Ganganarasamma vs Jayamma @ Jayalaxmi L.N
2022 Latest Caselaw 7636 Kant

                        1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 30TH DAY OF MAY, 2022

                     BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

   WRIT PETITION NO.13507 OF 2015(GM-CPC)

BETWEEN:

1. GANGANARASAMMA
W/O GANGAPPA,
AGED ABOUT 55 YEARS,
D/O LATE RANGAPPA @ RANGAIAH,
OCC:HOUSE WIFE,

2 . THULASAMMA
W/O THIMMAPPA,
AGED ABOUT 50 YEARS,
D/O LATE RANGAPPA @ RANGAIAH,
OCC:HOUSE WIFE,

3. RANGAMMA @ LAXMI
W/O NARAYANA,
AGED ABOUT 46 YEARS,
D/O LATE RANGAPPA @ RANGAIAH,
OCC:HOUSE WIFE

4. PADMA
W/O ASHWATHAPPA,
AGED ABOUT 43 YEARS,
D/O LATE RANGAPPA @ RANGAIAH,
OCC:HOUSE WIFE

5. L.R.RAJU
S/O RANGAPPA @ RANGAIAH,
                         2


AGED ABOUT 40 YEARS,
OCC:AGRICULTURIST

(ALL ARE R/AT PIPE LINE ROAD,
THAVAREKERE HOBLI,
LAKKUPPE VILLAGE, BENGALURU SOUTH TALUK,
BENGALURU RURAL DISTRICT.

                                    ...PETITIONERS

(BY SRI. SHEKARAPPA B, ADVOCATE)

AND:

1. JAYAMMA @ JAYALAXMI L.N.
W/O NAGARAJ,
D/O LATE NARASIMHAIAH,
AGED ABOUT 36 YEARS,
OCC:HOUSE HOLD, R/O NO.181,
OPP: URDU SCHOOL,
MANGALYA CHOULTRY ROAD,
DARGA JOGIHALL, DODDABALLAPURA TALUK,
BENGALURU RURAL DISTRICT-561 203.

2. GANGALAXMAIAH
AGED ABOUT 60 YEARS

3. RAMU
AGED ABOUT 58 YEARS

4. LAXMANA
AGED ABOUT 50 YEARS

(ALL ARE CHILDREN OF LATE. GANGAMMA
D/O NARASIMHAIAH, MAJOR, HINDUS AND
R/O AGARA, THATHAGUNI POST, KENGERI HOBLI,
KANAKAPURA ROAD,
BENGALURU RURAL DISTRICT-560 060)
                          3


5. RANGAMMA
W/O LATE GANGANARASIMAHAIAH,
AGED ABOUT 70 YEARS,
OCC:HOUSE WIFE

6. BHAGYA
D/O LATE GANGANARASIMHAIAH,
AGED ABOUT 53 YEARS,
OCC:HOUSE WIFE

7. SHARADA
D/O LATE GANGANARASIMHAIAH,
AGED ABOUT 52 YEARS,
OCC:HOUSE WIFE

8 . SURESHA
S/O LATE GANGANARASIMHAIAH,
AGED ABOUT 50 YEARS

9. CHIKKEGOWDA
S/O LATE GANGANARASIMHAIAH,
AGED ABOUT 48 YEARS

(ALL ARE R/AT LAKKUPPE VILLAGE,
TAVAREKERE POST, MAGADI ROAD,
BENGALURU SOUTH TALUK-562 130.

10. CHENNAMMA
W/O LATE NARASIMHAIAH,
AGED ABOUT 60 YEARS,
OCC:HOUSE WIFE

11. NEELA
W/O ANDANAPPA,
D/O LATE NARASIMHAIAH,
AGED ABOUT 40 YEARS,
OCC:HOUSE WIFE
                            4


12. UMESHA
S/O LATE NARASIMHAIAH,
AGED ABOUT 42 YEARS

13. NAGARATHNA
W/O KRISHNAPPA,
D/O LATE NARASIMHAIAH,
AGED ABOUT 38 YEARS,
OCC:HOUSE WIFE

(ALL ARE R/AT LAKKUPPE VILLAGE,
NEAR WATER TANK,
THAVAREKERE POST-562 130,
BENGALURU SOUTH TALUK,
BENGALURU RURAL DISTRICT)

14. RANGAIAH @ RANGASWAMY
66 YEARS, S/O LATE THIRUMALAIAH
R/O NO.1, 9TH BLOCK,
VISHWESHWARAIAH LAYOUT,
FURTHER EXTENSION,
MALLATHAHALI, (BEHIND KANYAKUMARI SCHOOL),
NEAR AGRO FORTUNE INDUSTRIES,
BENGALURU-560 056.

15. LAXMANAPPA
S/O LATE NARASIMHAIAH,
AGED ABOUT 64 YEARS,
OCC: RETIRED EMPLOYEE,
R/O NO.A-204, TEMPLE MEADOWS APARTMENT,
BSK 2ND STAGE, 27TH CROSS,
BANGALORE-560 070.

