M Vasantha Nayak vs M Srinivasa Nayak
2023 Latest Caselaw 5417 Kant

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                                                         NC: 2023:KHC:27912
                                                        RSA No. 357 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 8TH DAY OF AUGUST, 2023

                                           BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 357 OF 2023 (POS)

                   BETWEEN:

                   1.    M. VASANTHA NAYAK
                         S/O RAMANATHA NAYAK
                         AGED ABOUT 60 YEARS,
                         R/AT H.SEETHARAMA BHAT COMPOUND
                         COURT ROAD, PUTTUR POST,
                         PUTTUR, D.K. - 574 201.
                                                            ...APPELLANT
                                  (BY SRI M.J.ALVA, ADVOCATE)
                   AND:

                   1.    M. SRINIVASA NAYAK
                         S/O RAMANATHA NAYK
                         AGED ABOUT 56 YEARS,
                         R/AT H.SEETHARAMA BHAT COMPOUND
Digitally signed
                         COURT ROAD, PUTTUR POST,
by SHARANYA T            PUTTUR, D.K. - 574 201.
Location: HIGH                                               ...RESPONDENT
COURT OF
KARNATAKA
                        (BY SRI CHANDRANATH ARIGA K., ADVOCATE FOR C/R)

                        THIS RSA IS FILED UNDER SECTION 100 OF CPC
                   AGAINST THE JUDGMENT AND DECREE DATED 06.12.2022
                   PASSED IN R.A.NO.11/2021 ON THE FILE OF THE PRINCIPAL
                   SENIOR CIVIL JUDGE AND JMFC, PUTTUR, TALUK, D.K.
                   DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
                   AND DECREE DATED 15.03.2021 PASSED IN O.S.NO.191/2010
                   ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC,
                   PUTTUR, D.K.
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                                              NC: 2023:KHC:27912
                                            RSA No. 357 of 2023




     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

Heard the appellant's counsel and also the counsel

appearing for the respondent.

2. The respondent counsel in the previous occasion made

the submission that in view of the judgment and decree of the

Trial Court and also decree of the First Appellate Court

possession is taken and to that effect memo is also filed. The

counsel for the appellant would submit that the finding given by

the Trial Court as well as the First Appellate Court should not

come in the way in disposal of the suit which is filed for the

relief of partition. Both the counsels not disputes the fact that

suit is pending for the relief of partition before the Trial Court.

When such being the circumstances and also counsel appearing

for the appellant relies upon the judgment ILR 2014 KAR

1444 regarding nomenclature of the document cannot be

looked into, contents of the documents are paramount, and

though the document is styled as settlement deed and recital of

the documents is nothing but a gift deed and no acceptance.

NC: 2023:KHC:27912 RSA No. 357 of 2023

3. The said contention is kept open and the parties can

raise all grounds which have been urged before the Trial Court

as well as the First Appellate Court and while the Trial Court

disposing the matter for suit for partition shall not influence

with the findings of the Trial Court as well as the First Appellate

Court with regard to seeking the relief of partition and only an

order has been passed for delivery of possession and decree

already been executed by taking the possession in terms of the

memo filed before this Court.

4. With these observations, the second appeal is disposed

of.

All contentions are kept open to the parties to raise the

same in a partition suit.

Sd/-

JUDGE

AP