Citation : 2023 Latest Caselaw 2558 Kant
Judgement Date : 24 May, 2023
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WP No. 6527 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24 TH
DAY OF MAY, 2023
R
BEFORE
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
WRIT PETITION NO. 6527 OF 2023 (GM-CPC)
Between:
Smt. Lakshmamma
W/o. Late Chowdappa
D/o. Late Sanjeevappa
Aged about 72 years
R/at Thimmasandra Village
Sulibele Hobli,
Hoskote Taluk - 561201
...Petitioner
(By Sri Vijaya Krishna Bhat, Advocate for
Sri C.A.Ajith, Advocate)
And:
1 . Sri A.Shamanna
Digitally signed Aged about 88 years
by VEERENDRA
KUMAR K M S/o. Late Anjinappa
Location: HIGH R/at Chikkagubbi Village,
COURT OF Bidarahalli Hobli,
KARNATAKA
Bengaluru East Taluk
Bengaluru Urban District - 560049
2 . Smt. Akkamma
Aged about 86 years
W/o. Late Muniyappa @ Vadlappa
D/o. Late Anjinappa
R/at Hiranyapalya Village,
K.R.Pura Hobli,
Bengaluru East Taluk,
Bengaluru - 560077
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WP No. 6527 of 2023
3 . Sri M.A.Muniyappa
S/o. Late Anjinappa
Aged about 84 years
R/at Manduru Village
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
4 . Sri M.S.Ramamurthy
S/o. A.Shamanna
Aged about 62 years
R/at K.Narayanapura
K.R.Pura Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
5 . Sri M.S.Manjunath
S/o. A.Shamanna
Aged about 60 years
R/at Chikkagubbi Village
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
6 . Sri M.S.Nandakumar
S/o. A.Shamanna
Aged about 58 years
R/at Chikkagubbi Village
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
7 . Sri Mohan
S/o. M.A.Muniyappa
Aged about 42 years
R/at Manduru Village
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
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WP No. 6527 of 2023
8 . Smt. Gowramma
W/o. Narayanappa
D/o. Late G.Nanjappa
Aged about 74 years
R/at Jakkur Village
Jala Hobli, Bengaluru East Taluk
Bengaluru District
Bengaluru- 560049
9 . Sri Munianjinappa
S/o. Late G.Nanjappa
Aged about 72 years
R/at Manduru Village
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
Late M.N.Rajanna
Since dead by his LR's
10 . Smt. Renukamma
W/o. Late M.N.Rajanna
Aged about 60 years
R/at Manduru Village
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
11 . Sri Harsha
S/o. Late M.N.Rajanna
Aged about 40 years
R/at Manduru Village
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
12 . Smt. Maitri
W/o. Murthy
D/o Late M.N.Rajanna
Aged about 36 years
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WP No. 6527 of 2023
R/at Garakammanapalya
Bengaluru-561201.