16. S.BHAGEERATHA
S/O LATE H.SADASHIVAIAH,
AGED ABOUT 41 YEARS,
OCC:BUSINESS,
R/O KADABAGERE VILLAGE
                         5


AND POST, DASANAPURA HOBLI,
BENGALURU NORTH-562 130.

17. V.RAMESH
S/O VENKATAHANUMAIAH,
AGED ABOUT 28 YEARS,
OCC:BUSINESS,
R/O CHANNENAHALLI VILLAGE,
KADABAGERE POST, TAVAREKERE HOBLI,
MAGADI MAIN ROAD,
BANGALORE SOUTH-562 130

18. UMASHANKAR
S/O ANDANAPPA,
AGED ABOUT 46 YEARS,
OCC:BUSINESS,
R/O CHENNENAHALLI VILLAGE,
KADABAGERE POST, TAVAREKERE HOBLI,
MAGADI MAIN ROAD,
BANGALORE SOUTH-562 130.

19. C.H.SURESH
S/O LATE HANUMANTHAIAH,
AGED ABOUT 37 YEARS,
OCC:BUSINESS,
R/O CHANNENAHALLI VILLAGE,
KADABAGERE HOBLI, MAGADI MAIN ROAD,
BANGALORE SOUTH-562 130.

                                     ...RESPONDENTS

(BY SRI.B.M HALASWAMY, ADVOCATE FOR R1;
SRI.B.S.JEEVAN KUMAR, ADVOCATE FOR R16)


     THIS PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH TE
IMPUGNED ORDER DT.27.2.2015 VIDE ANNX-M PASSED
IN O.S.NO.775/2014 ON I.A.NO.14 FILED BY TE
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              PETITIONERS FOR STAY OF SUIT U/S 10 OF CPC BY TE
              LEARNED SENIOR CIVIL JUDGE & JMFC, AT MAGADI.

                   THIS PETITION COMING ON FOR PRELIMINARY
              HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
              FOLLOWING:

                                        ORDER

The captioned writ petition is filed by the

defendants 4 to 8 questioning the order dated

27.02.2015 passed on I.A.No.14 filed under Section

10 read with Section 151 of CPC, whereby the

learned Judge of the Trial Court has rejected the

same.

2. It would be useful for this Court to cull out

the family tree of the parties, which is as under:

Late Rangaiah @ Rangegowda (Dead Long Back) Late Rangamma (Wife)(Dead Long Back) | | | Late Thirumalaiah @ Thirumale Gowda Late Magadaiah(dead long back) (Dead-1953 60 years) Late Lakamma(Wife-dead long back) Late Putta Narasamma(Wife-Dead 1963 55 Years) Late(Died Issue less) | Late Narasimhaiah 1979(dead) Late Hanumakka(Wife) 1993 (dead) | |

| | | | | | | | Late Gangamma Late [email protected] L.Ganganarasimaiah Late Narasimhaiah [email protected] Laxmanappa(64 yrs) (Dead1966) (dead-2005) (Dead) (Dead-1978) Late Chikkanna Late kalamma Rangamma Chennamma Rangaswamy (D19) (Dead-1978) (Wife dead 2000) (wife 70 yrs) (wife 60 yrs) (66 Yrs) (D9) (D14) (D18) | | | | | | | | | | | Gangalaksmaiah Ramu(58Y) Laxmana(50Y) Umesha(42Y) Neela(40Y) Nagarathna(38Y) L.N.Jayamma(36Y) (60Y) (D1) (D2) (D3) (D15) (D16) (D17) @Jayalaxmi(Plaintiff)

| | | | Bhagya(53Y) Sharadha(52Y) Suresh(50Y) Chikkegowda(48Y) (D10) (D11) (D12) (D13)

| | | | | Ganganarasamma [email protected](50Y) Rangamma(46Y) Padma(43Y) Raju(40Y) (55Y) (D4) (D5) @Laxmi(D6) (D7) (D8)

3. The present partition suit in

O.S.No.775/2014 is filed by plaintiff-respondent No.1

herein seeking partition and separate possession in

the suit schedule properties.

3(a) The grievance of the petitioners is that the

present suit for partition is not at all maintainable.

The petitioners' claim that plaintiff's mother namely

Chennamma was a party to the earlier partition suit

bearing No.83/1989(old No.37/1978). The

petitioners' contend that the said suit was decreed by

the judgment and decree dated 31.7.1996. Feeling

aggrieved by the same, the petitioners' father namely

Rangappa @ Rangaiah s/o.Narasimhaiah preferred

regular appeal in R.A.No.24/1996. The occasion to

question the preliminary decree in O.S.No.83/1989 by

the petitioners' mother was that the Trial Court

ignoring the defence set up by the petitioners' father

decreed and granted share even in respect of

properties which were claimed as self acquired

properties of Rangappa. The Appellate Court in

R.A.No.34/1996 accepted the contentions raised by

the petitioners father herein and consequently, set

aside the judgment and decree insofar as item Nos.7

to 13 of Schedule "A" are concerned in the earlier suit

i.e.O.S.No.83/1989. The said judgment and decree of

the Appellate Court was questioned in second appeal

before this Court in RSA.No.367/2005 by the plaintiff

in the earlier proceedings i.e.Umashankar, who is

defendant No.18 in the present suit. This Court

concurred with the findings of the Appellate Court and

proceeded to dismiss the appeal by judgment and

decree dated 13.9.2011.

