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2024 Supreme(Online)(KAR) 24367
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF JULY, 2024 PRESENT THE HON'BLE MR JUSTICE V KAMESWAR RAO AND THE HON'BLE MR JUSTICE C M JOSHI RFA NO. 946 OF 2018 (PAR)
BETWEEN:
1. SRI. SRINIVAS SON OF SRI. CHIKKAMUNIYAPPA, AGED ABOUT 68 YEARS, 2. SRI. NARAYANA, SON OF SRI. CHIKKAMUNIYAPPA, AGED ABOUT 66 YEARS, 3. SRI. KRISHNAPPA, SON OF SRI. CHIKKAMUNIYAPPA, AGED ABOUT 64 YEARS, 4. SRI. RAMANNA, SON OF SRI. CHIKKAMUNIYAPPA, AGED ABOUT 62 YEARS, 5. SRI. GOVINDAPPA, SON OF SRI. CHIKKAMUNIYAPPA, AGED ABOUT 60 YEARS, APPELLANT NOS.1 TO 5 ARE RESIDING AT:
MALLIAYAPPANAHALLI VILLAGE, VEMGAL HOBLI, KOLAR TALUK – 563 122.
6. SMT. JAYAMMA, WIFE OF SRI. RAMANNA, DAUGHTER OF SRI. CHIKKAMUNIYAPPA, AGED ABOUT 50 YEARS, RESIDING AT:
KARANALA VILLAGE, THOOBAGERE HOBLI, DODDABALLAPUR TALUK, BANGALORE RURAL DISTRICT – 562 103.
7. SMT. LAKSHMAMMA, WIFE SRI. GOPALAPPA, DAUGHTER OF SRI. CHIKKAMUNIYAPPA, AGED ABOUT 45 YEARS, RESIDING AT:
MADAPURA VILLAGE, TEKAL HOBLI, MALUR TALUK - 563 137.
…APPELLANTS (BY SRI. S. SREEVATSA, SENIOR COUNSEL FOR SRI. DEVENDRA GOWDA.R.R., ADVOCATE)
AND:
1. SRI. M.C. NARAYANASWAMY, S/O. CHIKKAMUNIYAPPA, AGED ABOUT 70 YEARS, 2. SMT. GIRIJAMMA, WIFE OF SRI. VENKATESH, AGED ABOUT 30 YEARS, RESPONDENT NOS.1 & 2 ARE RESIDING AT:
MALLIAYAPPANAHALLI VILLAGE, VEMGAL HOBLI, KOLAR TALUK - 563 122.
3. SMT. MANJULA, W/O. CHANDRAPPA, D/O. M.C. NARAYANASWAMY AGED ABOUT 36 YEARS, R/AT DYAVANAHALLI VILLAGE, VOKKALERY HOBLI, KOLAR TALUK - 563 122. 4. SMT. SHANTHAMMA, W/O. SRIRAMAREDDY, D/O. M.C.NARAYANASWAMY, AGED ABOUT 34 YEARS, R/AT. VAYASKUR VILLAGE, KAIWARA HOBLI, CHINTAMANI - 563 125.
5. SMT. ROOPA, W/O. BYREGOWDA, D/O. M.C.NARAYANASWAMY, AGED ABOUT 32 YEARS, R/AT MACHANDAHALLI VILLAGE, VEMGAL HOBLI, KOLAR TALUK - 563 122. 6. SRI. B.K. SRINIVAS, S/O. LATE KRISHNAPPA, AGED ABOUT 46 YEARS, R/AT BETTAKOTE VILLAGE, CHENNARAYAPATNA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT - 562 110.
7. SRI. R.B. PURUSHOTHAM, S/O. R.D. BUJAGENDRA GOWDA, AGED ABOUT 42 YEARS, 8. SRI. R.B. VENKATE GOWDA, S/O.R.D. BUJAGENDRA GOWDA, AGED ABOUT 40 YEARS, RESPONDENT NOS.7 AND 8 ARE RESIDING AT:
REDDAHALLI VILLAGE, CHENNARAYAPATNA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT - 562 110.
9. SRI. K.S. SRIRAMAIAH, S/O LATE SONNAPPA, AGED ABOUT 56 YEARS, R/AT KALANAYAKANAHALLI VILLAGE, JANGAMAKOTE HOBLI, SIDLAGATTA TALUK, CHIKKABALLAPURA DISTRICT- 562 101.
10. SMT. CHANDRAKALA, W/O. SRI. K.S. KRISHNAPPA, AGED ABOUT 46 YEARS, R/AT KALANAYAKANAHALLI VILLAGE, JANGAMAKOTE HOBLI, SIDLAGATTA TALUK, CHIKKABALLAPURA DISTRICT - 562 101.
11. SRI. LIKITH, S/O. KRISHNE GOWDA.Y.S, AGED ABOUT 27 YEARS, R/AT NO.12, 1ST MAIN AMBEDKAR LAYOUT, K.B.SANDRA, R.T. NAGAR POST, BANGALORE - 560 032.
