Karnataka High Court
Shivashankreppa S/O Sidramappa ... vs Shivabasappa S/O Sadashivappa ... on 18 July, 2023
Bench: N.S.Sanjay Gowdapresided Bynssgj
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NC: 2023:KHC-K:5463
MSA No. 200085 of 2015
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
MSA NO. 200085 OF 2015 (RES)
BETWEEN:
SHIVASHANKREPPA
S/O SIDRAMAPPA HANGANDI
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O SAVANALLI
TQ. & DIST. VIJAYPUR-586101
...APPELLANT
(BY SRI KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE)
AND:
1. SHIVABASAPPA
Digitally signed by
RAMESH MATHAPATI
S/O SADASHIVAPPA HANGANDI
Location: HIGH
COURT OF
AGE: 75 YEARS, OCC: AGRICULTURE,
KARNATAKA
R/O SAVANALLI,
TQ & DIST: VIJAYAPUR-586 101
SINCE DECEASED BY LRS.
1A. NEELAWWA
W/O SHIVABASAPPA HANGANDI
AGE: 75 YEARS, OCC: AGRICULTURE
R/O SAVANALLI,
TQ. & DIST.VIJAYAPUR-586101
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MSA No. 200085 of 2015
1B. GURUPADAPPA
S/O LATE SHIVABASAPPA HANGANDI
AGE: 45 YEARS, OCC: AGRICULTURE
R/O SAVANALLI,
TQ. & DIST.VIJAYAPUR-586101
1C. ANNEPPA
S/O LATE SHIVABASAPPA HANGANDI
AGE: 40 YEARS, OCC: SERVICE
R/O SAVANALLI,
TQ. & DIST.VIJAYAPUR-586101
1D. BORAWWA
W/O JAGAPPA HANAGANDI
AGE: 35 YEARS, OCC: HOUSEHOLD
R/O SAVANALLI,
TQ. & DIST.VIJAYAPUR-586101
1E. SADASHIV S/O JAGAPPA HANAGANDI
AGE: 12 YEARS, HIS MINOR
GUARDIAN MOTHER OF BORAWWA
W/O JAGAPPA HANAGANDI
1F. KALLAWWA
W/O SADASHIVAPPA HALLAD
AGE: 32 YEARS, OCC: HOUSEHOLD
R/O MAHAL AINAPUR,
TQ. & DIST.VIJAYAPUR-586101
1G. CHANNAWWA
W/O TUKARAM HALLAD
AGE: 42 YEARS, OCC: HOUSEHOLD
R/O MAHAL AINAPUR,
TQ. & DIST. VIJAYAPUR-586101
1H. BASAWWA W/O LAXMAN BIRADAR
AGED ABOUT 35 YEARS,
OCC: HOUSEHOLD
R/O NAGARAL (DON), TQ.SINDAGI
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MSA No. 200085 of 2015
DIST. VIJAYAPUR
2. KASTURIBAI W/O SASU HANGANDI
AGE: 60 YEARS, OCC: HOUSEHOLD,
R/O SAVANALLI,
TQ. & DIST. KALABURAGI-586101.
3. SIDDAWWA W/O BASAPPA HALLAD
AGE: 60 YEARS, OCC: HOUSEHOLD,
R/O MAHAL AINAPUR,
TQ. & DIST. VIJAYPUR-586 101.
4. DYAMAGOND S/O SABU HANAGANDI
AGE: 50 YEARS, OCC: ENGINEER,
R/O SAVANALLI,
TQ. & DIST. KALABURAGI-586101.
5. RATNAWWA
W/O SHRISHAIL ROMANALLI
AGE: 57 YEARS, OCC: TEACHER,
R/O MANGULI,
TQ. & DIST. VIJAYPUR-586101.
6. GURUPADAPPA S/O SABU HANGARANDI
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O SAVANALLI
TQ. & DIST. VIJAYPUR-586101.
7. BHARATI W/O BABU MALIKGOND
AGE:37 YEARS, OCC: HOUSEHOLD WORK,
R/O MASALI, TQ: INDI,
DIST: VIJAYPUR-586101.
...RESPONDENTS
(BY SRI.VINAYAK APTE, ADVOCATE FOR R1(A) TO R1(H);
V/O DATED 31.01.19 R1(D) IS APPOINTED AS GUARDIAN OF
R1(E); V/O DATED 02.11.15 NOTICE TO R2 TO R7 ARE
DISPENSED WITH)
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MSA No. 200085 of 2015
THIS MSA IS FILED U/S. XLIII RULE 1(U) OF THE CPC,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 05.08.2015 PASSED BY THE
PRL. SENIOR CIVIL JUDGE VIJAYPUR IN R.A.NO.4/2013 AND
CONFIRM THE JUDGMENT OF THE TRIAL COURT IN
O.S.NO.561/2010 PASSED BY PRL. CIVIL JUDGE (JR.DN)
BIJAPUR DATED 13.12.2012.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. A suit for partition was filed by Shivabasappa--
respondent No.1 herein. After contest, the said suit was
dismissed.
2. As against the dismissal, an appeal was preferred by
Shivabasappa. In the appeal, the Appellate Court noticed
that the suit for a partition has been filed without
impleading all the necessary parties and therefore, it
proceeded to set aside the judgment and decree of the
Trial Court and remanded the matter to the Trial Court to
afford an opportunity to Shivabasappa to implead all the
necessary parties, as observed in its judgment, and
thereafter to dispose off the same in accordance with law.
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MSA No. 200085 of 2015
3. It is against this judgment of remand, the present
second appeal has been filed.
4. The learned counsel appearing for the appellant
strenuously contended that there was absolutely no
justification for remanding the matter to the Trial Court
when the plaintiff was aware about the need to implead all
the necessary parties and yet had not chosen to do the
same. An argument was also advanced that the Appellate
Court was required to give a finding on all the issues.
5. The Appellate Court, on re-appreciation of the entire
evidence, has taken the view that a suit for a partition
would not be maintainable since all the necessary parties
had not been impleaded and in order to ensure that the
said technical defect was cured, it has remanded the
matter to the Trial Court and permitted the plaintiff to
implead all the necessary parties.
6. In my view, this reasoning of the Appellate Court
cannot be found fault with.
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MSA No. 200085 of 2015
7. The argument of the learned counsel that the plaintiff
would have to suffer the consequence of not impleading all
the necessary parties in the suit, cannot also be tenable
since this is a curable defect and the Trial Court itself
ought to have granted an opportunity to the plaintiff
implead all the necessary parties.
8. In this view of the matter, I find no question of law
as such arising for consideration in this second appeal and
the same is accordingly dismissed.
9. However, having regard to the fact that the suit is of
the year 2010, it would be appropriate to direct the Trial
Court to dispose off the suit within a period of nine months
from the date of receipt of a copy of this judgment.
Sd/-
JUDGE
RK
CT: M
