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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY 2022
BEFORE
THE HON’BLE MR.JUSTICE ASHOK S. KINAGI
M. F. A. NO.3169 OF 2021 (CPC)
BETWEEN:
1 . SHRI. M KRISHNAPPA
S/O N.MUNISWAMAPPA,
AGED ABOUT 76 YEARS
2 . SHRI M NANJAPPA
S/O N MUNISWAMAPPA,
AGED ABOUT 71 YEARS
3 . SHRI B M NAGARAJ
S/O N MUNISWAMAPPA,
AGED ABOUT 68 YEARS
4 . SHRI B M SHANKARE GOWDA
S/O N. MUNISWAMAPPA,
AGED ABOUT 68 YEARS
5 . SHRI M MUNE GOWDA
S/O N.MUNISWAMAPPA,
AGED ABOUT 68 YEARS,
ALL ARE R/AT KUNTE NANJAPPA ROAD,
BELLARY ROAD, BYATARAYANAPURA,
BENGALURU-560092.
...APPELLANTS
(BY SRI. PRAKASH T HEBBAR, ADVOCATE)
2
AND:
1 . SMT. B S MANJULA
D/O LATE SHAMANNA,
W/O SHIVASHANKAR,
AGED ABOUT 62 YEARS,
R/AT NO.7122, SHIVASHREE NILAYA,
AIYAPPA TEMPLE ROAD, SHABARI NAGARA,
BYATARAYANAPURA,
BENGALURU-560092.
2 . SHRI S SOMANNA
S/O LATE B M SHAMANNA,
AGED ABOUT 60 YEARS,
3 . SHRI S SATISHA
S/O LATE B M SHAMANNA,
AGED ABOUT 57 YEARS,
4 . SHRI S MUNENDRA
S/O LATE B M SHAMANNA,
AGED ABOUT 56 YEARS,
5 . SHRI S NAGESH
S/O LATE B M SHAMANNA,
AGED ABOUT 52 YEARS,
6 . SHRI S SURESH
S/O LATE B M SHAMANNA,
AGED ABOUT 46 YEARS,
ALL ARE R/AT KUNTE NANJAPPA ROAD,
BELLARY ROAD, BYATARAYANAPURA,
BENGALURU-560092.
…RESPONDENTS
(BY SRI. SHIVANAND METI, ADVOCATE FOR R-1
R-2 TO R-6 ARE SERVED)
3
THIS MFA IS FILED U/O.43 RULE 1(r) OF CPC,
AGAINST THE ORDER DT.28.05.2021 PASSED ON IA NO.2
IN O.S.NO.4321/2020 ON THE FILE OF THE LXIV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (CCH-
65), BENGALURU CITY, ALLOWING IA NO.2 FILED U/O.39
RULE 1 AND 2 R/W SEC.151 OF CPC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
PARTITION - HINDU LAW - SUIT FOR PARTITION - MAINTAINABILITY - PARTIAL PARTITION - WHETHER MAINTAINABLE - RESPONDENT NOT INCLUDING OTHER ANCESTRAL AND JOINT FAMILY PROPERTIES IN THE SUIT - WHETHER SUIT MAINTAINABLE - YES - SUIT MAINTAINABLE - TRIAL COURT ERRED IN NOT CONSIDERING THE CONTENTIONS RAISED BY THE PARTIES - IMPOUNDED ORDER SET ASIDE - TRIAL COURT DIRECTED TO RECONSIDER I.A.II AND PASS APPROPRIATE ORDER IN ACCORDANCE WITH LAW.
Fact of the Case:
Respondent No.1 filed a suit for partition and separate possession and also sought for a declaration that the compromise entered in between the appellants and respondents No.2 to 5 is not binding on the share of respondent No.1. In the said suit, the appellants have filed the written statement. In the written statement they have taken a specific contention that respondent No.1 has not included the land measuring 2 acres 27 guntas which is presently standing in the name of S Somanna i.e. brother of respondent No.1 in Sy.No.28 and it is also further contended that the suit for partial partition is not maintainable.
