Karnataka High Court
Millina Kariyappa vs Smt Mayamma on 6 August, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:31244
MSA No. 75 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO.75 OF 2024 (RO)
BETWEEN:
MILLINA KARIYAPPA
SON OF LATE VARADEGOWDA,
AGED ABOUT 62 YEARS,
RESIDING AT YALACHAVADI VILLAGE,
MARALAVADI HOBLI,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT-562 117.
...APPELLANT
(BY SRI RAGHAVA P, ADVOCATE)
AND:
1. SMT MAYAMMA
WIFE OF LATE DAASEGOWDA,
AGED ABOUT 68 YEARS,
2. KARIYA @ KANCHIGOWDA
Digitally signed by SON OF LATE DAASEGOWDA,
MALATESH K C AGED ABOUT 43 YEARS,
Location: HIGH
COURT OF
KARNATAKA
3. GOWRAMMA
WIFE OF LATE VARADEGOWDA @ DAASEGOWDA,
AGED ABOUT 48 YEARS,
4. RAJESH
SON OF LATE VARADEGOWDA @ DAASEGOWDA,
AGED ABOUT 24 YEARS,
5. ARUNA
SON OF LATE VARADEGOWDA @ DAASEGOWDA,
AGED ABOUT 24 YEARS,
-2-
NC: 2024:KHC:31244
MSA No. 75 of 2024
RESPONDENTS 1 TO 5 ARE
RESIDING AT YALACHAVADI VILLAGE,
MARALAVADI HOBLI,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT-562 117.
6. VARADEGOWDA @ CHIKKANNA
SON OF LATE VARADEGOWDA,
AGED ABOUT 53 YEARS,
RESIDING AT YALACHAVADI VILLAGE,
MARALAVADI HOBLI,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT-562 117.
KANCHIGOWDA
SINCE DEAD BY HIS LRS.,
7. MARAKKA,
WIFE OF LATE KANCHIGOWDA,
AGED ABOUT 78 YEARS,
8. VARADEGOWDA
SON OF LATE KANCHIGOWDA,
AGED ABOUT 48 YEARS,
9. NAGARAJU
SON OF LATE KANCHIGOWDA,
AGED ABOUT 41 YEARS,
10. JAYAMMA
WIFE OF LATE MUDDEGOWDA,
AGED ABOUT 43 YEARS,
11. KIRAN KUMAR
SON OF LATE MUDDEGOWDA,
AGED ABOUT 23 YEARS,
12. VARADARAJU
SON OF LATE MUDDEGOWDA AND JAYAMMA,
AGED ABOUT 23 YEARS,
(RESPONDENTS 7 TO 12 ARE RESIDING AT
-3-
NC: 2024:KHC:31244
MSA No. 75 of 2024
YALACHAVADI VILLAGE,
MARALAVADI HOBLI,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT-562 117.)
13. VARADAMMA
WIFE OF THAMMAIAH,
AGED ABOUT 58 YEARS,
RESIDING AT THATTEKERE VILLAGE
MARALAVADI HOBLI
KANAKAPURA TALUK
RAMANAGARA-562 117
14. SHIVARATHNAMMA
DAUGHTER OF LATE KANCHIGOWDA,
AGED ABOUT 55 YEARS,
RESIDING AT ANEHOSAHALLI VILLAGE,
MARALAVADI VILLAGE,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT-562 117.
15. K. SURESH
SON OF KRISHNAM NAIDU,
AGED ABOUT 45 YEARS,
RESIDING AT ATTIGUPPE VILLAGE,
MARALAVADI VILLAGE,
KANAKAPURA TALUK-562 117
16. V. BHASKER NAIDU
SON OF LATE V. RANGASWAMY NAIDU,
AGED ABOUT 53 YEARS,
RESIDING AT NO. 481,
12TH ROSS, 15TH MAIN,
PADMANABHA NAGAR,
BENGALURU-560 070.
17. VARADAMMA
WIFE OF YALIKKIGOWDA,
AGED ABOUT 58 YEARS,
RESIDING AT MARALI DODDI VILLAGE,
MARALAVADI HOBLI,
-4-
NC: 2024:KHC:31244
MSA No. 75 of 2024
KANAKAPURA TALUK-562 117.