13 . Smt. Thayamma
W/o. Late Munianjinappa
D/o. Late G.Nanjappa
Aged about 67 years
R/at Kanchiganala Village
Thoobigere Hobli
Doddaballapura Taluk
Bengaluru Rural District-561201
14 . Sri M.N.Krishnamurthy
S/o. Late G.Nanjappa
Aged about 65 years
R/at Manduru Village
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
15 . Sri M.Muralikrishna
S/o. N.Munianjinappa
Aged about 42 years
R/at Manduru Village
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
16 . Smt. M.Prathima
W/o. Narendra
D/o. N.Munianjinappa
Aged about 40 years
R/at Seegehalli Village
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
17 . Sri M.S.Muniraja
S/o. Late Sanjeevappa
Aged about 62 years
R/at Manduru Village
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WP No. 6527 of 2023
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
18 . Smt. Sunandamma
W/o. Pillanna,
D/o. Late Sanjeevappa
Aged about 60 years
R/at Kammasandra Village
Sulibele Hobli, Hoskote Taluk
Bengaluru Rural District-560049
19 . Sri M.S.Narayanaswamy
S/o. Late Sanjeevappa
Aged about 55 years
R/at Manduru Village
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
20 . Smt. Kempamma
W/o. Late M.S.Krishnappa
Aged about 68 years
R/at Manduru Village
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
21 . Smt. Neelamma
W/o. Manjunath
D/o. Late M.S.Krishnappa
Aged about 47 years
R/at K.Narayanapura
K.R.Pura Hobli,
Bengaluru East Taluk
Bengaluru Urban District - 560049
22 . Sri M.K.Murthy
S/o. Late M.S.Krishnappa
Aged about 45 years
R/at Manduru Village
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WP No. 6527 of 2023
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
23 . Sri Prasanna Kumar
S/o. Late M.S.Krishnappa
Aged about 41 years
R/at Manduru Village
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
24 . Smt. Kempamma
W/o. Late M.S.Nagarajappa
Aged about 58 years
R/at Manduru Village
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
25 . Ambarish,
S/o. Late M.S.Nagarajappa,
Aged about 38 years
R/at Manduru Village
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
26 . Smt. Geetha
W/o. Munikrishnappa,
D/o. Late M.S.Nagarajappa,
Aged about 34 years,
R/at Kurubara Kunte Village,
Kasaba Hobli,
Devanahalli Taluk,
Bengaluru Rural District-562110
27 . Smt. Vidya
W/o. Late Nagesh ,
Aged about 35 years
R/at Manduru Village
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WP No. 6527 of 2023
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
28 . Kumar Sanjay
S/o. Late Nagesh,
Aged about 16 years
R/at Manduru Village
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
29 . Kumari Shilpa
D/o. Late Nagesh
Aged about 12 years
R/at Manduru Village
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru Urban District - 560049
Respondent Nos.28 and 29 are Minor
Represented by their Natural Guardian
that is their Mother Smt. Vidya
the Respondent No.27 herein.
30 . Smt. Kamalamma
W/o. A.Shamanna
D/o. Late Hanumakka,
Aged about 80 years,
R/at Chikkagubbi Village,
Bidarahalli Hobli,
Bengaluru East Taluk
Bengaluru - 560049
Sampangamma
Since dead by her LR's
31 . Smt. Ramakka
W/o. Satyanarayana
D/o. Late Sampangamma
Aged about 62 years,
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WP No. 6527 of 2023
R/at K.Narayanapura,
K.R.Pura Hobli,
Bengaluru - 560077
32 . Smt. Prabhavathi
W/o. Chikkanna
D/o. Late Sampangamma
Aged about 60 years,
R/at Shanuboganahalli,
Jala Hobli,
Bengaluru North Taluk
Bengaluru Urban District-560077.
33 . Smt. Lalithamma
W/o. Late Govindappa,
D/o. Late Samapangamma
Aged about 58 years,
R/at K.Narayanapura
K.R.Pura Hobli,
Bengaluru - 560077
Sri Ramachandra
Since dead by his LR's
34 . Smt. Umadevi
W/o. Late Ramachandra
Aged about 50 years
35 . Sri Vinayraj
S/o. Late Ramachandra
Aged about 28 years
36 . Sri Vinodraj
S/o. Late Ramachandra
Aged about 26 years
37 . Sri Manjunatha
S/o. Late Ramachandra
Aged about 24 years
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WP No. 6527 of 2023
Respondent Nos.34 to 37 are
R/at Naganahalli
K.R.Pura Hobli,
Bengaluru - 560077
38 . Smt. Yashodamma
W/o. Chikkanna
D/o. Late Sampangamma
Aged about 54 years,
R/at Gambiranahalli Village,
Jangamakote Hobli
Shidlaghatta Taluk
Chikkaballapura District-562102.
