Karnataka High Court
Sri Obaiah @ Sannobaiah vs Sri Giddaboraiah @ Sannaboraiah on 21 November, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MSA No. 100 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS SECOND APPEAL NO. 100 OF 2016 (RO)
BETWEEN:
SRI. OBAIAH @ SANNOBAIAH
S/O BORAIAH @ SANNABORAIAH
AGED ABOUT 69 YEARS,
R/O PALANAYAKANAKOTE,
THALAK HOBLI,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT.
...APPELLANT
(BY SRI. NANJA REDDY P N .,ADVOCATE)
AND:
1. SRI GIDDABORAIAH @ SANNABORAIAH
SINCE DEAD BY HIS LRS
1(a). SMT PALAMMA
Digitally signed by
RAMYA D
W/O GIDDABORAIAH @ SANNABORAIAH
Location: HIGH
COURT OF
AGED ABOUT 70 YEARS,
KARNATAKA
1(b). SRI DODDOBAIAH
S/O GIDDABORAIAH @ SANNABORAIAH
AGED ABOUT 60 YEARS,
1(c). SRI OBAIAH
W/O GIDDABORAIAH @ SANNABORAIAH
AGED ABOUT 50 YEARS,
CHITRADURGA DISTRICT
1(d). GUDIBORAIAH
W/O GIDDABORAIAH @ SANNABORAIAH
AGED ABOUT 48 YEARS,
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MSA No. 100 of 2016
1(e). NALLAJAVARIAH
S/O GIDDABORAIAH @ SANNABORAIAH
AGED ABOUT 46 YEARS,
1(f). DODDAMMA
W/O SANNABORAIAH
AGED ABOUT 44 YEARS,
1(f)(1) SRI MAHENDRA KUMAR
S/O LATE SANNA BORAIAH
AGED ABOUT 21 YEARS,
1(f)(1) SMT. BORAMMA
D/O LATE SANNA BORAIAH
AGED ABOUT 22 YEARS,
DEAD
1(g). SMT. NALLAJARUVAMMA
W/O KEMPAIAH
D/O GIDDABORAIAH
AGED ABOUT 45 YEARS,
1(h). SRI NALLAJAVARAIAH
S/O GIDDABORAIAH
AGED ABOUT 36 YEARS,
ALL ARE AGRICULTURISTS,
R/O PALANAYAKANAKOTE,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT.
2. SRI R B OBAIAH
S/O DODDA BORAIAH
AGED ABOUT 49 YEARS
R/O BACHABORANAHATTI
CHITRADURGA TALUK
DELETED AS PER COURT ORDER DATED 06.11.2022
3. SMT. PUTTAMMA
W/O LATE POOJARI OBAIAH @ PEELA OBAIAH
AGED ABOUT 62 YEARS
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MSA No. 100 of 2016
4. SMT. OBAMMA
W/O MUTTAIAH
AGED ABOUT 39 YEARS
5. SMT. BORAMMA
W/O CHANDRANNA
AGED ABOUT 37 YEARS
RESPONDENTS 3 TO 5 ARE
R/O BATTAIAHNAHATTI,
CHALLAKERE TALUK.
6. SRI OBAIAH
S/O LATE POOJARI OBAIAH
@ PEELA OBAIAH
AGED ABOUT 33 YEARS,
7. SRI. BORAIAH
S/O LATE POOJARI OBAIAH
@ PEELA OBAIAH
AGED ABOUT 29 YEARS
8. SRI. SANNA BORAIAH
S/O LATE POOJARI OBAIAH @ PEELA OBAIAH
AGED ABOUT 27 YEARS,
9. SRI KRISHNAMURTHY
S/O POOJARI OBAIAH @ PEELA OBAIAH
AGED ABOUT 27 YEARS
RESPONDENT 6 TO 9 ARE
R/O PALANAYAKANANAKOTE VILLAGE,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT.
...RESPONDENTS
(BY SRI. Y H VIJAYAKUMAR ADVOCATE FOR R2(A,B,D) (R1 (F),
R1 (G&H) AND R8;
R1© R3 TO R7, & R9 ARE SERVED AND UNREPRESENTED;
V/O DATED 06.01.2022 R2 DELETED AS PER PRESENT
APPEAL;
R1(F)+ RA(F1) ARE TREATED AS LR'S OF DECEASED
R1 (F2))
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MSA No. 100 of 2016
THIS MSA FILED UNDER ORDER 43 RULE 1(u) OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 20.01.2016
PASSED IN RA NO.21/2013 ON THE FILE OF THE 1ST ADDL. DIST.
AND SESSIONS JUDGE, CHITRADURGA, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
08.01.2013 PASSED IN OS NO.37/2011 ON THE FILE OF THE
SENIOR CIVIL JUDGE, CHALLAKERE.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
This Miscellaneous Second Appeal is filed by the plaintiff
calling in question the order dated 20.01.2016 passed in
RA.No.21/2013 by 1st Addl. District & Sessions Judge,
Chitradurga, thereby the judgment and decree dated
08.01.2013 passed in O.S.No.37/2011 by the Senior Civil
Judge, Challakere, is set aside and remanded the case to the
trial Court.
