Karnataka High Court
Sri.Rajahemed S/O. Dastagirsab ... vs Sri.Dastagirsab S/O. Saifansab ... on 9 January, 2017
Author: A.S.Bopanna
Bench: A.S. Bopanna
-1-
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR. JUSTICE A.S. BOPANNA
CIVIL REVISION PETITION No.200013/2016
BETWEEN:
1. Sri Rajahemed
S/o Dastagirsab Dhandargi,
Aged about 32 years,
Occ: Service,
R/o Awati Galli, Jamakhandi,
Dist: Bagalkot
now residing at Kalaburagi.
2. Sri Khaja Amin
S/o Dastagirsab Dhandargi,
Aged about 31 years,
Occ: Business,
R/o Awati Galli, Jamakhandi,
Dist: Bagalkot.
.... Petitioners
(By Sri S.S. Mamadapur, Advocate)
AND:
1. Sri Dastagirsab
S/o Saisansab Dhandargi
Aged: Major, Occ: Agriculture,
R/o Near Butnai Tank,
Bijapur - 586 101.
2. Smt. Sabaira Begum
W/o Mohd. Iqbal Mohalkar,
Age: Major, Occ: Household work,
-2-
R/o H.No.233/Shastrinagar,
Solapur - 416 416.
3. Smt. Aminabai S. Maniyar
Aged about 38 years,
Occ: Household work,
R/o Divitageri Galli, Sanglikar Chawl,
Near Modern Tailors House,
Bijapur - 586 101.
4. Sri Mirsab
S/o Alimoiddin Hitanali
Aged about 53 years,
Occ: Agriculture, R/o Kalmadi,
Dist: Bijapur - 586 101.
5. Sri Babu
S/o Alimoiddin Hitanali
Aged about 50 years,
Occ: Agriculture, R/o Kalmadi,
Dist: Bijapur - 586 101.
6. Sri Peerpasha
S/o Alimoiddin Hitanali
Aged about 43 years,
Occ: Agriculture, R/o Kalmadi,
Dist: Bijapur - 586 101.
7. Sri Kutbuddin
S/o Alimoiddin Hitanali
Aged about 38 years,
Occ: Agriculture, R/o Kalmadi,
Dist: Bijapur - 586 101.
8. Smt. Zairabi
W/o Devansab Dhandargi
Aged Major, Occ: Household work,
R/o Khajamin Darga,
Bijapur - 586 101.
9. Smt. Raziya
D/o Devansab Dhandargi
Aged Major, Occ: Household work,
-3-
R/o Khajamin Darga,
Bijapur - 586 101.
10. Smt. Zainabbi
W/o Indarasab Dhandargi
Aged about 68 years,
Occ: Household work,
R/o Butnal Tank,
Bijapur - 586 101.
11. Smt. Salima
D/o Indarasab Dhandargi
Aged about 51 years,
Occ: Household work,
R/o Butnal Tank,
Bijapur - 586 101.
12. Smt. Bibi
D/o Indarasab Dhandargi
Aged about 49 years,
Occ: Household work,
R/o Butnal Tank,
Bijapur - 586 101.
13. Smt. Mariyam
D/o Indarasab Dhandargi
Aged about 46 years,
Occ: Household work,
R/o Butnal Tank,
Bijapur - 586 101.
14. Smt. Bashira
D/o Indarasab Dhandargi
Aged about 43 years,
Occ: Household work,
R/o Butnal Tank,
Bijapur - 586 101.
15. Sri Noor Ahemed
S/o Indarasab Dhandargi
Aged about 41 years,
Occ: Agriculture,
R/o Butnal Tank, Bijapur - 586 101.
-4-
16. Sri Rafiq
S/o Indarasab Dhandargi
Aged about 39 years,
Occ: Agriculture,
R/o Butnal Tank,
Bijapur - 586 101.
17. Sri Mehaboob
S/o Indarasab Dhandargi
Aged about 37 years,
Occ: Agriculture,
R/o Butnal Tank,
Bijapur - 586 101.