39 . Smt. Sunandamma
W/o. Late Gopalappa
D/o. Late Sampangamma
Aged about 52 years
R/at Nagasandra,
HAL 2nd Stage, Bengaluru-560008
40 . Sri Srinivas
S/o. Late Kempanna and
Late Sampangamma
Aged about 50 years
R/at Naganahalli
K.R.Pura Hobli,
Bengaluru - 560077
41 . Smt. Savithramma
W/o. Chandrashekar
D/o. Late Sampangamma
Aged about 48 years
R/at B.Narayanapura
K.R.Pura Hobli,
Bengaluru East Taluk-560049.
42 . Smt. Radhamma
W/o. Rameshappa
D/o. Late Sampangamma
Aged about 46 years
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WP No. 6527 of 2023
R/at Kurugal Village,
Vemagal Hobli, Kolar Taluk,
Kolar District-563102.
43 . Smt. Komalamma
W/o. Late Krishnappa
D/o. Late Hanumakka
Aged about 74 years.
R/at Bandikodigehalli Village,
Yelahanka Hobli,
Bengaluru North Taluk
Bengaluru Urban District-562149
44 . Smt. Ambujakshamma
W/o. Late Krishnappa
D/o. Late Hanumakka
Aged about 70 years
R/at Bagaluru Village
Jala Hobli,
Bengaluru North Taluk
Bengaluru-560077.
45 . Sri Sathyanarayana Swami
S/o. Late Hanumakka
Aged about 68 years
R/at Meesanganahalli Village,
Jala Hobli,
Bengaluru North Taluk--560077.
Sri Appanna Gowda
Since dead by his LR's
46 . Smt. Lakshmamma
W/o. Late Appanna Gowda,
Aged about 70 years
R/at K.Narayanapura Village,
K.R.Pura, Bengaluru -560 077.
47 . Smt. Varamahalakshmi
W/o. Bachegowda
D/o. Late Appanna Gowda,
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WP No. 6527 of 2023
Aged about 50 years
R/at Reddahalli Village,
Channarayapatna Hobli,
Devanahalli Taluk-562129.
48 . Sri A.Manjunatha
S/o. Late Appanna Gowda
Aged about 46 years,
R/at K.Narayanapura Village,
K.R.Pura, Bengaluru-560 077.
49 . Smt. Sujatha
W/o. Late Thyagaraj,
D/o. Late Appanna Gowda,
Aged about 48 years,
R/at Paramanahalli Village,
Jadigenahalli Hobli,
Hoskote Taluk-560049.
50 . Smt. Bharathi
W/o. Ravi,
D/o. Late Appanna Gowda,
Aged about 44 years,
R/at Kodipura Village,
Jala Hobli,
Bengaluru North Taluk-560077.
51 . Smt. Veena
W/o. Srinivas,
D/o. Late Appanna Gowda,
Aged about 42 years,
R/at Nagadenahalli Village,
Kundana Hobli,
Doddaballapura Taluk-562110.
52 . Sri Narayana Gowda
S/o. Late Appanna Gowda,
Aged about 40 years,
R/at K.Narayanapura Village,
K.R.Pura Hobli, Bengaluru East Taluk,
Bengaluru-560 077.
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WP No. 6527 of 2023
Sri Kodandaramaiah
Since dead by his LR's
53 . Smt. Rathnamma,
W/o. Late Kodandaramaiah H.,
Aged about 68 years,
R/at K.Narayanapura Village,
K.R.Pura Hobli,
Bengaluru-560 077.
54 . Smt. Padmavathi
W/o. M.S.Ramamurthy,
D/o. Late Kodandaramaiah H.,
Aged about 46 years,
R/at K.Narayanapura Village,
K.R.Pura Hobli,
Bengaluru-560 077.
55 . Sri Anandkumar K.,
S/o. Late Kodandaramaiah H.,
Aged about 44 years,
R/at K.Narayanapura Village,
K.R.Pura Hobli,
Bengaluru-560 077.
