Karnataka High Court
Smt Sokkamma Since Dead By Her Lr M ... vs H N Sonnappa on 28 October, 2025
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2025:KHC:42852
WP No. 12689 of 2021
HC-KAR
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
WRIT PETITION NO. 12689 OF 2021 (GM-CPC)
BETWEEN:
SMT. SOKKAMMA
SINCE DEAD BY HER L.R
M. BYRAPPA
S/O CHIKKAMUNISWAMAPPA
AGED ABOUT 72 YEARS
R/AT SIDDAPURA VILLAGE
VARTHUR HOBLI
BANGALORE EAST TALUK - 560 087.
...PETITIONER
(BY SRI VARADARAJAN M.S, ADV.)
AND:
1 . H.N. SONNAPPA
S/O LATE NANJUNDAPPA
AGED ABOUT 60 YEARS
Digitally
R/AT HAGADUR VILLAGE
signed by K.R. PURAM HOBLI - 560 066
NANDINI M S BANGALORE SOUTH TALUK.
Location:
HIGH COURT
OF 2 . H.M. KRISHNAPPA
KARNATAKA S/O NARAYANAPPA
AGED ABOUT 62 YEARS
R/AT HAGADUR VILLAGE
K.R. PURAM HOBLI - 560 066
BANGALORE SOUTH TALUK.
3 . SHOBHA
W/O MANJUANTHA
AGED ABOUT 65 YEARS.
4 . KALPANA
W/O RAVI KUMAR
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HC-KAR
AGED ABOUT 60 YEARS.
RESPONDENTS 3 & 4 ARE
R/AT PATALAMMA LAYOUT KADUGODI, KADUGODI POST BANGALORE - 560 067.
5 . KEMPAMMA W/O LATE HANUMANTHAPPA AGED ABOUT 75 YEARS R/AT HAGADUR VILLAGE K.R. PURAM HOBLI - 560 066 BANGALORE SOUTH TALUK.
6 . BYRAMMA W/O ANJANAPPA AGED ABOUT 65 YEARS R/AT IMMADAHALLI VILLAGE AND POST, VIA WHITEFILED BANGALORE SOUTH TALUK - 560 066.
7 . MENASAMMA W/O SRI NAGAPPA AGED ABOUT 63 YEARS R/AT KADADENAHALLI VILLAGE MALUR TALUK, KOLAR DISTRICT - 563 130.
8 . NANJAMMA S/O SRI KRISHNAPPA AGED ABOUT 61 YEARS R/AT HAGADUR VILALGE IMMADAHALLI POST WHITEFILED - 560 066 BANGALORE SOUTH TALUK.
9 . LASKHMAMMA W/O SRI KRISHNAPPA AGED ABOUT 57 YEARS R/AT SHANBHOGANAHALLI RAJANUKUNTE ROAD AND POST BANGALORE NORTH TALUK PINCODE - 561 203.
10 . RADHAMMA W/O SRI MUNIYAPPA -3- NC: 2025:KHC:42852 WP No. 12689 of 2021 HC-KAR AGED ABOUT 55 YEARS R/O CHANNAKALLU MALUR TALUK KOLAR DISTRICT - 563 130.
C.J. ABDUL KAREEM SHARIFF SINCE DEAD BY LRS 11 . ABDUL WAHAB SHARIFF S/O ABDUL KAREEM SHARIFF AGED ABOUT 50 YEARS R/AT NO 106/2 KOGILU LAYOUT KOGILU BELAHALLI CROSS ROAD KOGILU, YELAHANKA BANGALORE - 560 064.
12 . C.J. MEHABOOB MUNNAVARA SULTHAN S/O C.K. JAFFER SHERIFF AGED ABOUT 60 YEARS.
13 . AMEENABEE AGED ABOUT 57 YEARS.
14 . C.J. JEHRA JABBIN SULTHANA AGED ABOUT 55 YEARS.
RESPONDENTS 12 TO 14 ARE R/AT NO.48, HAYNES ROAD BANGALORE - 560 005.
