1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 08 T H DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
R.F.A.NO.100054/2015 (PAR & POS)
BETWEEN
1. SUMITRA W/O BHIMANAGOUDA PATIL,
AGED ABOUT: 64 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GOPANKOPPA, GOUDAR ONI,
HUBLI, DIST: DHARWAD-580 001
2. HANAMANTAGOUDA BHIMANAGOUDA PATIL,
AGED ABOUT: 40 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD WORK,
R/O: GOPANKOPPA,
GOUDAR ONI, HUBLI,
DIST: DHARWAD, 580 001
3. KALLANAGOUDA BHIMANAGOUDA PATIL,
AGED ABOUT: 38 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD WORK,
R/O: GOPANKOPPA,
GOUDAR ONI, HUBLI,
DIST: DHARWAD-580 001
4. SUSHILA W/O BASAVARAJ HARALIKOPPI,
2
AGE ABOUT: 42 YEARS,
OCC: HOUSEHOLD WORK,
R/AT: DUNDASHI, TQ: SHIGGAON,
DIST: HAVERI-580 002
5. SUJATA W/O KARABASAPPA MALLIGWAD,
AGE ABOUT: 36 YEARS,
OCC: HOUSEHOLD WORK,
R/AT: GAMANAGATTI,
TQ: HUBLI, DIST: DHARWAD-580 001
....APPELLANTS
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
AND
1. SIDDAVVA
W/O MAHADEVAPPA AGADI,
AGED ABOUT: 63 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GOPANKOPPA, HUGAR ONI,
NEAR BHEEMANAGOUDA FLOUR MILL,
HUBLI, DIST: DHARWAD.
PIN 580 001
2. PARVATEVVA
W/O BHARMAGOUDA HALEMANI,
AGED ABOUT: 71 YEARS,
OCC: AGRICULTURE,
R/O: SHANAWAD,
TQ: NAVALGUND,
DIST: DHARWAD.
PIN 580 001
3. SEETAVVA
W/O MALLAPPA DHARWAD,
AGED ABOUT: 67 YEARS,
OCC: AGRICULTURE,
3
R/O: GAMANGATTI,
TQ: HUBLI, DIST: DHARWAD.
PIN 580 001
4. MANKAVVA
W/O TIRAKAPPA ULAVANNAVAR,
AGED ABOUT: 65 YEARS,
OCC: HOUSEHOLD WORK,
R/O: KARADAGI,TQ: SAVANUR,
DIST: HAVERI. PIN 580 002
5. FAKKEERAWWA
W/O NEELAKANTHAPPA KARJAGI,
AGED ABOUT: 59 YEARS,
OCC: HOUSE MANAGEMENT,
R/O: BENAKANAHALLI,
TQ: KUNDGOL, DIST: DHARWAD.
PIN 580 001
6. SAWAKKA
W/O LAXMAN CHOUDAL,
AGED ABOUT: 57 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GUDAGERI, TQ: KUNDGOL,
DIST: DHARWAD-580 001
7. NEELAWWA
W/O IRAPPA NEERALAKATTI,
AGED ABOUT: 55 YEARS,
OCC: HOUSEHOLD WORK,
R/O: HANGARAKI,
TQ: DHARWAD, DIST: DHARWAD-580 001
8. IRANNA TAMMANNA MALLIGAWAD,
AGED ABOUT: 42 YEARS,
OCC: ELECTRICAL,
R/O: GAMANGATTI, TQ: HUBLI,
DIST: DHARWAD-580 001
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9. KARABASAPPA TAMMANNA MALLIGAWAD,
AGED ABOUT: 40 YEARS,
OCC: ELECTRICAL, R/O: GAMANGATTI,
TQ: HUBLI, DIST: DHARWAD, PIN 580 001
10. BASAVARAJ TAMMANNA MALLIGAWAD,
AGED ABOUT: 36 YEARS,
OCC: PVT., SERVICE,
R/O: GAMANGATTI, TQ: HUBLI,
DIST: DHARWAD. PIN 580 001
11. MANJUNATH TAMMANNA MALLIGAWAD,
AGED ABOUT: 36 YEARS,
OCC: PVT., SERVICE,
R/O: GAMANGATTI, TQ: HUBLI,
DIST: DHARWAD. PIN 580 001
...RESPONDENTS
(BY SRI. DINESH M KULKARNI, ADVOCATE FOR R1;
SRI R.R.NADAGER, ADVOCATE FOR R2 AND R4;
SRI UMESH P.HAKKARKI, ADVOCATE FOR R8 TO R11;
NOTICE TO R3, R5 AND R7 SERVED, UNREPRESENTED)
THIS REGULAR FIRST APPEAL IS FILED UNDER
ORDER XLI RULE 1 R/W SECTION 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 21.01.2015 PASSED IN
O.S.NO.317/2011 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE, HUBBALLI, DECREEING THE SUIT
FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS RFA BEING RESERVED FOR JUDGMENT ON
15.12.2020, THIS DAY, RAVI V.HOSMANI, J., DELIVERED
THE FOLLOWING:
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JUDGMENT
This appeal is preferred by defendant Nos. 1 to 5 challenging judgment and decree dated 21/01/2015 passed by I Additional Senior Civil Judge, Hubballi in O.S.No.317/2011.