Finding of the Court:
The Trial Court without considering the contentions raised by the parties has passed the impugned order. From the perusal of the impugned order, the Trial Court has not considered the material placed on record by the parties except recording a finding that respondent No.1 has made out a prima facie and it has also recorded that it is not desirable and open for the court to record a decision on the merits of the pleas taken in the suit and those findings will not have the binding effect on the parties at the time of final hearing of the case.
Issues: 1. Whether the suit for partial partition is maintainable? 2. Whether the Trial Court erred in not considering the contentions raised by the parties?
Ratio Decidendi: 1. The suit for partial partition is maintainable. 2. The Trial Court erred in not considering the contentions raised by the parties.
Final Decision: The impugned order passed by the Trial Court is set aside. The Trial Court is directed to reconsider I.A.II and pass appropriate order in accordance with law.
The appellants being aggrieved by the order on
I.A.No.II
dated
28.5.2021
passed
in
O.S.No.4321/2020 by the LXIV Additional City Civil
and Sessions Judge CCH-65 Bengaluru have filed this
appeal.
2. Brief facts leading rise to filing of this appeal
are as under:
Respondent
No.1
filed
a
suit
in
O.S.No.4321/2020 seeking for the relief of partition
and separate possession of her 1/6th share in the suit
schedule property and also sought for declaration that
the compromise decree dated 20.9.2010 passed in
O.S.No.4272/2009 is not binding on respondent No.1
4
in the suit schedule property. In the said suit,
respondents appeared and filed written statement.
Later, respondent No.1 herein has filed an application
in I.A.II seeking for an order of temporary injunction
against the appellants restraining them from changing
the nature and character of the suit schedule
properties.
In support of the application, respondent No.1
has filed an affidavit stating that respondent No.1 and
other respondents are the members of the Hindu
undivided
joint
family
governed
by
the
Hindu
Mithakshara school of law. During the life time, their
father acquired the suit properties under registered
partition deed and on the strength of the registered
partition deed, name of the father of respondent No.1
was entered in the revenue records. It is contended
that father of respondent No.1 died and after his
demise, respondent No.1 requested respondent No.2
5
to 6 to effect partition. Respondents No.2 to 6
refused to effect partition. Hence, the petitioner filed
the suit.
It is further contended that respondents No.2 to
6 have filed a suit in O.S.No.4272/2009 against the
appellants herein for the relief of declaration and
injunction in respect of the suit schedule properties.
In the said suit, respondent No.1 was not a party
though she being the legal heir of late B.M.Shamanna.
The
said
suit
O.S.No.4272/2009
ended
in
a
compromise
by
filing
compromise
petition
by
appellants herein and respondents No.2 to 6 herein.
On the basis of the compromise decree, the
appellants got transferred the pahani and other
revenue records in their names and they were trying
to change the nature and character of the suit
schedule properties. Respondent No.1 tried her best to
6
resist the illegal act of the appellants. Hence,
respondent No.1 filed an application.
The appellants filed a memo adopting their
written statement as objection to I.A.II
The Trial Court after hearing both sides allowed
I.A.II filed by respondent No.1 vide order dated
28.05.2021. The appellants being aggrieved by the
order on I.A.2 has filed this appeal.
3. Heard learned counsel for appellants and
learned counsel for respondent No.1.
4. Learned counsel for the appellants submits
that the appellants have taken a specific contention in
the written statement that the suit for partial partition
is not maintainable as respondent No.1 has not
included
the
other
ancestral
and
joint
family
properties in the suit. Hence, he submits the suit is
not maintainable. He further submits that the Trial
7
Court has not discussed about the contention raised
by the parties in the pleadings as well as in the
objections filed by the appellants. He further submits
that the Trial Court has not assigned any reasonings
and the said impugned order is not a speaking order
and he seeks that I.A.II may be reconsidered by the
Trial Court. Hence, on these grounds, he prays to
allow the appeal.
5.
Per
contra,
learned
counsel
for
the
respondent No.1 supports the impugned order. He
submits that the compromise decree obtained by the
appellants is behind the back of respondent No.1 and
respondent No.1 is not a party to the said compromise
petition and therefore, the said compromise petition is
not binding on respondent No.1. He further submits
that sister of the appellants were also not made
parties to the suit and that the compromise petition
passed in the earlier suit is not binding on respondent
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No.1 and that the Tri
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