...RESPONDENTS
(BY SRI PRAKASH M H, ADVOCATE FOR R1 TO R5;
R6, R15, R16 ARE SERVED AND UNREPRESENTED;
SRI G.C.PRADEEP, ADVOCATE FOR R7 TO R12 AND R14;
SRI UNNIKRISHNAN.M, ADVOCATE FOR R17)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 12.01.2024
PASSED IN R.A.No.5017/2022 ON THE FILE OF II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, RAMANAGARA, TO SIT AT
KANAKAPURA, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 07.09.2022 PASSED ON
IA NO.27 IN O.S.No.49/2018 ON THE FILE OF SENIOR CIVIL
JUDGE AND JMFC, KANAKAPURA AND THE MATTER IS
REMANDED BACK TO TRIAL COURT TO DISPOSE OFF THE
MATTER AFRESH.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri Raghava, learned counsel for the appellant and
Sri Prakash, learned counsel for the respondents.
2. Parties are referred to as plaintiff and defendant as per
their ranking before the Trial Court, for the sake of
convenience.
3. The present Second Appeal is filed by the defendant No.2
challenging the order passed in R.A.No.5017/2022 dated
NC: 2024:KHC:31244
12.01.2024 on the file of the II Addl. District and Sessions
Judge, Ramanagara, to sit at Kanakapura, whereby, order
passed on I.A.No.27 in O.S.No.49/2018 dated 07.09.2022 on
the file of the Senior Civil Judge and JMFC, Kanakapura,
rejecting the plaint came to be set-aside and matter remitted to
the Trial Court for fresh disposal in accordance with law, on
merits.
4. Facts in brief which are utmost necessary for disposal of
the present second appeal are as under:
A suit came to be filed in O.S.No.49/2018 for the relief of
partition. The said suit, on contest, came to be dismissed.
Plaintiffs filed an appeal in R.A.No.5002/2014.
5. The learned Judge in the First Appellate Court after
hearing the parties, set-aside the order of dismissal of suit and
remitted the matter to the Trial Court for fresh disposal in
accordance with law.
6. Paragraph 18 of the judgment passed in R.A
No.5002/2014 which is culled out by the First Appellate Judge
in R.A.No.5017/2022 is further culled out hereunder for ready
reference and certainty.
NC: 2024:KHC:31244
"18. Apart from the above at Para No.26 of impugned
judgment and decree the trial court has observed the
few admission of PW-1 by narrating it in Kannada
version, but in my view the said several discrepancies
and inconsistencies are itself not sufficient to hold that
there was already partition as there is no any evidence
by the side of the defendants to show that what share
is given to the plaintiffs if really there was a partition as
such here it creates a doubt in the mind of the court
with regard to the partition as observed by the trial
judge, likewise the trial judge has also observed at Para
No.27 with regard to minor admissions of PW-3 and has
stated the same in Kannada version, if at all the
testimony of PW-2 & 3 are correct, then why 16
R.A.5002-2014 the defendant no.2 has not placed any
cogent evidence to say that what share was given to
the plaintiffs in the said alleged partition. Of course the
trial judge has followed the principles as laid down in
the rulings as mentioned at Para No.31 of the
impugned judgment and decree. Perused the said
rulings of Hon'ble High Court, on its perusal by giving
most hearty respect the said ratio is not applicable to
the case on hand in the absence of production of
partition deeds, so also as there is absence of cogent
testimony by the relevant witnesses with regard to the
partition held and on perusal of the judgment, 2nd
defendant even though examined one witness as DW-2
and on going through his testimony there is no whisper
NC: 2024:KHC:31244
from his mouth that he was present at the time of
alleged partition and division of suit schedule
properties, therefore what findings given by the trial
judge is to be re- appreciated as the counsel for
appellants has pointed out during the hearing that he
has not given an opportunity to place relevant materials
from his side, so also in the absence of framing of
relevant issue to that effect. Thus without going to the
other aspects and on merits of the case, further as the
appellants/plaintiffs have pointed out that they have
not given an opportunity as per the principles of natural
justice, I am of the view that what judgment and
decree passed by trial court called for interference."
7. After the remand of the case on first time, matter was
adjudicated before the Trial Court. Instead of proceeding with
the suit in terms of the directions issued by the First Appellate
Court, defendant chose to file I.A.No.27 under Order VII Rule
11(a) of the Code of Civil Procedure.
8. Learned Trial Judge who was bound by the directions
issued by the First Appellate Court, did not chose to proceed
with the suit in terms of the order of the First Appellate Court,
but found a shortcut method in rejecting the plaint by allowing
IA No.27.