2. For the sake of convenience, parties are referred to as per their ranking before Trial Court.
3. The facts in brief leading to this appeal are that, one Sri. Manakanagouda Patil, was propositus of family. He died intestate, on 08.04.1991, leaving behind him one son namely Bhimanagouda and eight daughters namely - Parvatavva, Seetavva, Manakavva, Siddavva, Kallavva, Fakkiravva, Savakka and Neelavva. Smt. Siddavva D/o. Manakanagouda is the plaintiff. Her brother
- Bhimanagouda Patil died intestate, on 08.02.2002, leaving behind him his wife Sumitra (defendant No.1), two sons, Hanumanthgouda (defendant No.2), Kallanagouda (defendant No.3) and two daughters Susheela (defendant No.4) and Sujata (defendant No.5). One of plaintiff's 6 sisters - Smt. Kallawwa died on 29.10.2011, leaving behind four sons namely, Iranna (defendant No.12), Karabasappa (defendant No.13), Basavaraj (defendant No.14) and Manjunath (defendant No.15). These persons constituted Hindu Joint Family which owned joint family properties.
The suit schedule properties were joint family properties of the propositus. Defendants No.1 to 5 sold plot No.2, 12, 28, 66 and 75 in R.S.182/B of Gopanakoppa. Plaintiff and defendants purchased schedule 'B' property in the name of defendant Nos.2 and 3. There was no partition between parties. The plaintiff got 1/9 t h share in joint family properties and she was in joint possession. After she demanded her share, there was refusal. Hence, she filed suit against defendants.
In response to suit summons, defendants entered their appearance. Defendant No.2 filed written statement denying suit schedule properties were joint family properties and there was no prior partition between plaintiff, late Bhimanagouda, Kallavva and defendant Nos. 7 6 to 12. In para -5, it was specifically stated that the plaintiff while compromising the suit bearing O.S.No.209/2000 clearly admitted through a memo that she has no right, title, interest in any of the properties belonging to undivided family and therefore the present suit was abuse of process of Court. The said written statement was adopted by defendant No.1, 3 to 5. They sought for dismissal of suit.
4. Based on the pleadings, trial court framed following issues for its consideration:
1. Whether the plaintiffs prove that the suit properties are her joint family properties and she is in joint possession and enjoyment of the same as averred?
2. Whether the plaintiff is entitled to any share in the suit properties and if so, what is her share?3. Whether the defendant Nos. 1 to 5
prove that this suit is not maintainable in view of compromise decree passed in O.S.No.209/2000 on the file of Principal Senior Civil Judge, Court Hubli?8
4. Whether the plaintiff is entitled to any relief as sought for in the suit?
5. What order or decree?
5. In support of their case, plaintiff examined herself as P.W.1. Exhibits P.1 to P.21 were marked. On behalf of defendants, defendant No.1 was examined as DW-1 and three other witnesses as DW-2 to DW-4 respectively. Exs. D.1 to D.12 were got marked.
6. On appreciation of oral and documentary evidence, trial Court answered issues Nos.1, 2 and 4 in the affirmative, issue No.3 in the negative and decreed the suit. Plaintiff was held entitled to 1/9 t h share in suit schedule properties. Aggrieved by the same, defendant Nos. 1 to 5 are in appeal before this Court.