15 . SMT. BEGUM W/O C.J. KADAR NAWAB SHARIFF AGED ABOUT 60 YEARS.
16 . MUNNA D/O C.J. KADAR NAWAB SHARIFF AGED ABOUT 57 YEARS.
17 . ALTAJ BAI S/O C.J. KADAR NAWAB SHARIFF AGED ABOUT 55 YEARS.
RESPONDENTS 15 TO 17 ARE -4- NC: 2025:KHC:42852 WP No. 12689 of 2021 HC-KAR R/AT NO.48, HAYNES ROAD BANGALORE - 560 005.
18 . N. NAGARAJA S/O NAGAPPA AGED ABOUT 70 YEARS R/AT GARUDACHARPALYA K.R. PURAM HOBLI - 560 048 BANGALORE SOUTH TALUK.
19 . P.M. NAGARAJA S/O LATE MARIYAPPA AGED ABOUT 68 YEARS R/AT PANATHUR VILLAGE VARTHUR HOBLI - 560 087 BANGALORE SOUTH TALUK.
20 . VENKATARAMANAPPA H/O LATE RAMAKKA AGED ABOUT 80 YEARS R/AT HAGADUR VILLAGE K.R. PURAM HOBLI - 560 066 BANGALORE SOUTH TALUK.
21 . RAMESHA S/O LATE RAMAKKA AGED ABOUT 55 YEARS R/AT HAGADUR VILLAGE K R PURAM HOBLI - 560 066 BANGALORE SOUTH TALUK.
...RESPONDENTS (BY SRI V. ANAND, ADV., FOR R-1;
SRI H.S. DWARKANATH, ADV., FOR R-2; V/O/D 15.07.2021 NOTICE TO R-3 TO R-21 IS D/W) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH/SET ASIDE THE ORDER DATED 09.02.2021 AND 08.03.2021 PASSED ON LAs 5 AND 6 FILED BY THE R-1 AND 2 IN FDP 26/2005 ON THE FILE OF THE V ADDL. SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT ANNEXURE-A. THIS PETITION, HAVING BEEN RESEREVED FOR ORDERS ON 10.10.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, COURT MADE THE FOLLOWING:
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NC: 2025:KHC:42852 WP No. 12689 of 2021 HC-KAR CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY CAV ORDER (PER: HON'BLE MR JUSTICE S VISHWAJITH SHETTY)
1. This writ petition under Article 227 of the Constitution of India is filed by the legal representatives of plaintiff no.1 seeking for the following releifs.
"a. Quash / Set-aside the order dated 09.02.2021 and 08.03.2021 passed on I.As 5 & 6 filed by respondents No.1 and 2 in F.D.P.26/2005 on the file of the V Addl. Senior Civil Judge, Bangalore Rural District (Annexure-A) b. Dismiss the said I.As filed by respondents no.1 & 2 in F.D.P. 26/2005 on the file of the V Addl. Senior Civil Judge, Bangalore Rural District.
c. Direct the F.D.P. Court to complete the proceedings as expeditiously as possible, having regard to the age of the original suit as well as that of the F.D.P. by allowing this writ petition, in the interest of justice".
2. Heard the learned counsel appearing for the parties.
3. The plaintiffs had filed O.S.No.84/1992 seeking the relief of partition and separate possession of their share in the suit schedule properties. The suit was contested by the -6- NC: 2025:KHC:42852 WP No. 12689 of 2021 HC-KAR defendants. The Trial Court by judgment and decree dated 28.02.2005 had decreed the suit and preliminary decree was accordingly drawn. The said judgment and decree passed in O.S.No.84/1992 was confirmed in appeal by this Court. Thereafter, the plaintiffs had filed FDP No.26/2005 before the trial Court and in the said proceedings, respondent no.1 herein, who was defendant no.5 in the suit had filed I.A.No.V to include one property which was left out in the preliminary decree passed in O.S.No.84/1992. He had sought for partition and division of the said property amongst the plaintiffs and defendants proportionately along with other suit schedule properties. The said application was opposed by plaintiff no.1. Similar application was filed in I.A.No.6 by respondent no.2 herein, who was defendant no.6 in the suit. The trial court vide the order impugned allowed the said applications and being aggrieved by the same, legal representatives of deceased plaintiff no.1 is before this Court.
