Karnataka High Court
H M Thimmappagowda vs H M Ravindra on 26 November, 2024
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NC: 2024:KHC:48421
WP No. 1482 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 1482 OF 2023 (GM-CPC)
BETWEEN:
H.M. THIMMAPPAGOWDA
S/O LATE MANJAPPAGOWDA
AGED ABOUT 46 YEARS,
R/AT HULUGODU IN BELLANDOOR VILLAGE,
DHARNEKOPPA POST,
SRINGERI TALUK-577139
...PETITIONER
(BY SRI. PRASAD B.S., ADVOCATE)
AND:
1. H.M. RAVINDRA
S/O LATE MANJAPPAGOWDA
AGED ABOUT 44 YEARS,
LAND HOLDER,
R/O. HOSOOR-MELUKOPPA POST,
SRINGERI TALUK VILLAGE,
DHAREKOPPA POST,
Digitally
signed by SRINGERI-577139.
SUMA
Location:
HIGH 2. H.M. KRISHNAMURTHY
COURT OF S/O. LATE MANJAPPAGOWDA
KARNATAKA
AGED ABOUT 38 YEARS,
R/AT HULUGODU IN BELLANDOOR-VILLAGE,
DHARNEKOPPA POST,
SRINGERI-577139.
3. H.M. SATHEESHA
S/O LATE MANJAPPAGOWDA
AGED ABOUT 36 YARS,
R/AT HULUGODU IN BELLANDOOR VILLAGE,
DHARNEKOPPA POST,
SRINGERI TALUK-577 139.
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WP No. 1482 of 2023
4. H.M. ANNAPPAGOWDA
S/O LATE MANJAPPAGOWDA
AGED ABOUT 51 YEARS,
R/O HOSOOR IN MELUKOPPA VILLAGE,
DHARNEKOPPA POST,
SRINGERI TQ.-577139
5. SMT. RATHNAMMA
W/O LATE H.M. VIJAYAPPA GOWDA
AGED ABOUT 68 YEARS,
6. BARATHI
W/O. PRASANTH
AGED ABOUT 46 YEARS,
BOTH ARE R/AT
HALUGODU, BELKNDER VILLAGE,
SRINGERI TALUK-577139.
7. SMT. SHARAVATHI
W/O VIGNESH
AGED ABOUT 44 YEARS,
TEACHER
HUKKOPPA GOVT. HIGH SCHOOL
R/O KAIMANEE BELLANDOOR VILLAGE,
SRINGERI TALUK-577139.
8. H.N GUNDANNAGOWDA
S/O LATE NAGAPPAGOWDA
AGED ABOUT 85 YEARS,
R/AT HULUGODU IN BELLANDOOR VILLAGE,
DHARNEKOPPA POST,
SRINGERI TALUK-577139
9. SMT. SHANTHAMMA
W/O SUBBANNA
AGED ABOUT 76 YEAR,
R/O NEELENDOOR VILLAGE,
KIGGA HOBLI,
SRINGERI TALUK -577139
10. SMT. YASHODA
W/O KESHAVA
MAJOR,
R/O KODAKANE,
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NC: 2024:KHC:48421
WP No. 1482 of 2023
IN NEMMARU VILLAGE,
SRINGERI TALUK-577139.
11. SMT. SAVITHA
W/O SHIVAPPA
MAJOR,
R/O THIPPANAMAKKI IN
VIDYARANAYAPURA VILLAGE,
SRINGERI TALUK-577 139
...RESPONDENTS
(BY SRI. HARISH KUMAR M.C., ADVOCATE FOR RESPONDENT NO.2;
NOTICE SERVED ON RESPONDENT NOS.1, 3, 4, 9, 10 AND 11;
VIDE ORDER DATED 26.11.2024, NOTICE RESPONDENT NOS.5 TO 7
AND 8 IS DISPENSED WITH)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 16/11/2022 BY THE SENIOR CIVIL JUDGE AND JMFC
AT NR PURA, ITINERATE AT SRINGERI IN FDP NO. 09/2018
PRODUCED AT ANNEXURE-F AND CONSEQUENTLY DISMISS THE
APPLICATION.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
The respondent No.1 in FDP No.9/2018 on the file of Senior Civil Judge and JMFC, N.R.Pura, itinerate at Sringeri, has filed this writ petition challenging the correctness of an order dated 16.11.2022 by which, it allowed I.A.No.IX filed under Section 151 of Civil Procedure Code.
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2. (i) A suit in O.S.No.221/2000 was filed by respondent No.1 for partition and separate possession of suit schedule properties. The said suit was decreed on 31.08.2012. Following the preliminary decree, proceedings for a final decree was initiated by respondent No.1 in FDP No.9/2018. In the final decree, the respondent No.2 herein filed an application (I.A.No.IX) under Section 151 of Civil procedure Code to pass an additional preliminary decree for partition of the properties mentioned in the application and declare that each of the sharers was entitled to 1/9th share in the said properties.
(ii) This application was contested by the respondent No.1 and the petitioner herein in FDP No.9/2018. The final decree Court in terms of the impugned order allowed the said application on the ground that there is no prohibition in law in passing more than one preliminary decree and it is for the petitioner/respondent No.2 herein to show how the properties mentioned in the application are properties of the joint family properties and that he is entitled to a share therein.
3. Being aggrieved by the said order, the respondent No.1 in final decree proceedings is before this Court. -5-
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4. The petitioner herein contended that the final decree Court committed an error in blindly allowing the application, though there was no basis for the respondent No.2 herein to contend that the properties mentioned in the application belonged to the joint family. He contends that in the objections filed by the respondent No.1 and petitioner herein, it was specifically contended that many of the properties were self acquired and were not available for partition. He contends that the respondent No.2 herein had laid low from the year 2000 till the year 2022 and did not contend that the properties mentioned in the application were also properties of the joint family. Therefore, he contends that unless the respondent No.2 produced adequate material to establish that properties mentioned in the application were the joint family properties, the final decree Court committed an error in entertaining the request of the respondent No.2.
5. Per contra, the learned counsel for the respondent No.2 contended that the suit for partition was decreed and it was declared that the parties are entitled to 1/9th share in suit schedule properties. He contends that when the suit was filed, -6- NC: 2024:KHC:48421 WP No. 1482 of 2023 he was not aware that the properties which are now sought to be brought on record belonged to the joint family. He contends that now the respondent No.2 has realized that the said properties also belonged to the joint family and that therefore the said properties are to be brought in for an effective division of the properties of the joint family.
6. The suit for partition filed by the members of the joint family was entertained and it was declared that each of the members of the joint family were entitled to 1/9th share. The contention of the respondent No.1/petitioner herein that some of the properties were self acquired, has to be taken with a pinch of salt, in view of the fact that there existed a joint family nucleus. Therefore, it is for the respondent No.2 to establish before the Court that the properties now sought to be included are also properties that belonged to the joint family, but were not included in the suit for partition. Therefore, the final decree Court in a way justified in including the said properties. However, the final decree Court was mindful of the fact that it was for the respondent no.2 to establish that those properties belonged to the joint family and that he is entitled for a share therein.
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7. There is no error committed by the final decree Court in entertaining the application filed by the respondent No.2 warranting interference in this writ petition.
8. Hence, writ petition lacks merit and is dismissed.
9. Pending interlocutory applications if any does not survive for consideration and the same stands disposed off.
Sd/-
(R. NATARAJ) JUDGE HJ List No.: 1 Sl No.: 9