7. Learned counsel Shri. Mallikarjunswamy B. Hiremath for appellants-defendants submitted that trial Court committed grave error in decreeing the suit, though the suit was hit by Order II Rule 2 of Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for 9 short) which fact was established by producing plaint filed in earlier suit namely O.S.No.209/2000 as per Exs. D.2 to D.4. It was submitted that the finding given by the trial Court on issue No.3 was perverse and call for interference. While deciding issue No.3, the trial court held that the admission of the plaintiff that the suit schedule properties in the present suit were not the subject matter of the prior suit and further admission that plaintiff had not executed any registered documents for relinquishing her right over suit schedule properties, was sufficient to come to the conclusion that the defendant failed to prove that suit was not maintainable. The bar under Order II Rule 2 was not at all considered in its perspective.
8. Learned counsel submitted that plaintiff in this case namely, Siddavva Mahadevappa Agadi was plaintiff No.5 in earlier suit O.S.No.209/2000. In the said suit, it was stated that one Hanumanthgouda was common ancestor of plaintiff and defendants. He had four sons, 10 Channabasanagouda, Fakkirgouda, Manakanagouda and Kallanagouda. Channabasanagouda died on 03.05.1985. He had two sons, Hanumanthagouda and Mallikarjunagouda. Prior to death on 06.04.1988 Fakkirgouda adopted Mallikarjungouda. Kallanagouda died on 19.10.1993, leaving behind his wife Dyamavva and two sons Ujjanagouda and Dharamagouda. The other son Manakanagouda died on 08.04.1991 leaving behind him one son - Bhimanagouda and eight daughters. These persons constituted joint family owning agricultural lands namely Sy. No. 177/2, 177/4 and 177/5 measuring 1 Acre 39 Guntas, 6 Acres 4 Guntas and 3 Acres 17 Guntas respectively, which were joint family properties, cultivated by all four sons of Hanumanthgouda, jointly. On coming into force Land Reforms Amendment Act, all four brothers filed form No.7 to avoid technical defects. They were granted occupancy rights for and on behalf of joint family. Therefore, each branch got 1/4 t h share in suit properties. It was also stated that there were some collusive decrees obtained behind their back, which did not bind them. The 11 plaintiffs sought relief of partition and separate possession of their 1/4 t h share in suit schedule properties. The cause of action stated therein was their demand for partition of their separate shares, which was refused by their defendants.
9. It was further submitted that in the said suit, plaintiff Nos. 2, 4 and 5 filed a memo dated 19.09.2000 stating that they do not have any right and interest in the suit properties and sought for dismissal of suit insofar as plaintiff Nos. 2, 4 and 5. The suit ended in compromise.
10. Thereafter the present suit is filed by Smt. Siddavva seeking for partition and separate possession of her 1/9 t h share in schedule properties namely, SCHEDULE -A (1) Residential house bearing No.124 and 124/A situated at Gopakanakoppa, Hubli which is bounded as under:
To the East : Road
To the West : property of
Dharmagouda K. Patil
12
and Ujjanagouda
K. Patil
To the North : Road
To the South : Road
(2) Land bearing R.S.No.51/1 measuring 7 Acres 14 Guntas situated at Gopankoppa, Hubli which is bounded as under:
To the East : Stream
To the West : Road
To the North : R.S.No.52
To the South : R.S.No.50
SCHEDULE -B
(1) Land bearing R.S.No.417/3 measuring 4 Acres situated at Saunshi village, Tq: Kundgol, which is bounded as under:
To the East : R.S.No.417/2
To the West : R.S.No.399
To the North : R.S.No.417/4
To the South : R.S.No.417/2
(2) Land bearing R.S.No.417/4, measuring 4 Acres situated at Saunshi village, Tq: Kundgol, which is bounded as under:
To the East : R.S.No.417/1
To the West : R.S.No.399
To the North : R.S.No.416
To the South : R.S.No.417/3
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In the plaint, plaintiff stated that suit schedule -A and schedule -B were joint family properties. It was stated that plaintiff had 1/9 t h share in joint family properties and despite her demand, she was not given her share constraining her to file suit for partition.
11. From the above, it was submitted that Smt. Siddavva who is seeking for partition had already sought partition in O.S.No.209/2000, ought to have included all joint family properties in the said suit. Omission to include all her claims in earlier suit amounted to abandonment of her claim, as it was not with leave of Court, hence present suit was barred under Order II Rule 2 of CPC.
