Karnataka High Court
Gouravva Alias Gouramma W/O ... vs Kallayya S/O Basayya Kannikoppa ... on 7 January, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH AT
DHARWAD
DATED THIS THE 07TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM
C.R.P.NO.100007/2021
BETWEEN
GOURAVVA @ GOURAMMA
W/O BASAYYA TIGADIMATH,
AGE: 65 YEARS,
OCC. HOUSEWIFE,
R/O: NEAR GANAPATI TEMPLE,
KELAGERI,
DHARWAD-07.
... PETITIONER
(BY SRI R.H.ANGADI, & SRI JOSHNA P.DHANAVE, ADVTS.)
AND
1. KALLAYYA
S/O BASAYYA KANNIKOPPA @ HIREMATH
AGE: 62 YEARS,
OCC. NIL,
R/O. KELAGERI,
DHARWAD-07.
2. NAGAYYA
S/O BASAYYA KANNIKOPPA @ HIREMATH,
AGE: 55 YEARS,
OCC. NIL,
R/O. KELAGERI,
DHARWAD-07.
3. KUMARI RADHA
D/O SIDDALINGAYYA KANNIKOPPA @ HIREMATH,
AGE: 29 YEARS,
OCC. HOUSEHOLD WORK,
R/O. KELAGERI,
DHARWAD-07.
2
4. SMT.BASAVVA CALLING HERESELF
W/O. SIDDALINGAYYA KANNIKOPPA @ HIREMATH,
AGE: 42 YEARS,
OCC. HOUSEHOLD WORK,
R/O. KELAGERI,
DHARWAD-07.
5. KUMAR VINAYAK CALLING HIMSELF
S/O. SIDDALINGAYYA KANNIKOPA @ HIREMATH,
AGE: 26 YEARS,
OCC. STUDENT,
R/O. KELAGERI,
DHARWAD-07.
6. SMT.SHRIDEVI
W/O MANJAYYA KANNIKOPPA @ HIREMATH,
AGE: 55 YEARS,
OCC. HOUSEHOLD WORK,
R/O KELAGERI,
DHARWAD-07.
7. SUNIL
S/O MANJAYYA KANNIKOPPA @ HIREMATH,
AGE: 30 YEARS, OCC. AGRICULTURE,
R/O. KELAGERI,
DHARWAD-07.
8. SANDEEP
S/O. MANJAYYA KANNIKOPPA @ HIREMATH
AGE: 28 YEARS, OCC. AGRICULTURE,
R/O. KELAGERI,
DHARWAD-07.
... RESPONDENTS
(NOTICE TO RESPONDENT NO.3 : SERVED)
(BY SRI HANAMANT R.LATUR ADV. FOR R.1, R2 & R.4 TO 8)
THIS PETITION IS FILED UNDER SECTION 115 OF THE
CODE OF CIVIL PROCEDURE, 1908 PRYING THIS COURT TO SET
ASIDE THE ORDER DATED 21.10.2020 PASSED ON ISSUE NO.4,
IN O.S.NO.111/2018 BY THE PRINCIPAL SENIOR CIVIL JUDGE
AND CJM, DHARWAD AND CONSEQUENTLY RESTORE THE SUIT,
TO MEET THE ENDS OF JUSTICE.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
3
: ORDER :
Though this petition is listed for admission, with
the consent of learned counsel appearing for both the
parties, the same is taken up for final disposal.
2. The caption revision petition is filed
assailing the order dated 21.10.2020 passed on
preliminary issue No.4 in regard to maintainability of
the suit on the ground of dismissal of the earlier suit
for partition for non prosecution.
3. Learned judge, having heard the rival
contentions of the parties, was of the view that the
earlier suit for partition filed by the petitioner herein in
O.S.No.439/2014 was dismissed for non prosecution.
The Civil Miscellaneous Petition which was filed
Civil.Misc.No.21/2017 seeking restoration of suit was
also dismissed for non prosecution. Therefore, the
learned Judge having examined these relevant facts
was of the view that the petitioner cannot maintain
the present suit and if permitted it will set a bad
example and would encourage litigants in filing
multiple suits. On these set of reasonings, learned
judge has rejected the application, which is called in
question before this Court.
4. Heard learned counsel for the petitioner
and learned counsel appearing for the respondents.
Perused the materials on record.
5. The petitioner to substantiate his claim,
reiterating the grounds urged in the revision petition
has placed reliance on the judgments rendered by this
Court in RSA.No.1375/2005 and also in the case of
Baburao Vs. Eranna and others reported in ILR
2005 KAR 3177.
6. Perused the order under challenge and also
the judgment cited by the learned counsel appearing
for the petitioner. Admittedly, the previous suit which
was one for partition and separate possession was
dismissed for non prosecution. Therefore, there was
no adjudication on merits. If there is no adjudication
of rights, what presupposes is that the present
petitioner and respondents continue to constitute an
undivided Hindu family. If there is no partition and
severance in the family, every member of an Hindu
family is having pre-existing right in ancestral
property by birth. Unless there is severance in the
family either orally or through Court proceedings, the
cause of action to seek partition continues to survive.
This issue is no more res-integra. The Division Bench
of This Court in the case of S.K.Lakshimnarasappa and
others Vs. B.Rudriah and others reported in 2013 (1)
KCCR 672 has held that, the suit for partition
dismissed for default does not bar a subsequent suit
for partition. The principle that was laid down by the
Division Bench in the case was that the right to
enforce a partition is a continuous right, which is a
legal incident of a joint tenancy and which enures so
long as the joint tenancy continues and so long as the
property is held jointly. In that view of the matter, I
am of the view that, the order under challenge suffers
from legal infirmities, material irregularity and
therefore is not sustainable.
7. The materials on record clearly
demonstrate laxness on the part of the petitioner in
not diligently prosecuting the earlier suit. This has
ultimately resulting in dragging the respondents in
second round of litigation and has invariably caused
hardship. The same can be compensated by imposing
cost on the petitioner/plaintiff. Therefore, I proposed
to award a sum of Rs.5,000/- payable to respondents
/defendants by the petitioner/plaintiff on the next date
of hearing. For the reasons stated supra, I proceed to
pass the following:
: ORDER :
a. The revision petition is hereby allowed.
b. The order dated 21.10.2020 passed on
Issue No.4 in O.S.No.111/2018 by the
Principal Senior Civil Judge and CJM,
Dharwad is set aside.
c. The petitioner/plaintiff is entitled to
proceed with the suit only on depositing
cost Rs.5,000/-, which shall be paid
directly to the respondents/defendants
on the next date of hearing.
Sd/-
JUDGE
EM
