Karnataka High Court
Kuberappa S/O Ramchandrappa Rathod vs Pandappa S/O Somalappa Chavan on 6 January, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2025:KHC-D:10
MSA No. 100146 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS SECOND APPEAL NO.100146 OF 2024 (RO)
BETWEEN:
KUBERAPPA S/O. RAMCHANDRAPPA RATHOD,
AGE. 58 YEARS, OCC. AGRICULTURE,
R/O. NAGAVI THANDA,
TQ. AND DIST. GADAG-582101.
...APPELLANT
(BY SRI RAGHAVENDRA A.PUROHIT, ADVOCATE)
AND:
1. PANDAPPA S/O. SOMALAPPA CHAVAN,
AGE. 40 YEARS, OCC. COOLIE,
R/O. NARASAKOPPA THANDA,
TQ. AND DIST. GADAG-582101.
SMT. SAVAKKA
W/O. JEELAPPA LAMANI @ PAWAR,
SINCE DECEASED BY HER LR'S
2. SOMAPPA S/O. JEEVALAPPA PAWAR @ LAMANI,
AGE. 53 YEARS, OCC. COOLIE,
R/O. NAGAVI THANADA,
TQ. AND DIST. GADAG-582101.
Digitally signed by
MALLIKARJUN
RUDRAYYA KALMATH
3. SHEKRAPPA S/O. JEEVALAPPA PAWAR @ LAMANI,
Location: HIGH AGE. 50 YEARS, OCC. COOLIE,
COURT OF
KARNATAKA R/O. NAGAVI THANADA,
TQ. AND DIST. GADAG-582101.
4. LAXMAN S/O. JEEVALAPPA PAWAR @ LAMANI,
AGE. 48 YEARS, OCC. COOLIE,
R/O. NAGAVI THANADA,
TQ. AND DIST. GADAG-582101.
5. SHIVAPPA S/O. JEEVALAPPA PAWAR @ LAMANI,
AGE. 46 YEARS, OCC. COOLIE,
R/O. NAGAVI THANADA,
TQ. AND DIST. GADAG-582101.
6. HANAMANTH S/O. JEEVALAPPA PAWAR @ LAMANI,
AGE. 44 YEARS, OCC. COOLIE,
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NC: 2025:KHC-D:10
MSA No. 100146 of 2024
R/O. NAGAVI THANADA,
TQ. AND DIST. GADAG-582101.
7. MANJUNATH S/O. JEEVALAPPA PAWAR @ LAMANI,
AGE. 42 YEARS, OCC. COOLIE,
R/O. NAGAVI THANADA,
TQ. AND DIST. GADAG-582101.
8. RAMAVVA W/O. RAGHU RATHOD,
AGE. 40 YEARS, OCC. HOUSE HOLD,
R/O. NAGAVI THANADA,
TQ. AND DIST. GADAG-582101.
9. SMT. DEVAKKA
W/O. DHARMAPPA LAMANI @ KARABHARI,
AGE. 62 YEARS, OCC. HOUSE HOLD,
R/O. KALASAPUR THANDA,
TQ. AND DIST. GADAG-582101.
10. SMT. DRUPATI W/O. JAMBAPPA LAMANI,
AGE. 60 YEARS, OCC. HOUSE HOLD,
R/O. NAGAVI THANDA,
TQ. AND DIST. GADAG-582101.
11. SMT. KAMALAVVA W/O. HAMAPPA LAMANI,
AGE. 53 YEARS, OCC. HOUSE HOLD,
R/O. ADAVISOMAPUR,
TQ. AND DIST. GADAG-582101.
12. SMT. CHANDRAWWA W/O. TIPPANNA LAMANI,
AGE. 50 YEARS, OCC. HOUSE HOLD,
R/O. NAGAVI THANDA,
TQ. AND DIST. GADAG-582101.
13. TULAJAPPA S/O. PEERAPPA LAMANI,
AGE. 43 YEARS, OCC. COOLIE,
R/O. NAGAVI THANDA,
TQ. AND DIST. GADAG-582101.
