Karnataka High Court
Charan S/O M.Srinivasa vs M Srinivasa S/O Late Muniyappa on 11 July, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
R. F. A. NO.565 OF 2007 (PAR)
BETWEEN:
CHARAN
S/O M. SRINIVASA
AGED ABOUT 28 YEARS
R/AT NO.52/1, NEAR MOOKAMBIKA TEMPLE
ESHWARI HIGH SCHOOL ROAD
HOSAKEREHALLI, BANASANKARI III STAGE
BANGALORE-560 085
...APPELLANT
(BY SRI K.C.E.MANJUNATH, ADV. FOR
SRI G.MANIVANNAN, ADV.)
AND:
1. M. SRINIVASA
S/O LATE MUNIYAPPA
AGED ABOUT 64 YEARS
2. NARAYANA
S/O LATE MUNIYAPPA
AGED ABOUT 61 YEARS
3. RAJANNA
S/O LATE MUNIYAPPA
SINCE DECEASED BY HIS LRS
2
a) SMT. SHANTHAMMA
W/O LATE RAJANNA
AGED ABOUT 65 YEARS
b) MAHESH
S/O LATE RAJANNA
AGED ABOUT 42 YEARS
c) SMT. ROOPA
D/O LATE RAJANNA
AGED ABOUT 40 YEARS
d) SMT. ROOPA
D/O LATE RAJANNA
AGED ABOUT 36 YEARS
ALL ARE R/AT NO.22, OLD NO.18
SHIVAN CHETTY GARDEN
SANGAM ROAD
BANGALORE-560 042
...RESPONDENTS
(BY SMT. AFSARUNNISA, ADV. FOR R1;
R2, R3(a) TO R3(d) ARE SERVED)
THIS APPEAL IS FILED UNDER U/SEC.96 R/W ORDER
41 RULE 1 OF CPC, AGAINST THE JUDGEMENT AND
DECREE DT. 18.12.06 PASSED IN OS.NO. 538/1995 ON
THE FILE OF THE I ADDL.CITY CIVIL AND SESSIONS
JUDGE, BANGALORE CITY, CCH.NO.2, DISMISSING THE
SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
The appellant aggrieved by the judgment and decree dated 18.12.2006, passed in O.S.No.538/1995 by the I Additional City Civil and Sessions Judge, Bangalore City, has filed this appeal.
2. Parties are referred to as per their ranking before the Trial Court. The appellant is the plaintiff and respondents are the defendants.
3. Brief facts leading rise to filing of this appeal are as under:
The plaintiff filed a suit for partition and separate possession in respect of the suit schedule property. It is a case of the plaintiff that originally the suit schedule property belonged to one Sri Maheshappa who had four children by name Nanjappa, Ramappa, Muniyappa and Krishnappa. On 07.10.1950, a settlement deed was effected in respect 4 of the properties of Sri Maheshappa and under the said settlement deed, 'C' schedule property therein was allotted to the share of Sri Muniyappa i.e., the father of defendant Nos.1 to 3 and pursuant to the death of Sri Muniyappa, defendant Nos.1 to 3 inherited and succeeded to the share of their father.
The suit property is one of the property of 'C' schedule property mentioned in the settlement deed dated 07.10.1995, allotted to the share of Sri Muniyappa. The plaintiff requested to effect a partition in respect of the suit schedule property and allot a share to the plaintiff. Inspite of the request made by the plaintiff, defendant No.1 did not agree to effect partition. Hence the cause of action arose for the plaintiff to file the suit.
3.1. Defendant No.1 filed written statement and other defendants have not filed their written statement. In the written statement, defendant No.1 5 admitted the relationship of the plaintiff with him and also admitted the execution of the said settlement deed dated 07.10.1950. But he has contended that the said settlement deed was executed as a nominal document and not meant to be acted upon. There is no partition between defendants No.1 to 3 and contended that during the lifetime of defendant No.1, the plaintiff is not entitled to seek for the relief of partition and separate possession. It is contended that defendant No.1 has filed a comprehensive suit for partition in O.S.No.1025/1995 including all the properties of the family and the same is pending. Hence, he sought for dismissal of the suit.
3.2. The Trial Court, on the basis of pleadings, framed the following issues:
1. Whether the plaintiff proves that the suit schedule property is belonged to the 1st defendant?6
2. Whether the plaintiff is entitled for half share in the suit schedule property?
3. Whether the 1st defendant proves that the partition in respect of the suit schedule property has not taken place between him and his brothers?
4. Whether the defendants further proves that the suit is not maintainable for partial partition and also on the ground that the defendant filed a comprehensive suit for partition in O.S.No.1025/1995?
5. Whether the defendants prove that the suit is bad for non-joinder of necessary parties?
6. Whether the defendants prove that the suit is not maintainable on the ground that the suit is frivolous and vexatious?
7. What order or decree?
3.3. The plaintiff in support of his case examined himself as PW-1 and got marked documents at Ex.P1 and Ex.P2. On the other hand, defendant 7 No.1 was examined himself as DW.1 and got marked document at Ex.D1.
3.4. The trial Court, after recording the evidence and considering the material on record held that the plaintiff failed to prove that the suit schedule property belongs to defendant No.1 and further held that the plaintiff failed to prove that he is entitled for half share in the suit property and also held that defendant had proved that the partition in respect of the suit schedule property has not taken place with him and his brother. Further held that the defendant proved that the suit is not maintainable for partial partition and also on the ground that the defendant filed comprehensive suit for partition in O.S.No.1025/1995.