12. It was further contended that, apart from her omission to sue in respect of all joint family properties in prior suit, plaintiff relinquished her right, by filing a memo, which attracted application of provisions of Order II Rule 2 of CPC. Hence instant suit was not maintainable. In support of his contentions, learned counsel for 14 appellants relied upon decision of Hon'ble Supreme Court in Shankar Sitaram Sontakke and another Vs. Balakrishna Sitaram Sontakke and Others reported in AIR 1954 SC 352 and a decision of learned Single Judge of Allahabad High Court in Smt. Shukla verma Vs. Prem Shankar and others reported in 1976 AIILJ 652.
13. On the other hand, learned counsel Sri. Dinesh M. Kulkarni appearing for respondents submitted that the suit schedule properties in earlier suit and instant suit are not one and the same. The cause of action for earlier suit differs with that of present case. Even parties in earlier suit were not same as in present suit. The earlier suit was filed seeking for partition of her share in the joint family properties against her father's brothers, whereas instant suit is with regard to her share in joint family properties of her father Manakanagouda. Learned counsel relied upon the decision in the case of Bapusaheb Chimasaheb Naik-Nimbalkar (Dead through legal representatives) and another V/s. Mahesh Vijaysinha Rajebhosale and 15 others, reported in (2017) 7 SCC 769, to contend that instant case did not attract Order II Rule 1, 2 and 3 of CPC.
Learned counsel further relied upon decision of Hon'ble Supreme Court in the case of Vishwanath Achari Vs. Kanakabashapaty reported in AIR 2005 SCW 3588, to contend that appellate Court, even though empowered to frame issue other than those framed and considered by trial Court, it is required by Section 107 of CPC to remit the additional issue for trial.
14. Heard learned counsel for both parties and perused impugned judgment and record.
15. From the above, it is not in dispute that plaintiff Siddavva in this case had earlier filed O.S.No.209/2000 as plaintiff No.5 and relief sought therein was also for partition of joint family properties. The subject matter of said suit did not include suit schedule properties in the present suit. The parties therein also included uncles of plaintiff i.e., brothers of the propositus in this case 16 namely Manakanagouda Patil. The plaintiff in the said suit filed a memo relinquishing her rights. The suit ended in a compromise decree. The points required to be decided in this appeal is whether above facts attract application of provisions of Order II of CPC, which reads as follows:
"Order II Rule 1. Frame of suit.- 1. Frame of suit. - Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.
2. Suit to include the whole claim. - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not 17 afterwards sue for any relief so omitted.
Explanation.-For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.
3. Joinder of causes of action. - (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit.
16. The Hon'ble Supreme Court in its decision N.V.
Shrinivasa Murthy vs. Mariyamma reported in AIR 2005 SC 2897 has held that in order to attract bar of Order II Rule 2, earlier suit should be founded on same cause of action on which subsequent suit is based and if in earlier suit, plaintiff omitted to sue in respect of or 18 intentionally relinquished any portion of his claim, he will not subsequently entitled to sue in respect of claim so omitted or relinquished. In Union of India vs. H.K. Dhruv reported in 2005 (10) SCC 218, it is further held that the earlier suit should have been disposed of on merits. The basic idea behind these provisions is that a defendant should not be vexed twice for same cause of action.
17. In this case, it is not in dispute that parties in this suit were also parties in earlier suit. The relief sought in both the suits is partition. In Shankar Sitaram Sontakke's case supra relied upon by counsel for appellant, Hon'ble Supreme Court held that cause of action in suit for partition is the desire of plaintiff to separate from his brothers and to divide joint family properties. The same principle is evolved in Smt. Shukla Verma's case also. Learned counsel for respondents on other hand relied upon decision in Bapu Saheb (Supra) wherein it is held that provisions of Order II Rule 2 would 19 not apply if cause of action of previous suit and subsequent suit are different. It is also held there in that cause of action for suit for partition of joint family properties is a continuing cause of action. But on a careful examination of facts in Bapu Saheb's case it is seen that cause of action in previous suit was based on a document whereas subsequent suit for partition was filed on basis of a claim arising on death of an ancestor and therefore it was held that cause of action in two suits were materially different and as cause of action for partition was a continuing cause of action, it was held that bar under Order II Rule 2 would not be attracted and hence, period of limitation prescribed under Article 65 would not apply. Learned counsel also relied upon decision in Vishwanatha Achari's case (Supra) to contend that said objection was not raised before trail Court and no issue framed and decided. It was submitted that provision of Section 107 of CPC, under such circumstances, mandated a remand to trial Court in order to give defendant opportunity to 20 evidence on said issue. Therefore, points that arise for consideration in this appeal are:
1.Whether the instant case is hit by Order II Rule 2 of CPC even when subject matter of the subsequent suit for partition was different and not included in the previous suit for partition?
