Karnataka High Court
Gopala Gowda H K vs Smt. H.R. Indramma on 26 July, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR.JUSTICE R. NATARAJ
WRIT PETITION NO.13985 OF 2022 (GM - CPC)
BETWEEN:
GOPALA GOWDA H.K.,
AGED ABOUT 44 YEARS,
S/O H.R.KENGEGOWDA,
R/AT NO.66/3,
VENKATALAKSHMI APARTMENTS,
15TH CROSS, MALLESHWARAM,
BENGALURU - 560 003.
...PETITIONER
(BY SRI.G.S.NAVEEN, ADVOCATE)
AND:
1. SMT. H.R. INDRAMMA,
D/O LATE H K RAMACHANDRAIAH,
AGED ABOUT 64 YEARS,
R/AT NO.16/1, 4TH CROSS,
I STAGE, BRINDAVAN EXTENSION,
MYSURU - 570 020.
2. SRI. H.R.KENGEGOWDA,
S/O LATE H.K.RAMACHANDRAIAH,
AGED ABOUT 78 YEARS,
3. SRI. H. K. MURALI GOWDA,
S/O H R KENGEGOWDA,
AGED 46 YEARS,
RESPONDENT NO.2 AND 3
R/AT HOMMARAGALLI,
HAMPAPURA HOBLI,
2
H D KOTE TALUK,
MYSURU - 571 125.
4. SMT. KAMALAKSHAMMA,
AGED ABOUT 55 YEARS,
W/O BHEEMASHETTY,
5. SRI. MANJUNATH,
AGED ABOUT 28 YEARS,
6. SRI. NANJUNDASWAMY,
S/O LATE NANJUNDAPPA,
C/O MILL MADEGOWDA,
AGED MAJOR,
RESPONDENT NO.4 TO 6 ARE
R/AT HOMMARAGALLI,
HAMPAPURA HOBLI,
H D KOTE TALUK,
MYSURU - 571 125.
7. SRI. SHIVANANJAIAH,
AGED ABOUT 60 YEARS,
S/O LATE CHANNAIAH,
R/AT MADDUR VILLAGE,
JAYAPURA HOBLI,
MYSURU - 570 008.
8. SMT. JAYASHREE,
AGED ABOUT 40 YEARS,
R/AT ARAKERE VILLAGE,
SRIRANGAPATNA TALUK,
MANDYA - 571 445.
...RESPONDENTS
(BY SRI.C.M.KUMAR RAM, ADVOCATE FOR R1)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH OR SET ASIDE
THE ORDER DATED 08.06.2022 PASSED IN IA NO.6 IN
ORIGINAL SUIT NO.211/2012 ON THE FILE OF THE II ADDL.
SENIOR CIVIL JUDGE, MYSURU PRODUCED AT ANNX-F AND
ETC.,
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THIS W.P. COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The plaintiff in O.S.No.211/2012 on the file of the II Additional Senior Civil Judge, Mysuru (hereinafter referred to as 'Trial Court' for short) has filed this writ petition challenging an order dated 08.06.2022 allowing an application under Order 1 Rule 10 of the Code of Civil Procedure (hereinafter referred to as 'CPC' for short).
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court.
3. The suit in O.S.No.211/2012 was filed for partition and separate possession of the suit item Nos.1 to
14. It was claimed that the suit item Nos.1 to 9 and 11 were derived by the defendant No.1 in terms of a partition deed dated 19.05.1972, while the suit item Nos.10 and 12 to 14 stood in the name of defendant No.1, which were inherited from his father. After the issues were framed, an application under Order 1 Rule 10(2) of CPC was filed by 4 the respondent No.1 herein claiming to be the sister of the defendant No.1. She claimed that she had also filed O.S.No.49/2022 for partition against the defendant No.1 and the said suit was pending consideration before the Senior Civil Judge and CJM at Mysuru. She contended that apart from the properties which were derived by the defendant No.1 under the partition referred above, there were certain other properties which were not subject to partition and that she along with the defendant No.1 had succeeded to an undivided interest in the said properties The trial Court after considering the application felt that the respondent No.1 is a proper and necessary party and hence, allowed the application and permitted her to come on record.
4. Being aggrieved by the aforesaid order, the present writ petition is filed.
5. Learned counsel for the petitioner submitted that the partition deed referred above did not disclose the existence of the properties claimed by the respondent 5 No.1. He further contended that the respondent No.1 did not challenge the execution of the partition deed dated 19.05.1972. He also contended that in view of the partition deed in the year 1972, the claim of the respondent No.1 was not maintainable in view of Section 6 of the Hindu Succession (Amendment) Act, 2005. He also contended that the respondent No.1 had failed to prove how she was a proper and necessary party for the adjudication of the suit.
6. Learned counsel for the respondent No.1 submits that the respondent No.1 was the sister of the defendant No.1 and the properties bearing item Nos.10 and 12 to 14 were not subject to partition under the deed dated 1972. He further submitted that there are certain other properties, in respect of which, O.S.No.49/2022 is pending consideration and therefore, being an heir apparent by virtue of the judgment of the Hon'ble Supreme Court in the case of VINEETA SHARMA VS. 6 RAKESH SHARMA AND OTHERS reported in 2020(2) KAR. L.R.161 (SC), she was entitled to come on record.
7. The fact that the respondent No.1 herein is the sister of the defendant No.1 is not in dispute. It is also not in dispute that the suit item Nos.10 and 12 to 14 were not the subject matter of the partition deed dated 19.05.1972 referred above. If that be so, by virtue of the judgment of the Supreme Court in the case of VINEETA SHARMA (Supra), the respondent No.1 is a proper and necessary party, at least insofar as suit item Nos.10 and 12 to 14 are concerned. In that view of the matter, the trial Court was justified in allowing the application filed by the respondent No.1.
8. I do not find any error in appreciation of the position of law or the reasoning of the trial Court.
9. In that view of the matter, this writ petition lacks merits and the same is dismissed. Any observation made in the above paragraphs shall not be construed that 7 the respondent No.1 does not have any share in the other properties.
It is noticed that there are two suits concerning the suit item Nos.10 and 12 to 14 which are pending before two Courts. In that view of the matter, the suit in O.S.No.49/2022 pending before the Senior Civil Judge and CJM, Mysuru is ordered to be transferred to II Additional Senior Civil Judge at Mysuru and the same shall be called along with O.S.No.211/2012. However, the cases shall not be clubbed.
The parties in OS.No.49/2022 shall appear before the II Additional Senior Civil Judge, Mysuru on 22.08.2022.
Sd/-
JUDGE NR/-