56 . Smt. Tanuja
W/o. Pillanna Gowda,
D/o. Late Kodandaramaiah H.,
Aged about 42 years,
R/at K.Narayanapura Village,
K.R.Pura Hobli,
Bengaluru-560 077.
57 . Praveenkumar K.,
S/o. Late Kodandaramaia H.,
Aged about 40 years,
R/at K.Narayanapura Village,
K.R.Pura Hobli,
Bengaluru-560 077.
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WP No. 6527 of 2023
58 . Sri K.V.Rajagopal Reddy
S/o. Late K.Vengala Reddy,
Aged about 62 years,
R/at No.1, Panathur Road,
Yammalur Post and Village,
Bengaluru-560 037.
59 . Sri M.Ramachandra
S/o. Muniswamappa,
Aged about 50 years,
R/at No.219, 19th Cross,
Kaggadasapura
C.V. Ramannagara Post,
Bengaluru -560 093.
60 . Sri N.Reddappa Reddy
S/o. N.Munirathnam Reddy,
Aged about 47 years,
R/at No. 401, Saikrupa Heera,
1st Main, Bhuvaneshwari Nagara,
C.V.Raman Nagar Post,
Bengaluru-560 093.
61 . Sri B.N.Bache Gowda
S/o. Late Narayana Gowda,
Aged about 79 years,
R/at No.114, Lalbagh Road,
Bengaluru -560 027.
62 . Smt. Uma Gowda
W/o. B.N.Bache Gowda,
Aged about 71 years,
R/at No.114, Lalbagh Road,
Bengaluru-560 027.
63 . Sri O.Venkata Reddy
S/o. Late Sidda Reddy,
Aged about 83 years,
R/at Mandur Village,
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WP No. 6527 of 2023
Bidarahalli Hobli,
Bengaluru East Taluk-560049.
64 . Smt. O.Padmalatha
W/o. O.Sridhar Reddy,
Aged about 54 years,
R/at No.102/5
Amaravathi Nagar,
MR Palli, Thirupathi,
Chittor District,
Andhra Pradesh-517501.
65 . Sri O.Srikantha Reddy
S/o. Sri O.Venkata Reddy,
Aged about 54 years,
R/at No. 547, Balaji Colony,
Thrupathi, Chittor District,
Andhra Pradesh-517501.
66 . Sri Seetharam Agarwal
S/o. Govindaram Agarwal,
Aged about 60 years,
R/at Post Saintala,
767232 Bolangir District,
Orissa, Mob-9437838108.
67 . Sri A.Jayanna
S/o. Late Anjinappa,
Aged about 78 years,
R/at Mandur Village,
Bidarahalli Hobli,
Bengaluru East Taluk-560049,
68 . Sri Srinivas Gowda
S/o Late Narayanaswamy,
Aged about 45 years,
R/at Mandur Village,
Bidarahalli Hobli,
Bengaluru East Taluk,
Bengaluru Urban District -560 049.
...Respondents
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WP No. 6527 of 2023
(By Sri Udaya Holla, Senior Advocate for
Sri M.D.Basavanna, Advocate for C/R7 & R14;
Notice to R1 to R6, R8 to R13 and
R15 to R68 - dispensed with)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to quash the impugned order
dated 15.02.2023 passed by the VII Additional Senior Civil
Judge, Bengaluru Rural District, Bengaluru in
O.S.No.2230/2021 vide Annexure-L and consequently dismiss
I.A.No.5 to 8 with costs and etc.
This Writ Petition having been heard and reserved on
13.04.2023 coming on for pronouncement this day, the
court pronounced the following:
ORDER
The plaintiff in O.S.No.2230/2021 has filed
this Writ Petition challenging the order dated
15.02.2023 on I.A.Nos.5 to 8.