4. Learned counsel for the petitioners having reiterated the grounds urged in the petition submits that, since property which was not subject matter of the preliminary -7- NC: 2025:KHC:42852 WP No. 12689 of 2021 HC-KAR decree passed in O.S.No.84/1992 is sought to be included in the preliminary decree by filing application in the final decree proceedings, in view of the judgment passed in the case of CHANNAVEERAPPA GOWDA V RENUKAPPA GOWDA - 2014(3) KCCR 2214, the trial court was not justified in allowing the application. Learned counsel for the petitioners submits that the judgment on which reliance has been placed by the trial court is irrelevant and not applicable to the facts of this case. The property which is now sought to be included in the preliminary decree was sold by plaintiff no.1 on 12.03.2007 under a registered sale deed for family necessity and therefore the same is not available for partition. He accordingly prays to allow the petition.
5. Per contra, learned counsel for contesting respondents who has argued in support of the impugned order submits that the averments found in the sale deed dated 12.03.2007 would clearly go to show that the property which was sold under the registered sale deed is a joint family property. The plaintiffs had left out the said property in O.S.No.84/1992 and after a decree was passed in the said suit -8- NC: 2025:KHC:42852 WP No. 12689 of 2021 HC-KAR on 28.02.2005, the plaintiff no.1 had clandestinely sold the said property for valid consideration. He submits that since property was brought for sale after the preliminary decree was drawn in O.S.No.84/1992, it cannot be said that the property was sold for family necessity. He further submits that the Hon'ble supreme Court in the case of PHOOLCHAND AND ANOTHER V. GOPAL LAL - AIR 1967 SUPREME COURT 1470 has held that in a suit for partition multiple preliminary decrees can be drawn to avoid multiplicity of proceedings. Therefore, the trial court was justified in allowing the application. He submits that on the merits of the case plaintiffs have opportunity to file their statement and counter the prayer made by the defendant. Accordingly, he prays to dismiss the petition.
6. The undisputed facts of the case are, O.S.No.94/1992 was filed by the petitioners herein and two others with a prayer for granting decree of partition and separate possession of suit schedule A, B, C and D properties, to declare that sale deed dated 02.09.1991 executed in favour of defendants no.12 and 13 and sale deed dated 02.09.1991 in favour of defendant nos.7 to 11 were not binding on plaintiffs -9- NC: 2025:KHC:42852 WP No. 12689 of 2021 HC-KAR and also for mesne profits. The said suit was decreed insofar as the first two prayers are concerned and was dismissed in respect of the prayer for mesne profits. The challenge made to the said judgment and decree by the defendants, in RFA No.777/2005 and RFA NO.778/2005 were rejected by this Court and thereafter FDP.No.26/2005 was initiated before the Trial Court by the plaintiffs.
7. Respondent no.1 and 2 herein who were the defendant nos.5 and 6 in O.S.No.84/1992 had filed two separate applications in FDP No.26/2005 with a prayer to include property bearing survey No.78/2 measuring 2 acres 10 guntas situated at Siddapura village, Varthur Hobli, Bengaluru South Taluka in the preliminary decree and had sought for partition and separate possession of the said property in terms of judgment and decree passed in O.S.84/1992. The said applications were opposed by the plaintiffs contending that if the property in question was available for partition, nothing prevented the defendants from bringing the said fact to the notice of trial Court during the pendency of the suit or thereafter to the notice of this Court. It was also contended
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NC: 2025:KHC:42852 WP No. 12689 of 2021 HC-KAR that the purchaser of the land in question, which was sold in the year 2007 is not a party to the proceedings.