18. Sri Ibrahim
S/o Indarasab Dhandargi
Aged about 33 years,
Occ: Agriculture,
R/o Butnal Tank,
Bijapur - 586 101.
19. Sri Abdul Razak
S/o Moiddinsab Darga,
Aged Major, Occ: Agriculture,
R/o Khajamin Darga,
Bijapur - 586 101.
20. Sri Ibrahim
S/o Ahemed Ali Bepari
Aged Major, Occ: Business,
R/o Shapet Galli,
Bijapur - 586 101.
21. Sri Babulal
S/o Gudusab Bepari
Aged Major, Occ: Business,
R/o Shapet Galli,
Bijapur - 586 101.
22. Sri Shamshuddin
S/o Abdulsab Punekar,
Aged Major, Occ: Business,
-5-
R/o Shapet Galli,
Bijapur - 586 101.
.... Respondents
(By Sri Bapugouda Siddappa, Advocate for R-2;
Sri Ameet Kumar Deshapnde, Advocate for R-1,
R-4 to R-17 are served)
This petition is filed under Section 115 of the CPC
1908, praying to set aside the order dated 02.02.2016 passed
by the Learned III Addl. Senior Civil Judge, Vijayapur on
IA-VIII in O.S.28/2014 and consequently allow the said
application.
This petition coming on for admission this day, the
Court made the following:
ORDER
The petitioners herein are defendants No. 1 and 2 in O.S.No.28/2014. Respondents No. 1 and 2 herein have filed a suit in O.S.No.28/2014 seeking partition and separate possession of the suit schedule properties. In the said suit, the petitioners herein have filed an application under Order VII Rule 11 R/w Section 151 of CPC seeking rejection of the plaint as barred by law. Respondents No.1 and 2 herein viz., plaintiffs in the suit opposed the said application. The Court below after considering the rival contentions has dismissed the application by its order impugned dated 02.02.2016. -6- The petitioners therefore claiming to be aggrieved by the said order are before this Court in this revision petition.
2. Notice of this petition was ordered to the respondents. The contesting respondents have appeared through their learned counsel. Though the petition is listed at the stage of admission, the petition itself is taken up for consideration with the consent of the learned counsel and they were heard in this regard.
3. Learned counsel for the petitioners would seek to contend that the plaintiffs had earlier filed a suit in O.S.No.85/2000 which had been dismissed for non- prosecution on 10.11.2009 and the Misc. Application in M.A.No.50/2009 which had been filed seeking restoration had also been dismissed for non-prosecution on 19.02.2011. In that view, it is contended that subsequent suit seeking for the same relief cannot be filed and as such, the suit being barred by law cannot be considered further. In that regard, reference is also -7- made to the provision contained in Order IX Rule 9 of CPC. Hence, it is contended that the trial Court has committed an error in rejecting the application.
4. Learned counsel for the contesting respondents would however seek to sustain the order passed by the Court below. The legal position as noticed by the trial Court is referred to by the learned counsel and in that view, it is contended that the order does not call for interference.
5. Having taken note of the rival contentions, though it is contended on behalf of the petitioners that the earlier suit had been dismissed, what is necessary to be taken into consideration is that the right to seek for partition would remain as recurring cause of action and the right for partition sought is not concluded one way or the other. In that regard, while considering a similar set of circumstance and while keeping in view the provision contained in Order IX Rules 8 and 9 of CPC, a Hon'ble Division Bench of this Court in the -8- case of S.K. Lakshminarasappa since deceased -vs- B. Rudraiah and Others reported in 2013(1) KCCR 672 has laid down that a subsequent suit seeking partition and separate possession would not be barred. The trial Court infact has made a detailed reference to the said judgment and thereafter has arrived at its conclusion.
6. If that be the position, in any event, this Court at this juncture would not be justified in interfering with the order passed by the trial Court which is passed on applying the law declared by a Hon'ble Division Bench of this Court in arriving at its conclusion.
Therefore, I see no merit in this petition. The same is accordingly disposed of.
Sd/-
JUDGE hrp ct:RRJ