Further held that the defendants proved that the suit is bad for non-joinder of necessary party and held that the defendants have failed to prove that the suit is not maintainable on the ground that the suit is 8 frivolous and vexatious and consequently dismissed the suit of the plaintiff. The plaintiffs aggrieved by the judgment and decree passed by the trial Court, has filed this appeal.
4. Heard the learned counsel for the plaintiff.
5. Learned counsel for the plaintiff submits that the trial Court has committed an error in passing the impugned judgment and decree. He submits that there was a partition between defendant Nos.1 to 3 and a settlement deed was executed. As per the settlement deed, schedule 'C' property mentioned in the settlement deed had fallen to the share of defendant No.1. He submits that admittedly the suit property was ancestral property. The trial Court has committed in error in dismissing the suit solely on the ground that the suit for partial partition is not maintainable and further on the ground that the suit is 9 bad for non-joinder of necessary parties. He submits that the judgment and decree passed by the trial Court is arbitrary and erroneous and same is liable to be set aside. Hence, on these grounds, prays to allow the appeal.
6. Perused the records and considered the submissions made by learned counsel for the plaintiff.
7. The following points arise for my consideration:
(1) Whether the defendant No.1 proves that the suit is not maintainable for partial partition and also on the ground that the defendant No.1 has filed comprehensive suit for partition in O.S.No.1025/1995? (2) Whether the plaintiff proves that the judgment and decree passed by the Trial Court is arbitrary and erroneous and needs interference by this Court? (3) What order or decree?10
8. Point No.1: It is the case of the plaintiff that the original prepositor Maheshappa had four sons namely Nanjappa, Ramappa, Muniyappa and Krishnappa. There was a settlement deed executed in between the brothers of defendant No.1 on 07.10.1950. As per the settlement deed effected in respect of the properties of Maheshappa, 'C' schedule property in the settlement deed was allotted to the share of Muniyappa i.e., father of defendants No.1 to
3. Pursuant to the death of Muniyappa, defendants No.1 to 3 have inherited and succeeded to the share of their father. The suit schedule properties are the ancestral properties of the plaintiff and defendants No.1 to 3. Plaintiff requested defendant No.1 to effect a partition. Defendant No.1 refused to effect partition. Hence plaintiff filed the suit. Plaintiff in order to prove his case examined himself as PW-1. He has filed his affidavit in lieu of examination-in-chief 11 and reiterated the plaint averments. Defendant No.1 has taken a specific contention in the written statement that the plaintiff has not included other 3 properties which were fallen to the share of Muniyappa, in the present suit. The said fact is admitted by PW-1 in the course of cross-examination that the plaintiff has not included other 3 properties which had fallen to the share of the father of defendant No.1. It is also admitted that defendant No.1 has filed a suit for partition and separate possession in respect of the ancestral properties and filed a comprehensive suit in O.S.No.1025/1995 against his brothers including the other 3 properties. When the comprehensive suit is pending for partition and separate possession between defendant No.1 and his brothers, the plaintiff has no right to file the suit for partition and separate possession. The suit for partial partition is not maintainable in view of the 12 decision of the Division Bench of this Court in the case of G. M. MAHENDRA VS. G. M. MOHAN, reported in 2011 (4) KCCR 2461 and in view of the law laid down by the Hon'ble Apex Court in the case of S.SATNAM SINGH & ORS VS. SURNDER KAUR & ANR., reported in AIR 2009 SC 1089, wherein it is held as under:
"16. Before adverting to the rival contentions of the parties, it must be kept in mind the principle that ordinarily a party should not be prejudiced by an act of court. It must also furthermore be borne in mind that in a partition suit where both the parties want partition, a defendant may also be held to be a plaintiff. Ordinarily, a suit for partial partition may not be entertained. When the parties have brought on records by way of pleadings and/or other material that apart from the property mentioned by the plaintiff in his plaint, there are other properties which could be a subject matter of a partition, the court would be entitled to pass a decree even in relation thereto."13
9. The defendants have brought on record by virtue of admission of PW1 that apart from the properties mentioned by the plaintiff in the plaint, there are other properties which are not the subject- matter of the suit. Thus the suit for partial partition is not maintainable. Further, defendant No.1 has already filed a comprehensive suit in O.S.No. 1025/1995 for partition and separate possession, which is pending for consideration. If the plaintiff has got any right to claim share in the properties, he is at liberty to address his grievance in the said suit.
10. In view of the above discussion and the law laid down by the Hon'ble Apex Court and this Court, I answer point No.1 in negative holding that the suit filed by the plaintiff is not maintainable for non-joinder of necessary properties.
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11. Point No.2: The Trial Court considering the evidence on record that the plaintiff has failed to include the other 3 properties, has rightly held that the suit for partial partition is not maintainable and Trial Court was justified in passing the impugned judgment and decree. I do not find any grounds to interfere with the impugned judgment and decree passed by the Trial Court. Accordingly, point No.2 is answered in the negative.
12. Point No.3: In view of the above discussion, I proceed to pass the following:
ORDER The appeal is dismissed confirming the judgment and decree dated 18.12.2006, passed in O.S.No.538/1995, by the I Addl. City Civil & Sessions Judge, Bangalore City.15
However, liberty is reserved to the plaintiff to file an application for impleading him as a party in O.S.No.1025/1995, in case the suit is disposed and any appeal, if pending.
SD/-
JUDGE SSB/RD