8. According to the learned counsel for the petitioners property in question was sold under the registered sale deed dated 12.03.2007, whereas preliminary decree in O.S.84/1992 was passed on 28.02.2005. Therefore, as rightly contended by the learned counsel for the contesting respondents, sale of property in question cannot be considered as a sale for the necessity of the family. In the preamble of the sale deed dated 12.3.2007 under which the plaintiffs have sold the property in question in favour of one Sri Lakshmana Raju, it is clearly stated that the property in question was owned by Hanumanthappa aliyas Appanna, who is the son of the propositus of the family, namely Chikka Hanumanthappa. Therefore, there is prima-facie material to show that the land in question was a joint family property. However, the plaintiffs had not brought the said property for partition in O.S.No.84/1992 and on the other hand after a preliminary decree was drawn in O.S. No.84/1992, the property in question
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NC: 2025:KHC:42852 WP No. 12689 of 2021 HC-KAR has been sold by plaintiff no.1 under a registered sale deed in favour of third party for valid sale consideration.
9. The Hon'ble Supreme Court in the case of PHOOLCHAND (supra) at paragraph no.7 has observed as follows:
"7. We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and 8 specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified
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NC: 2025:KHC:42852 WP No. 12689 of 2021 HC-KAR in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. In any case if two views are possible- and obviously this is so because the High Courts have differed on the question-we would prefer the view taken by the High Courts which hold that a second preliminary decree can be passed, particularly in partition suits where parties have died after the preliminary decree and shares specified in the preliminary decree have to be adjusted. We see no reason why in such a case if there is dispute, it should not be decided by the court which passed the preliminary decree, for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. Whether there can be more than one final decree does not arise in the present appeal and on that we express no opinion. We therefore hold that in the circumstances of this case it was open to the court to draw up a fresh preliminary decree as two of the parties had died after the preliminary decree and before the final decree was passed. Further as there was dispute between the surviving parties as to devolution of the shares of the parties who were dead and that dispute was
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NC: 2025:KHC:42852 WP No. 12689 of 2021 HC-KAR decided by the trial court in the present case and thereafter the preliminary decree already passed was amended, the decision amounted to a decree and was liable to appeal. We therefore agree with the view taken by the High Court that in such circumstances a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree. We should however like to make it clear that this can only be done so long as the final decree has not been passed. We therefore reject this contention of the appellant."
10. In the case of GANDURI KOTESHWARAMMA AND ANR V. CHAKIRIYANADI AND ANR - (2011) 9 SCC 788 reiterating the principles laid down in the case of PHOOLCHAND (supra), the Hon'ble Supreme Court at paragraph no.14 has observed as follows:
"14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation".
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11. The Coordinate Bench of this Court in the case of CHANNAVEERAPPA GOWDA (supra) having referred to the judgment in the case of PHOOLCHAND (supra) and GANDURI (supra) in paragraph no.13 has observed as follows:
"13. However, this principle cannot be extended to include a property which was not the subject matter of the suit, at the time of passing of the preliminary decree. Variation of shares already declared in the property which is the subject matter of the suit is totally different from varying the subject matter of the suit. The reason being that what is the share to which a party to a suit is entitled to in law is purely a question of law, whereas a share in a property is dependent on the nature of the property which is purely a question of fact, which is to be decided on the facts and circumstances of the case based on the evidence adduced. Therefore, once a preliminary decree is passed in respect of the subject matter of the suit, question of including or adding a property to the subject matter of the suit subsequently and claiming a share in respect of the property so included or added is not permissible in law. In respect of the said property a separate suit is maintainable, if sufficient cause is shown for its exclusion in the earlier suit for partition. However, on the ground final decree is not yet passed, the said property cannot be included in the suit after passing of the preliminary decree or a second preliminary decree cannot be passed nor can it be the subject matter of final decree proceedings. Further, if a property which was not the subject matter of a suit, were to be included at the stage of Final Decree Proceedings, evidence has to be recorded to decide whether it is a Joint Family Property or not and if the parties to the suit have share therein or not. By chance if a property belonging to the Joint family could not be included in the suit, a second suit for partition of the property so left out is not maintainable. But if there
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NC: 2025:KHC:42852 WP No. 12689 of 2021 HC-KAR are acceptable reasons for not including the property in the suit, a second suit for its partition would still be maintainable. The Court would also have no such power even U/s 153 of CPC to include a property suo moto. A suit ordinarily means a Civil proceeding instituted by presenting a plaint".
