Multiple preliminary decrees are permissible in partition suits when circumstances change, allowing inclusion of properties not initially decreed, provided issues are framed for proper adjudication.

ORDER :

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 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 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 vs. 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 on 28.02.2005, the plaintiff no.1 had clandestinely sold the said property for valid consideration. He sub