Karnataka High Court
Smt Vokkaligara Kamalamma vs Vokkaligara Leelavathy on 3 July, 2017
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF JULY, 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.39283/2016(GM-CPC)
BETWEEN:
SMT. VOKKALIGARA KAMALAMMA,
D/O.LATE MARGAPPA,
AGED ABOUT 74 YEARS,
R/A KALATHAMADU VILLAGE,
VIRAJAPET, SOUTH KODAGU-570012.
... PETITIONER
(BY SRI MANMOHAN P. N., ADVOCATE)
AND:
1. VOKKALIGARA LEELAVATHY,
D/O LATE MURGAPPA,
AGED ABOUT 63 YEARS,
2. VOKKALIGARA DEVAKI,
D/O LATE MURGAPPA,
AGED ABOUT 62 YEARS,
3. VOKKALIGARA SARALA KUMARI,
D/O LATE MURGAPPA,
AGED ABOUT 55 YEARS,
4. VOKKALIGARA RUKMINI
D/O LATE MURGAPPA,
AGED ABOUT 53 YEARS,
5. VOKKALIGARA ROHINI,
D/O LATE MURGAPPA,
AGED ABOUT 52 YEARS,
6. VOKKALIGARA SUNANDA,
D/O LATE MURGAPPA,
AGED ABOUT 50 YEARS,
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7. VOKKALIGARA SHOBHA,
D/O LATE MURGAPPA,
AGED ABOUT 48 YEARS,
ALL ARE R/AT
KALATHAMADU VILLAGE,
VIRAJAPET,
SOUTH KODAGU-570012.
... RESPONDENTS
(BY SRI PRASANNA KUMAR, ADVOCATE FOR
SRI B. S. NATARAJA, ADVOCATE FOR R1-R7)
......
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 10.03.2016 PASSED ON I.A.6 IN O.S.54/2012
PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND JMFC
VIRAJAPET AT ANNEXURE-E AND CONSEQUENTLY ALLOW I.A.
NO.6 AS PRAYED FOR.
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Learned counsel for the petitioner/ defendant No.5 filed the present writ petition against the order dated 10th March 2016 made in O.S.No.54/2012 on the file of the Senior Civil Judge, Virajpet, dismissing I.A.No.6 filed under Order VI Rule 17 of Code of Civil Procedure, by the defendant Nos.5 and 6.
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2. The respondents/plaintiffs filed suit for partition, allotment of share, delivery of possession and for mesne profits, contending that the suit schedule properties are joint family properties of plaintiffs and defendants and there was no earlier partition and therefore, they are entitled for partition, as prayed for. All the defendants filed written statement, denied the plaint averments and contended that there was an earlier partition in the year 1984 which was confirmed in O.S.No.75/1998 and FDP No.11/2008. Therefore, the very suit filed by the plaintiffs is not maintainable and accordingly, prayed for dismissal of the suit.
3. When the matter was posted for consideration of payment of court fee, the fifth defendant filed I.A.No.6 under Order VI Rule 17 of Code of Civil Procedure to amend the plaint by narrating the facts and to include about 20 items, reiterating the averments made in the written statement. It was contended that the properties 4 are joint family properties, they were not included in the proceedings and suit for partial partition is not maintainable. The said application was resisted by the second plaintiff by filing objections contending that the properties mentioned in I.A.No.6 were purchased in the name of Smt.Devaki from the income of her husband and out of the income of agriculture only. Her husband was formerly working in HMT and later he was appointed as an officer in the Government of Karnataka and lastly retired as a State level office in the department of KSSIDC and he was having landed properties having income more than Rs.10 to 15 lakhs per annum and therefore, all properties mentioned are self acquired properties of second plaintiff and therefore, sought for dismissal of the application.
4. The Trial Court considering the application and the objections, by the impugned order dated 10th March 5 2016, dismissed the application. Hence the present writ petition is filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri Manmohan P.N. learned counsel for the petitioner/fifth defendant vehemently contended that the properties morefully mentioned as item Nos.1 to 20 in I.A.No.6 are also joint family properties which are not included. Therefore, the very suit for partial partition is not maintainable. The Trial Court, without considering the prayer sought for in the application, has proceeded to decide the rights of the parties holding that after the marriage if any properties are purchased, there can be no connection between the properties purchased by her and it is a settled law. The Trial Court has decided the merits of the application and not on the amendment application to include certain properties which are also joint family properties. Learned counsel further 6 contended that in the absence of any plea with regard to the contentions raised in the written statement, it is not possible to cross-examine the plaintiff and therefore, sought to quash the impugned order by allowing the writ petition.
7. Per contra, Sri Prasanna Kumar, learned counsel for respondent Nos.1 to 7 sought to justify the impugned order and contended that when there is specific defence in the written statement at paragraph 9 that there was earlier partition and suit is not maintainable, it is not open for the defendants to include the properties purchased by the second plaintiff and sought for dismissal of the writ petition.
8. Having heard the learned counsel for the parties to the lis, it is undisputed fact that the respondents herein filed suit for partition and separate possession in respect of properties contending that they are joint family properties of plaintiffs and defendants and there 7 was no partition. Same is denied by defendants by filing written statement and taken contention that in view of earlier partition in the year 1984, suit is not maintainable and therefore is liable to be dismissed. The application filed by the defendants 5 and 6 to include certain properties are also joint family properties is disputed by second plaintiff contending that they are self acquired properties purchased after her marriage. Once there is a specific defence in para 9 of the written statement that there was earlier partition and the present suit is not maintainable, the question of including other properties does not arise. The Trial Court, considering the entire material on record, has rightly dismissed the application filed by defendant Nos.5 and 6.
9. The Trial Court while dismissing the application has proceeded to decide the rights of the parties on merits. The Court should not have ventured to decide 8 the merit of the case and it is for the parties to adduce oral and documentary evidence to prove whether there was earlier partition or not and whether suit schedule properties are joint family properties, after adjudication between the parties.
10. In view of the above, petitioner has not made out any ground to interfere with the impugned order in exercise of powers under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed.
However, it is made clear that any observation made touching the merits of the case while deciding the application shall not come in the way of the Court while deciding the suit. Since the matter is of the year 2012, Trial Court is directed the expedite the suit, subject to cooperation by both the parties to the suit.
Sd/-
JUDGE kcm