedule of the plaint has committed serious error in dismissing the suit on the ground that the suit for partial partition is not maintainable and the First Appellate Court has also committed the same mistakes in dismissing 7 the appeal and confirming the judgment passed by the trial Court.
8. He further submits that since both the appellants (plaintiffs) as well as 1st respondent (1st defendant) have made I.A.Nos.1/2017 and 2/2017 respectively in this second appeal praying permission of the Court to include those left out properties in the schedule of the plaint, the appeal may be allowed and the judgments and decrees passed by the courts below may be set aside and matter may be remanded to the trial Court for reconsideration of the suit afresh.
9. Sri V.Anand, learned counsel for respondent No.1 submits that the judgments and decrees passed by the Courts below may be set aside and the matter may be remitted back to the trial Court with a direction to reconsider the suit afresh by permitting both the plaintiffs as well as 1st defendant to include the left out properties belonging to their joint family in the schedule of the plaint. 8
10. Whereas, Sri Veeranna G.Tigadi, learned counsel for respondents No.2 and 3 though tried to support the judgment and decree passed by the courts below, however he does not dispute the fact that all the properties belonging to the joint family are not included in the schedule of the plaint.
11. In view of the above facts and circumstances of the case and considering the submissions made by the learned counsel appearing for the parties, it is just and proper to allow the appeal and set aside the judgment and decree passed by the courts below and remit the matter back to the trial Court with a direction to reconsider the suit afresh by granting opportunity to include all those left out properties in the schedule of the plaint. Hence, the following ORDER The appeal is allowed. The judgment and decree dated 14.12.2010 passed in O.S.No.73/2007 by the II Addl. Civil Judge (Sr.Dn.), Kolar and the judgment and decree dated 16.12.2015 passed in R.A.NO.12/2011 by the I Addl. District 9 Judge, Kolar, are set aside. The matter stands remitted to the trial Court with a direction to the trial Court to reconsider the suit afresh and decide it on merits in accordance with law by providing opportunity to all the parties to the suit.
I.A.Nos.1 and 2 of 2017 filed by the plaintiffs and 1st defendant are ordered to be forwarded to the trial Court for consideration after giving opportunities to all the parties to the suit.
Since, the plaintiffs and defendants No.1, 2 and 3 were represented through their Counsel they are directed to appear before the trial Court in O.S.No.73/2007 at 3.00 p.m., on 22.01.2018 without expecting further notice from the trial Court. On that day or on the next date of hearing, the plaintiffs shall take out fresh notice to defendants No.4, 5 and 6 as they were served and remained unrepresented in this appeal.
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In the event of the trial Court allowing the applications filed by the plaintiffs and 1st defendant for inclusion of left out properties in the schedule of the plaint, an opportunity may be given to the parties to file additional written statement or rejoinder as the case may be and give opportunities to the parties to lead additional evidence, if any, and cross examine on such additional evidence, if any party to the suit chooses to do so.
Contentions of all the parties are lept open to be urged in the suit.
The trial Court shall decide the suit within one year from the date of service of notice on all the parties.
Registry shall transmit the I.As. and LCR to the trial Court forthwith.
Sd/-
JUDGE PB