2. The ranks of the parties, is as stated before the
trial Court for easy reference and convenience.
3. The plaintiff has filed the suit for partition and
separate possession by contending that the suit schedule
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properties are joint family and ancestral properties. The trial
Court after trial by receiving the evidence has decreed the
suit of the plaintiff by granting half share in the suit schedule
property by metes and bounds to the plaintiff.
4. Thereafter, the defendants have preferred the
appeal before the First Appellate Court and the First Appellate
Court has set aside the judgment and decree passed by the
trial Court and remanded the matter to the trial Court for
fresh consideration. The First Appellate Court has assigned
the reason that the trial Court has not framed issues about
the partition alleged to have taken place between the children
of Kodagaiah prior to 50 years as on the date of the suit and
in possession of eastern half of the schedule property by
Chinnamma, ownership of the plaintiff over schedule "B"
property, and entitlement of the plaintiff for either main relief
or alternative relief sought by the plaintiff is not forthcoming.
Therefore, without deciding the case on merits, but remanded
the matter to the trial Court.
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5. Heard the arguments from both sides and perused
the records.
6. Learned counsel for the appellant/plaintiff
submitted that after decree is passed, the plaintiff has filed
the final decree proceedings in FDP No.9/2013 and the FDP
Court has given half share to the plaintiff as per preliminary
decree and the plaintiff is in possession of half share in the
suit schedule property and therefore, the preliminary decree
passed in the suit is satisfied. The defendants have filed the
appeal before the First Appellate Court and the First Appellate
Court without considering the case on merits but remanding
the matter to the trial Court is not correct. Since the
defendants have appeared in FDP proceedings and have
contested the FDP proceedings, but did not disclose the
pendency of regular appeal before the First Appellate Court.
It is also submitted that there is no proper service of notice
on the plaintiff in the regular appeal by the First Appellate
Court. Therefore, the plaintiff did not know anything about
the appeal, which was pending before the First Appellate
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Court. Therefore, prays to allow the appeal and remand the
case to the First Appellate Court for considering the case on
merits by the First Appellate Court in the appeal.
7. On the other hand, learned counsel for the
respondents/defendants justified the order passed by the trial
Court and hence, prays to dismiss the appeal.
8. In the present case, the trial Court has decreed
the suit by granting half share to the plaintiff. As per final
decree in FDP No.9/2013, it is stated by the learned counsel
for the plaintiff that the possession was delivered to the
plaintiff to the half extent and thus, the final decree
proceedings was closed.
9. The defendants have preferred the appeal in
R.A.No.21/2013, but it was contended that there was no
proper service of notice to the plaintiff in the said appeal.
Hence, he has not contested the appeal. It is submitted that,
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if notice in the appeal has been served, then the plaintiff
would have been in possession to intimate to the FDP Court
about the pendency of regular appeal, but the fact remains
that the plaintiffs who are respondents in the regular appeal
remained exparte in the appeal. It is contended that both suit
schedule A & B properties are one and same.
10. The First Appellate Court ought to have decided
the case on merits than to remand the matter to the trial
Court. The First Appellate Court has observed that issues
were not framed about the partition alleged to have taken
place between Kodagaiah prior to 50 years as on the date of
the suit. Though, the defendants have taken the contention
regarding the prior partition, then that could have been
considered while answering the issues already framed in the
suit and remanding of the case is not necessary.
11. In the appeal, the plaintiffs were not sufficiently
represented as it is shown that the respondent/plaintiff and
other defendants are absent. Therefore, there were no
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sufficient representations on behalf of the plaintiff and
defendants who are respondents in RA.No.21/2013.
Therefore, the order of remand made by the First Appellate
Court is liable to be set aside and it is directed the First
Appellate Court to re-hear the appeal and pass appropriate
orders on merits in accordance with law. Therefore, the
appeal is liable to be allowed by setting aside the order
passed by the First Appellate Court.
12. Hence, I proceed to pass the following
ORDER
i. The appeal is allowed.
ii. The judgment and order dated 20.01.2016 passed
in RA.No.21/2013 by 1st Addl. District & Sessions
Judge, Chitradurga, is hereby set aside.
iii. The matter is remanded to the First Appellate
Court for fresh consideration of the appeal on
merits in RA.No.21/2013.
iv. Both the parties are directed to appear before the
First Appellate Court on 04.01.2025. The First
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Appellate Court is directed to dispose of the appeal
within a period of six months from 04.01.2025.
v. It is ordered that the parties in the appeal shall
maintain status-quo as regarding possession of the
parties as on today.
vi. Registry is directed to transmit the TCR along with
copy of this order to the concerned Court.
vii. No order as to costs.
SD/-
(HANCHATE SANJEEVKUMAR)
JUDGE
PB