NC: 2024:KHC:31244
9. Being aggrieved by the same, plaintiff again filed an
appeal in R.A.No.5017/2022.
10. The learned Judge in the First Appellate Court having
noticed that earlier directions were issued by the First Appellate
Court in R.A. No.5002/2014 and said directions were not
followed by the Trial Court, which was bound to be followed,
again set aside the order of the trial court and remitted the
matter to the trial court for fresh disposal in accordance with
law.
11. Operative portion of the impugned judgment i.e.,
R.A.No.5017/2022 reads as under:
"The Appeal filed by the appellants/ plaintiffs under
Section 96 of CPC 1908, is hereby allowed.
Consequently, the judgment and decree passed by
the Senior Civil Judge and JMFC, at Kanakapura in
O.S. No.49/2018 dated 07.09.2022 is hereby set
aside and IA No.27 is rejected, matter is remitted
back to the trial Court to dispose off the matter
afresh by providing an opportunity to the appellants
herein and to the respondents in compliance of
direction issued in the RA No.5002/2014 dated
10.01.2018.
NC: 2024:KHC:31244
Draw decree accordingly.
In view of the disposal of the main appeal any
interim application is pending becomes infructuous
and hence, same is not consideration. In this no
order as to costs. survive for circumstance, no order
as to costs.
Send the copy of this judgment to the trial court
along with Trial Court Records."
12. Being aggrieved by the same defendant No.2 is in this
appeal.
13. Sri Raghava, learned counsel for the appellant/ defendant
No.2 reiterating the grounds urged in the appeal memorandum
contended that, when the very suit itself is not maintainable
before the trial court, allowing of I.A No.27 and terminating the
suit by rejecting the plaint was just and proper, which is not
properly appreciated by the First Appellate Court in the
impugned order and sought for allowing the second appeal.
14. In support of his case, learned counsel for the appellant
has placed on record the following judgments:
1. Dahiben vs. Arvindbhai Kalyanji Bhanusali reported
in (2020)7 SCC 366.
- 10 -
NC: 2024:KHC:31244
2. Swamy Atmananda vs. Sri Ramakrishna Tapovanam
reported in (2005)10 SCC 51.
3. Sopan Sukhdeo Sable and others vs. Assistant
Charity Commissioner and others reported in
Manu/SC/0071/2004.
15. Per contra, Sri Prakash, learned counsel for the
respondents supports the impugned judgment.
16. Having heard the parties in detail, this Court perused the
material on record meticulously.
17. On such perusal of the material on record, it is crystal
clear that suit was filed for the relief of partition. If it is the
case of the defendants that there was a prior partition, that will
have to be established by placing necessary evidence on
record.
18. When there is a specific averment that there is no prior
partition by the plaintiffs and defendants have denied the
same, it becomes an issue to be decided after allowing the
parties to place evidence on record.
19. In fact, the parties did join into such an issue and placed
evidence on record. Thereafter, suit came to be dismissed on
merits.
- 11 -
NC: 2024:KHC:31244
20. Aggrieved plaintiffs filed an appeal in R.A.No.5002/2014.
Learned Judge in the First Appellate Court, after considering the
relevant aspects of the matter, remitted the suit for fresh
disposal in the light of the directions issued as referred to in
paragraph 18, supra.
21. Instead of following the directions which the learned Trial
Judge was bound, as it was an order of Appellate Court, Trial
Court entertained the application filed under Order VII Rule 11
of Code of civil Procedure vide IA No.27 and rejected the plaint.
22. It is settled principles of law and requires no emphasis
that for rejection of plaint the averments made in plaint is to be
looked into and not defence of the defendant.
23. Therefore, learned Judge in the First Appellate Court was
justified in setting aside the order of rejection of the claim
which is impugned in the present appeal.
24. Though, principles of law relied on by the learned counsel
for the appellant cannot be disputed, but the facts and
circumstances of those cases where rejection of the plaint is
upheld by higher courts, including the Hon'ble Apex Court is
different from the facts and circumstances of the case on hand.
- 12 -
NC: 2024:KHC:31244
More so, when the very same defendant did not chose to
challenge the order passed by First Appellate Court in R.A
No.5002/2014.
25. Accordingly, there is no merit in the grounds urged in the
Appeal Memorandum.
26. Hence, the appeal is dismissed.
27. In view of the dismissal of the appeal, all pending
interlocutory applications are consigned to records.
Sd/-
(V SRISHANANDA)
JUDGE
kcm
