Karnataka High Court
Sri. K. G. Venkatesh vs Smt.Honnamma on 2 August, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:30736
MSA No. 97 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO. 97 OF 2017 (RO)
BETWEEN:
SRI. K. G. VENKATESH,
S/O LATE GIRIGOWDA,
RESIDENT OF KUNTUR VILLAGE,
N. HALASAHALLI POST, HALAGUR HOBLI,
MALAVALLI TALUK, MANDYA DISTRICT - 571 430.
...APPELLANT
(BY SRI. RAJAKUMAR G, ADVOCATE)
AND:
1. SMT. HONNAMMA
W/O LATE HUCHEGOWDA @ PUTTEGOWDA,
AGED ABOUT 62 YEARS,
SINCE DECEASED REPRESENTED BY
Digitally HER DAUGHTER RESPONDENT NO.2.
signed by
MALATESH
KC 2. KEMPAJAMMA,
Location:
HIGH W/O CHIKKANNA,
COURT OF AGED ABOUT 35 YEARS,
KARNATAKA
BOTH ARE RESIDENTS OF
KUNTUR VILLAGE, N.HALASAHALLI POST,
HALAGUR HOBLI, MALAVALLI TALUK,
MANDYA DISTRICT - 571 430.
3. SRI. G.N. PUTTEGOWDA,
S/O NINGEGOWDA,
-2-
NC: 2024:KHC:30736
MSA No. 97 of 2017
AGED ABOUT 40 YEARS,
RESIDENT OF GURUVINAPURA,
N. HALASAHALLI POST,
HALAGUR HOBLI, MALAVALLI TALUK,
MANDYA DISTRICT - 571 430.
...RESPONDENTS
(BY SRI. D.S. HOSMATH, ADVOCATE FOR R2;
VIDE ORDER DATED 24.01.2024, R2 IS THE ONLY LEGAL
HEIR OF DECEASED R1;
R3 IS SERVED AND UNREPRESENTED)
THIS MSA IS FILED UNDER SEC.XLIII RULE 1(u) OF THE
CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED
17.07.2017 PASSED IN RA.NO.19/2011 ON THE FILE OF THE
SENIOR CIVIL JUDGE, MALAVALLI, PARTLY ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 16.06.2011 PASSED IN OS.NO.228/2008 ON THE FILE
OF THE CIVIL JUDGE AND JMFC., MALAVALLI, REMITTING THE
MATTER BACK TO THE TRAIL COURT FOR FRESH DISPOSAL IN
ACCORDANCE WITH LAW.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri.Rajakumar G., learned counsel for the
appellant. Respondent No.2 has engaged the services of
Sri.D.S.Homatth, learned counsel who is absent today.
2. Present second appeal is filed challenging the
order passed in RA No.19/2011 dated 17.07.2017 on the
NC: 2024:KHC:30736
file of Senior Civil Judge, Malavalli whereby, learned Judge
in the First Appellate Court set aside the judgment and
decree passed in O.S.No.228/2008 dated 16.06.2011 and
remanded the matter to the Trial Court for fresh disposal
in accordance with law after framing appropriate issue with
regard to the relationship of the parties as well as
admitting the additional evidence.
3. Brief facts of the case which are utmost
necessary for disposal of the appeal are as under:
3.1. A suit came to be filed by the plaintiff stating
that late Huchegowda resident of Kuntur village, is the
common propositor and Kartha of the Hindu Undivided
Joint Family. After his death, his son Huchegowda @
Puttegowda who is the grandfather of the plaintiff,
succeeded to the entire extent of share of senior
Huchegowda.
3.2. It is further contended that plaintiff's
grandfather namely Huchegowda @ Puttegowda got
NC: 2024:KHC:30736
married to Hunumamma @ Doddatayamma and in their
wedlock, two daughters namely Thayamma and
Chennamma were born.
3.3. Huchegowda @ Puttegowda performed the
marriage of his daughters during his lifetime. Thayamma
and her husband died issueless and plaintiff is the only son
of second daughter namely Chennamma.
3.4. Huchegowda @ Puttegowda had no male issues.
Thereafter, the parents of the plaintiff also died whereby,
plaintiff became the absolute owner in possession of the
property left behind by Huchegowda @ Puttegowda. As
such, plaintiff sought for relief of partition, separate
possession and permanent injunction and mesne profits as
against Honnamma, Kempajamma and G.N.Puttegowda,
who claims to be second wife and children of late
Huchegowda @ Puttegowda.
3.5. The suit on contest came to be decreed as
prayed for.
NC: 2024:KHC:30736
4. Thereafter, defendants filed an appeal before
the First Appellate Court in RA No.19/2011.
5. It is noticed that there was no issue raised by
the Trial Court with regard to the relationship of the
defendants with Huchegowda @ Puttegowda.
6. Learned Judge in the First Appellate Court after
considering the rival contentions of the parties, allowed the
application filed to place the additional evidence on record
and also permitted the defendants to amend the written
statement filed under Order VI Rule 17 and remitted the
matter to the Trial Court to raise appropriate issue with
regard to the relationship of defendants with Huchegowda
@ Puttegowda and also to dispose of the suit afresh in
accordance with law.
7. The said order is called in question in this
second appeal by the plaintiff under Order XLIII Rule 1(u)
of CPC.
NC: 2024:KHC:30736
8. Having heard the arguments of Sri.Rajakumar,
learned counsel for the appellant, this Court perused the
material on record, meticulously.
9. On such perusal of the material on record, it is
seen that there is a specific averment made in the written
statement by the defendants about the validity of the
marriage of defendant No.1 with Huchegowda @
Puttegowda. It is her specific case that after first wife of
Huchegowda @ Puttegowda died, Huchegowda @
Puttegowda married defendant No.1 and children born in
their wedlock. Therefore, they are to be treated as
coparceners along with the plaintiff and therefore, suit
needs to be dismissed.
10. When such a specific stand has been taken in
the written statement, the Trial Court ought to have
framed an issue with regard to the validity of the marriage
of defendant No.1 with Huchegowda @ Puttegowda and
parties were required to adduce evidence on the said
NC: 2024:KHC:30736
aspect of the matter and thereafter, the matter should
have been disposed of on merits in accordance with law.
11. Defendants also come up with a theory of
execution of the Will by Huchegowda @ Puttegowda and
the said aspect is also to be considered is the opinion
expressed by the First Appellate Court while remitting the
matter to the Trial Court.
12. Since there is no proper issue framed which
according to order XIV of CPC is a mandatory duty on the
part of the Trial Court, the additional evidence and the
amendment which are also to go to the very root of the
matter, this Court is of the considered opinion that
remitting the matter to the Trial Court by the First
Appellate court needs no interference by admitting the
appeal for further consideration.
13. Accordingly, the following:
NC: 2024:KHC:30736
ORDER
i. Admission declined.
ii. Appeal is dismissed.
iii. However, the First Appellate Court has
granted six months time to conclude the suit
afresh in accordance with law after affording
opportunities for the parties.
iv. Accordingly, the parties are directed to
appear before the Trial Court positively with
further notice on 26.08.2024 and thereafter,
Trial Court to proceed with the case in
accordance with law and conclude the same
within six months thereafter.
Sd/-
(V SRISHANANDA)
JUDGE
KAV
CT: BHK