2.Whether additional issue can be raised and considered by appellate Court under Section 107 of CPC without remanding matter to trial Court?
3.Whether the judgment and decree passed by the trial Court is perverse or suffers from material irregularity or whether there is miscarriage of justice calling for interference by this Court?
18. From perusal of plaint in O.S.No.209/2000 Ex.P.17, and plaint in this case, it is indeed seen that relief sought in both is for partition and separate possession of plaintiff's share in joint family property. Though previous suit had some more parties in addition to all parties to present suit and though previous suit did not include present suit properties, as per decision in Shankar Sitaram Sontakke's case cause of action in a suit for partition is desire of plaintiff to separate from joint 21 family. Therefore, it has to be held that cause of action in previous suit and present in this case are one and same.
19. The fact that the suit schedule properties in this suit were not included would not make any difference as provisions of Order II Rule 2 would be attracted, even where plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim and he would thereafterwards be barred from suing in respect of portion so omitted or relinquished.
20. Even the fact that in the prior case plaintiff had sought partition and separate possession of her share in the joint family properties, against her brother and uncles would also not make any difference as her intention was to have her share in joint family property separated and given to her. Omission to include all joint family properties in previous suit is totally unexplained. There is not even a semblance of a plea that such omission was with leave of Court as mandated under Rule 3 of Order II. 22
Moreover defendants also produced Ex.D1, memo dated 19.09.2000 to which plaintiff in this suit was also a signatory wherein she has given up her right in respect of joint family properties and consented for compromise of said suit. The provisions of Order II Rule 1 and 2 require plaintiff to agitate all claims arising out of cause of action in same suit. Any omission except with leave of Court is deemed to have been relinquished and bars to sue in respect of same, subsequently. Though learned counsel for respondents strenuously argued that contents of Ex.D1, memo mentions that relinquishment is confined to subject matter in the said suit, by virtue of presumption mentioned above, relinquishment has to be held to be enlarged with regard to entire claim based on same cause of action. On this count also the bar under Order II Rule 2 would apply.
21. For the foregoing reasons point Nos. 1 and 3 are answered in affirmative and in favour of appellants. 23
22. For answering point No.2, brief reference to Section 107 of CPC is necessary. It reads as under:
"Section 107 : (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power -
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them
for trial;
(d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
Sub-Section (1) (c) of Section 107 states that appellate Court has power to frame issues and refer them for trial. At the same time sub-Section (1)(a), empowers appellate Court to determine a case finally. Though learned counsel for respondents relied upon decision in Vishwanatha Achari's case, in support of his proposition of law that where appellate Court finds framing of an additional issue is necessary for proper disposal of suit, it may do so but on framing additional issue remand it for 24 trial. But in the absence of any denial of the foundational facts attracting provisions of Order II Rule 2, and parties placing plaint in prior suit on record, there is little scope for any evidence being led by parties with regard to the issue. The evidence already on record is sufficient to decide the additional issue also as per provisions of Order 41 Rule 24 of CPC. The Hon'ble Supreme Court in the case of Ashwinkumar K. Patel Vs. Upendra J. Patel and others reported in AIR 1999 SC 1125, has held that where there is sufficient evidence on record to decide the additional issue framed by appellate Court, it can decide it without remanding matter for trial. Thus, it is held that the provisions of Section 107 of CPC do not mandatorily require remand if appellate Court frames additional issue, which was not framed and decided by trial Court, if additional evidence is not required and evidence already on record is adequate to decide the same. Point No.2 is accordingly answered in the affirmative and in favour of appellants.
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23. In the result, appeal is allowed, impugned judgment and decree passed by trial Court is set aside and suit in O.S.No.317/2011 is dismissed.
No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE CLK/BVK