2. Necessary facts are as follows:
Suit is for partition against 68 defendants in
respect of 46 items of the property. The plaintiff
has pleaded in the plaint that Gummanna was the
propositus and he had 3 sons namely Anjinappa,
G.Nanjappa and Sanjeevappa, and 2 daughters
namely Hanumakka and Sanjeevamma. Plaintiff is
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WP No. 6527 of 2023
the daughter of Sanjeevappa and she stated that
the suit properties were ancestral joint family
properties; though there had not taken place
actual partition amongst the children of
Gummanna, the revenue records came to be
transferred in the names of 3 sons for
convenience. The defendants denied her share in
the suit properties and therefore she brought the
suit for partition.
The defendant No.7 filed written statement
denying the plaintiff 's right to claim partition in
view of a partition having taken place on
21.09.1953 amongst the sons of Gummanna. In
the course of proceedings defendants No.7 and 14
filed applications under Order 6 Rule 16 of CPC. If
defendant No.7 sought to strike out item Nos.1, 7,
8, 9, 11, 13, 16, 17, 18, 19, 24, 26, 28 to 30, 34,
36, 37, 39, 43 and 44 to 46; defendant No.14
sought striking out the properties described as
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WP No. 6527 of 2023
item No.2 to 5, 7, 14, 19 to 23, 35, 38 and 42 of
the plaint schedule. Defendants No.7 and 14 also
filed 2 more applications under Order 1 Rule 10 of
CPC to delete from the suit the defendants No.1, 3
to 16, 30, 54 and 67. The defendants No.8, 12, 13,
15, 16, 30, 43, 54 and 67 appeared and filed
memo adopting the applications, I.A.Nos.5 to 8
filed by defendants No.7 and 14. In the affidavits
filed along with the applications they stated that
the plaintiff had brought the suit for partition by
suppressing the earlier partition which had taken
place on 21.09.1953 amongst the sons of
Gummanna and infact after the said partition the
plaintiff and other legal heirs of her father sold a
property measuring 11 guntas in survey No.53/1 to
K V Manjunath on 11.05.2008 and another land
measuring 20 guntas in survey No.48 to
Chennamma on 11.10.2021. In both sale deeds,
the plaintiff has stated about partition dated
21.09.1953. The plaintiff is aware of the earlier
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WP No. 6527 of 2023
partition, yet she has filed a suit in respect of all
the properties that belonged to Gummanna. For
these reasons the properties mentioned in the
applications are not available for partition and the
pleadings in respect of those properties are
unnecessary, scandalous, frivolous and vexatious
and hence those properties are to be struck out
from the plaint. For the same reason the presence
of the defendant Nos.1, 3, 4 to 16, 30, 54 and 67
is not necessary and they are to be deleted.
3. The plaintiff filed statement of objections
to the applications. The court below having heard
both the sides allowed the applications and
aggrieved by the said order the plaintiff has filed
this Writ Petition.
4. I heard the arguments of Sri Vijaya
Krishna Bhat M, learned counsel for the petitioner
and Sri Uday Holla, learned senior counsel for
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WP No. 6527 of 2023
M.D.Basanna for the respondents No.7 and 14.
Notice to other respondents was dispensed with.
5. It was the argument of Sri Vijaya Krishna
Bhat that the plaintiff has nowhere admitted the
partition which the defendants have stated to have
taken place in the year 1953. All that she has
pleaded is that the revenue records of the
properties were mutated to the respective names
of the sons of Gummanna for convenience, it
doesn't mean that the partition had taken place.
Since according to the plaintiff all the properties
described in the plaint are available for partition,
merely on the basis of applications filed by the
defendants No.7 and 14, some of the properties
mentioned in the applications cannot be ordered to
be struck out and some of the defendants, deleted.
Partition dated 21.09.1953 constitutes defence for
defendants No.7 and 14 and burden is on them to
prove it. Trial is required to be held for this
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WP No. 6527 of 2023
purpose and at the threshold, deleting some of the
properties and defendants entertaining the
applications is opposed to law and beyond the
scope of Order 6 Rule 16 of CPC. In support of his
argument, he placed reliance on the judgment of
the Supreme Court in the case of AJAY ARJUN
SINGH VS. SHARADENDU TIWARI AND ORS.