3(b) Relying on the aforesaid judgment and

decree rendered by a Co-ordinate Bench of this Court,

the petitioners' contend that the present plaintiff who

is the daughter of Chennamma, who was party to the

earlier suit cannot maintain the present suit on same

set of facts and therefore, they filed an application

under Section 10 of CPC to stay the proceedings in

view of final decree proceedings pending consideration

in FDP.No.9/2014. The learned Judge has rejected

the said application. Hence, the present petition by

defendants 4 to 8.

4. Heard the learned counsel for the

petitioners and the learned counsel appearing for the

first respondent-plaintiff. Perused the order under

challenge.

5. The learned Judge has rejected the

application on the premise that final decree

proceedings pending in FDP.No.9/2014 is still at its

infancy stage and the same would take considerable

time in resolving equitable rights of the parties to the

FDP Proceedings and further, there is no certainty as

to when the FDP proceedings would conclude.

6. The order under challenge needs to be

tested by this Court in the light of the preliminary

decree modified by the Appellate Court in

R.A.No.34/1996. The earlier suit for partition was

filed by one Rangaiah alias Rangaswamy. In the said

suit, the first respondent-plaintiff's mother namely

Chennamma was arrayed as defendant No.4. The

preliminary decree modified by the lower Appellate

Court in R.A.No.34/1996 is accepted by Chennamma

in the earlier round of litigation and she has not

questioned the same. Therefore, the preliminary

decree in the earlier partition suit which was modified

by the appellate authority in R.A.No.34/96 is

confirmed by this Court in RSA.No.367/2005 and

thereby the decree has attained finality. In terms of

the judgment and decree passed by the lower

Appellate Court in R.A.No.34/96, item Nos.7 to 13 are

held to be the self acquired properties of late

Rangappa alias Rangaiah who is none other than the

father of petitioners herein. The said judgment and

decree would bind not only Chennamma but it would

also bind the present plaintiff.

7. It is quite unfortunate that the learned

Judge has not examined the effect of decree passed in

earlier round of litigation. The material on record

would clearly indicate that the present plaintiff

represents the branch of late Narasimhaiah who is one

of the sons of Thirumalaiah i.e. brother of plaintiff in

earlier suit and also brother of petitioners father

Rangaiah. On meticulous examination of the records,

this Court would find that there was effective

representation. The branch of Narasimhaiah was

represented by his widow Chennamma and also the

siblings of the present plaintiff namely Umesh, Neela

and Nagarathna who are arrayed as defendants 4, 5,

6 and 7. Plaintiff's branch has already suffered decree

passed by the appellate Court in R.A.No.34/96 and

item Nos.7 to 13 are held to be the self acquired

properties of petitioners' father, the said decree has

attained finality. Therefore, the present plaintiff only

on the premise that she was a minor i.e. one month

baby when the earlier suit for partition was filed and

as she was not a party, cannot relitigate on the same

cause of action by filing one more suit. There was no

impediment for Chennamma to report to the Court

that late Narasimhaiah is survived by one more Class-

I heir i.e. the present plaintiff. The said recourse was

not adopted by the plaintiff's mother and brothers in

the earlier round of litigation. Therefore, the modified

decree of the Appellate Court in R.A.No34/96 would

also bind the plaintiff. The present suit on the same

set of pleadings is nothing but a sheer abuse of

process. All these significant details are not taken into

consideration by the learned Judge. If the present

suit itself is not maintainable, no purpose would be

served in allowing the plaintiff to prosecute a frivolous

suit which in all probability appears to have been filed

at the instigation of other family members who have

tried to take advantage of the fact that the present

plaintiff was not a party to the earlier partition suit.

The final decree proceedings are already pending in

FDP.No.9/2014. Therefore, this Court is of the view

that the proceedings pending in O.S.No.775/2014 are

liable to be stayed insofar as item Nos.7 to 13 of

Schedule 'A" properties are concerned.

8. For the foregoing reasons, I proceed to

pass the following:

ORDER

The writ petition is allowed. The impugned order

dated 27.2.2015 passed on I.A.No.14 filed under

Order Section 10 of CPC in O.S.No.775/2014 by the

Senior Civil Judge and JMFC, Magadi is set aside. I.A

No.14 is allowed.

Further proceedings in O.S.No.775/2014 are

stayed till the rights of the parties are adjudicated in

FDP.No.9/2014.

Sd/-

JUDGE *alb/-