12. In the case of CHANNAVEERAPPA GOWDA (supra) it has been observed that by chance if a property belonging to the joint family property could not be included in the suit, a second suit for partition of the so left out property is not maintainable. If there are acceptable reasons for not including the property in the suit, a second suit for partition would still be maintainable. Therefore, for maintaining a second suit, the party approaching the Court must prove that, for acceptable reasons the property in the suit was not included in the earlier suit.
13. In the case on hand, defendant nos.5 and 6 who have filed applications in I.A.No.V and VI have contented that property in question was left out in the suit for partition filed by the plaintiffs and after a preliminary decree was passed in the suit, the property in question has been brought for sale by the plaintiff no.1. According to the learned counsel for petitioners
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NC: 2025:KHC:42852 WP No. 12689 of 2021 HC-KAR sale was for family necessity and thereby it is admitted that the property in question was a joint family property.
14. In the case of SHEO PUJAN RAI & ORS. V. RAM EKBAL RAI & ORS - AIR 2008 PATNA 50, the High Court of Patna has held that some properties which had been left out in the suit filed for relief of partition and separate possession in which a preliminary decree is drawn, could be included in the schedule of the final decree proceedings, if the properties are covered under the same set of facts on which the learned Trial Court had passed a preliminary decree. It is made clear that such inclusion would neither change the nature of suit nor it would take the other side by surprise, and on the other hand, such addition deems necessary to settle the controversy as a whole and prevent multiplicity of suits and proceedings. Therefore, it is held that in such an event incorporation of the left out properties in the schedule appended to the final decree proceedings in terms of order VI rule 17 of CPC is proper. Similar view has been taken by the High Court of Andhra Pradesh in the case of SOMEREDDI BURRAYYA V. SOMIREDDI ATCHAYYAMMA - AIR 1959 AP 26.
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15. In the case of SMT. JANAKI V. SMT. LALITHA & ORS - 2016 AIR CC 230 (KAR) - (2015) 5 KCCR 455 the point no.(2) that was considered by a coordinate bench of this Court reads as follows :-
"1) XXX
2) Whether the property or properties could be added to the schedule of the final decree proceedings which had not been the subject matter of the suit filed for partition and separate possession?
Considering the judgment of the High Court of Andhra Pradesh in the case of SOMEREDDI BURRAYYA (supra) the judgment of the Supreme Court in the case of PHOOLCHAND (supra) and the judgment of High Court of Patna in the case of SHEO PUJAN RAI (supra) this Court in the case of SMT. JANAKI (supra) at paragraph nos.20 to 23 had answered point no.2 as follows:
"20. Point no.(2): If the court dealing with a suit for partition can conclusively decide the rights of the parties on the basis of the shares already declared in the preliminary decree in terms of order 20 Rule 18(2) of CPC and when court can draw any number of preliminary decrees after the first preliminary decree is passed in suit for partition, inclusion of any property left out earlier cannot be called as incorrect or improper. Parties
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NC: 2025:KHC:42852 WP No. 12689 of 2021 HC-KAR opposing such inclusion will be given an opportunity to file written statement as against such inclusion and the court is expected to pass one more preliminary decree in respect of property newly included deciding as to whether the property is liable for partition and if so what exactly is the share of the parties.
21. Apart from this, court can also consider other aspects like the inclusion being hit by provisions of Order 2 Rule 2 of CPC or estoppel and limitation if property in question had been alienated to third party. It is not as though that the inclusion of a property in the schedule by way of amendment, would automatically entitle the party who has included that property seeking share. Such an inclusion is always subject to a full fledged trial based on the pleadings of the parties and another preliminary decree which is appealable in terms of Section 96 of CPC read with Section 41 of CPC.