[(2016) 15 SCC 219].
6. Sri Uday Holla replied that the plaintiff 's
brothers had earlier filed a suit for declaration of
title stating that a partition had taken place on
21.09.1953. The plaintiff has stated so in the sale
deeds executed in favour of Manjunath and
Chennamma. If that is so, she is aware of the
earlier partition and therefore she cannot bring the
suit in respect of the properties which fell to the
shares of her uncles. The properties mentioned in
the applications were all allotted to plaintiff 's
uncles and for this reason inclusion of those
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WP No. 6527 of 2023
properties in the plaint is nothing but scandalous.
The trial court has properly applied the mind and
there cannot be interference with the impugned
order.
7. Having heard both sides, it is to be
stated that Order 6 Rule 16 of CPC empowers the
court to strike out any part of the pleading at any
stage if it appears that any matter is scandalous,
frivolous or vexatious or which may tend to
prejudice, embarrass or delay the fair trial of the
suit or which is otherwise abuse of the process of
the court. In the case of Ajay Arjun Singh
(supra), the Supreme Court has held that
whenever a pleading is to be struck out on the
ground that it is scandalous, the court must first
record its satisfaction that the pleading is
scandalous in legal sense and then enquire
whether such scandalous allegation is called for or
necessary having regard to the nature of the relief
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WP No. 6527 of 2023
sought in the proceeding. It is also held that court
has to exercise this authority with circumspection
and on the basis of some rational principles.
8. If the impugned order is read, it appears
very well that the court below has applied its mind
and given proper reasons to allow the applications.
The language of Order 6 Rule 16 of CPC is so plain
that the court can exercise the power under this
provision at any stage; the only requirement is
that any matter in the pleading must appear to be
unnecessary, scandalous, frivolous or vexatious.
Suppression of a material fact and taking up a plea
contrary to it can be considered by the court for
exercising power under Order 6 Rule 16 of CPC.
The plaintiff appears to have consciously avoided
to state about partition dated 21.09.1953. In para
8 of the plaint, she has merely stated about
mutation of the revenue documents to the names
of three sons of Gummanna. Though according to
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WP No. 6527 of 2023
her the mutation effected was for their
convenience, it is possible to infer that without
there being some kind of settlement of the family
properties, it was not possible to effect mutation.
If in the sale deeds executed in the favour of
K.V.Manjunath and Chennamma she mentioned
about the partition and if in the plaint she avoided
to state about the partition, it only shows her
intention to reopen the partition of all the
properties that belonged to joint family of
Gummanna. If the plaintiff knew about the
partition, in all fairness she must have disclosed it
and sought partition only in respect of properties
that were allotted to her father. Bringing a suit for
partition in respect of all the properties was not
only unnecessary but also scandalous in the sense
that it was disgraceful on her part to claim
partition in respect of properties which fell to the
share of her uncles and now being enjoyed by their
legal heirs. Driving the heirs of her uncles to face
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WP No. 6527 of 2023
litigation is nothing but vexatious. The trial court
has referred to the suit i.e., O.S.No.849/2003 filed
by defendants No.17 to 19 and one deceased
Krishnappa in respect of land in survey Nos.77 and
190 and in the said suit a finding was given that
partition had taken place on 21.09.1953. The said
suit was dismissed and the R.F.A. filed before this
court was also dismissed. These material facts
having been suppressed by the plaintiff, it can be
stated that defendants No.7 and 14 are justified in
seeking deletion of some of the items of suit
property and some of the defendants. They need
not face litigation for these reasons. Therefore, I
don't find any infirmity in the impugned order.
Hence writ petition is dismissed.
Sd/-
JUDGE
KMV
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