…RESPONDENTS (BY SRI. HANUMANTHAPPA.B. HARAVI GOWDAR FOR FOR R1 TO R5 (ABSENT), SRI. SHARATH S.GOGI, ADVOCATE FOR R6 TO R11)
THIS APPEAL IS FILED UNDER ORDER 41 RULE 1 R/W SEC. 96 OF CPC., AGAINST THE ORDER DATED 9.2.2018 PASSED ON IA NO.IX IN OS NO.144/2014 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE, KOLAR, ALLOWING THE IA NO.IX FILED UNDER ORDER 7 RULE 11 R/W SEC.151 OF CPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
10.06.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR JUSTICE V KAMESWAR RAO AND THE HON'BLE MR JUSTICE C M JOSHI
CAV JUDGMENT
(PER: THE HON'BLE MR JUSTICE V KAMESWAR RAO)
This appeal has been filed challenging the order dated 09.02.2018 on I.A.No.IX filed by respondents No.6 to 10 herein under Order VII Rule 11 read with Section 151 of C.P.C., whereby the learned II Addl. Senior Civil Judge and J.M.F.C., Kolar (hereinafter ‘Trial Court’) has allowed the application by passing the following order:
“(a) I.A.No.IX filed by defendant No.6 to 10 U/O. 7 Rule 11 R/W.Sec.151 of CPC is allowed. (b) The plaint is rejected U/O.7 Rule 11 (d) of CPC as the same is barred under the provisions of Order 9 Rule 9 of CPC.
(c) The plaintiffs are at liberty to seek restoration of O.S.No.534/2007 in Mis.petition No.42/2013.
(d) No order as to costs.
(e) Draw decree accordingly.”
2. The facts as noted from the record are, it was the case of the appellants/plaintiffs in the suit being O.S.No.144/2014 that certain suit properties are ancestral/joint Hindu Undivided Family properties as the same were purchased by the original propositus Sri. Chikkamuniyappa, the father of appellants and respondent No.1. Late Chikkamuniyappa died intestate on 18.10.1994 leaving the appellants and respondent No.1 as his legal representatives to succeed to his estate including the suit properties. It was the case of the appellants that respondent No.1 had obtained registered sale deed dated 29.09.2006 from appellants No.1 to 5 (along with Akkamma W/o Late Chikkamuniyappa).
3. Appellants No.6, 7 and respondents No.3 to 5 had jointly filed a suit for partition in O.S.No.534/2007 before the Principal Civil Judge (Junior Division) at Kolar against respondent No.1 and also against the appellants No.1 to 5 and respondent No.9 herein. The said suit was dismissed for non-prosecution.
4. The appellants had filed the suit being O.S.No.144/2014 on the file of the Trial Court for the following reliefs:
“WHEREFORE, the plaintiffs humbly prays that this Hon'ble Court be pleased to pass the judgment and decree in favour of the plaintiffs and against the defendants in the following manner.
a) For a partition by metes and bounds to the Suit schedule properties and allot 7/8th share to the plaintiffs separately and independently and put the plaintiffs into separate possession of the said
7/8th share in the suit schedule properties.
b) To declare that the registered Release Deed dated: 29/9/2006 vide document No. 3421/2006- 07 of Book I, stored in CD No. ALRD25, registered in the office of the Sub-Registrar, Kolar, obtained by the Defendant No.1 is void and not binding on the plaintiffs I so far as their 7/8th share in the schedule properties.
c) To declare that the registered Sale Deed dated: 30/03/2007 vide document No. 6823/2006- 07 of Book I, Stored in CD No. KLRD30, registered in the Office of the Sub-Registrar, Kolar, executed by the defendant No.1 in favour of the defendant No.6 in respect of 28 guntas of land (out of total extent of land measuring 1 acre 27 guntas, in Sy. No. 258/1 of Kurugal Village) and 2 acres 12 guntas of land (out of total extent of 7 acres 26 guntas of land in Sy.No. 258/2 of Kurugal Village) is void and not binding on the plaintiffs in so far as
7/8th share in the schedule properties.
d) To declare that the registered Sale Deed dated: 30/03/2007 vide document No. 6825/2006- 07 of Book I, Stored in CD No. KLRD30, registered in the office of the Sub-Registrar, Kolar, executed by the defendant No.1 in favour the defendant No. 7 & 8 in respect of 25 guntas of land (out of total extent of land measuring 1 acre 27 guntas, in Sy. No. 258/1 of Kurugal village) and 2 acres 22 guntas of land (out of total extent of 7 acres 26 guntas of land in Sy.No. 258/2 of Kurugal Village) is void and not binding on the plaintiff in so far as their 7/8th share in the schedule properties.
e) To declare that the registered Sale Deed dated: 30/03/2007 vide document No. 6826/2006- 07 of Book I, Stored in CD No. KLRD30, registered in the office of the Sub-Registrar, Kolar, executed by the defendant No. 1 in favou