22. In paragraph 7 of the decision rendered in Phoolchand's case, it is held that passing of more than one preliminary decree is permissible if circumstances justify the same. It is further held that so far as partition of suits are concerned, the court has got powers to alter the change in share if an event transpires after the preliminary decree. Though Apex Court was concerned with the alternation of the shares because of death of one of the parties in Phoolchand's case, the High Court of Patna in the case of Shub Karan and the High Court of Andhra Pradesh in the case of Somereddi have relied upon the decision of Phoolchand for amplifying that even if a property is left out in the preliminary decree can be the subject matter in the final decree proceedings in order to avoid multiplicity of suits and there could be another decree after a full-fledged trial.
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23. In the present case, the case of the plaintiff is that she was unaware of the property held by her father and by oversight she had forgotten to include 3.30 acres of land in the schedule appended to the plaint filed by her earlier. Contesting defendant No.1 who is respondent No.1 herein has admitted in unequivocal terms that the property now sought to be included belonged to her father as well as the father of plaintiff and that it was his absolute property and the same has been given to her. If the property in question belonged to the father of the plaintiff and defendant No.1 and if there was no division, both of them would be entitled to share. Whether the father of the defendant No.1 has conveyed the property to defendant No.1 or whether the property now sought to be included has been bequeathed in favour of plaintiff and such other contentious issues will have to be decided after recording evidence of the parties. If the defendant No.1 has any valid defence to be raised as against the inclusion, nothing comes in the way of defendant No.1 to file objections in the form of written statement, on the basis of which, proper issues will have to be framed and evidence will have to be recorded and the court has to give its finding on the nature of the property and such other relevant issues. Therefore, inclusion of left out properties in the final decree proceedings is justified and proper There is no reason to take a view contrary to the one taken by the Hon'ble High court of Patna in Sheo Punja Rai's case in which the decision in the case of Poolchand is referred to and relied upon. Hence point no.(2) is answered in the affirmative".
16. In the case of S SATNAM SINGH AND ORS. V. SURENDER KAUR AND ANR. - (2009) 2 SCC 562, the
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NC: 2025:KHC:42852 WP No. 12689 of 2021 HC-KAR Hon'ble Supreme Court has held that the High Court had erred in holding that additional properties cannot be added for partition in the preliminary decree after the preliminary decree attained finality in terms of Section 97 of the Code. It was observed in the said case that Section 97 of the Code would not be a bar to file an application for amendment of decree.
17. In the present case, one of the property which was left out in the earlier suit was sought to be included in the schedule appended to the final decree proceedings. In the preamble of the sale deed under which the property in question was sold, it is clearly stated that property belonged to one Hanumanthappa aliyas Appanna, who is the son of propositus of the family namely Chikka Hanumanthappa. The said property is sold after the preliminary decree was passed in O.S.No.84/1992 and according to the petitioners sale was for family necessity. By raising such contention, petitioners have admitted that property in question is a joint family property and if that is so, they are required to prove the same. The plaintiffs have an opportunity before the trial Court to file their statement opposing the partition of the property in question
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NC: 2025:KHC:42852 WP No. 12689 of 2021 HC-KAR and the Court will be obliged to frame issue on the basis of pleadings of the parties and thereafter give its finding based on the oral and documentary evidence placed on record.
18. In the case of PHOOLCHAND (supra) the Hon'ble Supreme Court has held that any number of preliminary decrees can be passed in a suit for partition and therefore, I do not find any illegality or irregularity in the event a property which is left out in the earlier suit is sought to be partitioned by including the same in the final decree proceeding, for which separate preliminary decree can be drawn which is subject to an appeal as provided under section 96 of CPC. This would not only serve the ends of justice but would also avoid multiplicity of proceedings. Therefore, I am of the opinion that trial Court was fully justified in allowing I.A.No.V and VI vide the order impugned. Therefore, I do not find any good ground to entertain the writ petition.
19. Accordingly, the writ petition is dismissed.
Sd/-
(S VISHWAJITH SHETTY) JUDGE NMS List No.: 1 Sl No.: 78