Karnataka High Court
Sri. B T Umeshagowda vs Smt. B T Vinutha on 5 March, 2022
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.33054 OF 2019 (GM-CPC)
BETWEEN:
1. SRI. B.T. UMESHAGOWDA
@ B.T.UMESH
S/O B.G. THIMMANNA
AGED ABOUT 41 YEARS.
2. SRI. B.T. KRISHNEGOWDA
S/O B.G. THIMMANNA
AGED ABOUT 39 YEARS.
BOTH ARE RESIDENTS OF
THIMMANNAHALLY
JUNJARAGUNTE POST,
PARASHURAMAPURA HOBLI,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 522.
...PETITIONERS
(BY SRI. SIDDAPPA B.M., ADVOCATE)
AND:
1. SMT. B.T. VINUTHA
D/O THIMMANNA
W/O V. THIMMAPPA,
AGED ABOUT 30 YEARS
RESIDING AT THIMMANNAHALLY,
JUNJARAGUNTE POST,
PARASHURAMAPURA HOBLI,
2
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 522.
2. SMT. B.T. VAISHALI
D/O B.G. THIMMANNA
AGED ABOUT 29 YEARS
RESIDING AT THIMMANNAHALLY,
JUNJARAGUNTE POST,
PARASHURAMAPURA HOBLI,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 522.
3. SRI. B.G. THIMMANNA
S/O BANDI GUJJARAPPA
AGED ABOUT 67 YEARS
RESIDING AT THIMMANNAHALLY,
JUNJARAGUNTE POST,
PARASHURAMAPURA HOBLI,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 522.
....RESPONDENTS
(BY SRI. SRIDHAR BELAGUMBA, ADVOCATE FOR R1 AND R2;
SRI. N.D. JAYADEVAPPA, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF
CERTIORARI OR ANY OTHER WRIT ON ORDER DATED 19TH JUNE,
2019 PASSED ON IA NO.II IN REGULAR APPEAL NO.27 OF 2017
BY THE LEARNED II ADDITIONAL DISTRICT JUDGE,
CHITRADURGA, PRODUCED AS ANNEXURE-E; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
3
ORDER
This writ petition is filed by respondents 1 and 2 in Regular
Appeal No.27 of 2017 on the file of the Principal District and
Sessions Judge, Chitradurga, challenging the order dated 19th
June, 2019, allowing IA.II filed by respondents 3 and 4 therein.
2. The brief facts for adjudication of this writ petition are
that the petitioners herein are the plaintiffs in Original Suit No.33
of 2016 on the file of the Senior Civil Judge and JMFC.,
Challakere (for short, hereinafter referred to as 'trial Court').
The suit is filed for partition with separate possession in respect
of the suit schedule property. The said suit came to be decreed
on 24th March, 2017, wherein the trial Court observed that the
plaintiffs are entitled for partition and separate possession of
their one-third share each in the suit schedule property and
further held that the registered partition dated 16th November,
1995 is illegal and accordingly, plaintiffs 1 and 2 along with
defendants are entitled for one-third share each in the suit
schedule property. The said judgment and decree passed by the
trial Court was challenged by the defendant No.1 in Regular
Appeal No.27 of 2017 on the file of the II Additional District
Judge, Chitradurga. In the said appellate Court, one Smt.
B.T.Vinutha and Smt. B.T. Vaishali claims to be daughters of the
appellant have filed application under Order I Rule 10(2) read
with Section 151 of the Civil Procedure Code and sought to
implead them as respondents 3 and 4 in the appeal. The said
application was resisted by the plaintiffs. The First Appellate
Court after considering the material on record by its order dated
19th June, 2019 allowed IA.II and as such the impleading
applicants were arraigned as respondents 3 and 4. Being
aggrieved by the same, the plaintiffs/respondents 1 and 2 before
the First Appellate Court have presented this writ petition.
3. I have heard Sri. Siddappa B.M., learned counsel
appearing for petitioners.
4. Perusal of the writ petition would indicate that the
petitioners herein have filed suit for partition with separate
possession in Original Suit No.33 of 2016 on the file of the trial
Court which came to be decreed on 24th March, 2017. Being
aggrieved by the same, defendant has preferred Regular Appeal
No.27 of 2017 on the file of First Appellate Court. The first
appellate Court has passed the following order:
"Appellant Advocate present and
submitted as IA No.II may be allowed since R3
and R4 advocate also submitted as no objection
to IA.II on 12.06.2019.
Respondents No.3 and 4 are daughters of
appellant and respondents No.3 and 4 are also
entitled as co-shares as per Hindu Law. Hence,
IA.II is allowed.
Call on for amending the appeal memo
by 02/07"
5. Sri. Siddappa B.M., learned counsel appearing for
petitioners invited the attention of the Court to the finding
recorded by the trial Court on Additional Issues i and ii
particularly the paragraph 20 and submitted that the First
Appellate Court ought to have noticed the fact that the said
aspect has been rejected by the trial Court and therefore
allowing the IA.II by the First Appellate Court is contrary to law.
6. Having taken note of the arguments advanced by
learned counsel appearing for petitioners and taking into
consideration the finding recorded by the trial Court at
paragraph 20 in Original Suit No.33 of 2016, I am of the view
that the First Appellate Court has allowed the application,
however, no reason has been assigned by the First Appellate
Court. That apart, since the said aspect of the matter was
considered by the trial Court at paragraph 20 of the judgment
and decree in Original Suit No.33 of 2016, the First Appellate
Court ought to have accepted the IA.II to be heard along with
the main. In that view of the matter, I am of the view that the
order dated 19th June, 2019, allowing IA.II and arraigning the
impleading applicants as respondents 3 and 4 is not correct.
However, it is open for the impleading applicants to address
arguments on the merits of case before the First Appellate Court
and IA.II shall be considered along with main. Accordingly, writ
petition is disposed of.
Sd/-
JUDGE
ARK