14. PANDAPPA S/O. PEERAPPA LAMANI,
AGE. 40 YEARS, OCC. AGRICULTURE,
R/O. NAGAVI THANDA,
TQ. AND DIST. GADAG-582101.
...RESPONDENTS
THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER
SECTION 43 RULE 1 (U) OF CPC., A) SET ASIDE THE JUDGMENT AND
ORDER DATED 06.11.2024 PASSED BY PRINCIPAL SENIOR CIVIL
JUDGE AND CJM, GADAG, IN R.A. NO.75/2020 IN RESERVING THE
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NC: 2025:KHC-D:10
MSA No. 100146 of 2024
JUDGMENT AND DECREE PASSED BY THE PRINCIPAL CIVIL JUDGE
AND JUDICIAL MAGISTRATE FIRST CLASS, GADAG, IN O.S.
NO.304/2016, DATED 30.08.2018 AND ETC.,
THIS MISCELLANEOUS SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)
The present appeal is filed by defendant No.3 in
O.S.No.304/2016, challenging the order passed in R.A
No.75/2020 dated 06.11.2024 by the Court of Principal Senior
Civil Judge and CJM, Gadag (hereinafter referred to as the 'First
Appellate Court'), thereby setting aside the order passed in O.S
No.304/2016 dated 30.08.2018 by the Court of Principal Civil
Judge and JMFC, Gadag (hereinafter referred to as the 'Trial
Court') and remanding the matter to the Trial Court.
2. For the purpose of convenience, ranking of the
parties is referred to as per their status before the trial
Court.
3. The plaintiff filed suit for the relief of partition
and separate possession of suit schedule properties by
claiming 1/7th share in the suit schedule properties. It is
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pleaded that the suit properties are ancestral and joint family
properties of the plaintiff and defendants. The Trial Court has
passed an order on I.A No.4 filed under Order VII Rule 11 of
the Code of Civil Procedure, 1908 (hereinafter referred to as
the 'CPC') and the said suit was dismissed by the Trial Court.
It is submitted that the defendant filed an application under
Order VII Rule 11(a) of the CPC, but in the impugned order,
the correct provision invoking Order VII is not stated.
Moreover, the trial Court has simply stated Order VII Rule 11
without mentioning clauses of Rule 11 of the CPC.
4. The learned counsel appearing for the
appellant/defendant No.3 submitted that there was already
partition in the family with regard to suit properties and
therefore there is no cause of action to file the suit. Further,
it is submitted that the suit properties were tenanted land
and have got occupancy rights and as per Section 2(12) of
the Karnataka Land Reforms Act, 1961 (hereinafter referred
to as the 'Act'), the plaintiffs being married daughters are
not entitled to share in the suit schedule properties.
Therefore submitted that there is no cause of action to file
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the suit and it is correctly considered by the Trial Court, thus
dismissed the suit, which is wrongly reversed by the First
Appellate Court. Therefore, learned counsel for the appellant
prays this Court to set aside the order passed by the First
Appellate Court by confirming the order passed by the Trial
Court.
5. Whether the plaintiffs being married daughters
are entitled for partition in the suit properties or not entitled
does not mean that the suit does not have cause of action.
Further, as per contention taken by the defendant that there
was already partition, then it is a matter of fact which is to
be proved by the defendants and the pleading of previous
partition in the family does not amount that the suit is not
having cause of action. Therefore, the Trial Court has
committed an error in dismissing the suit by rejecting the
plaint.
6. The Trial Court by mentioning only Order VII
Rule 11 of the CPC, thus the plaint is rejected without
mentioning the clause of Rule 11 of the CPC. The Trial Court
ought to have mentioned under which clause of Rule 11 the
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application is filed and passed the order. The same error is
perpetuated in the order passed by the First Appellate Court.
7. Therefore, just because there was partition as
per pleading of the defendant, it is a matter of fact to be
tried before the trial Court, hence, it does not mean that
there is no cause of action to prefer suit. Therefore, rejection
of plaint under Order VII Rule 11 of the CPC is not correct.
8. Further, whether married daughters are entitled
for share in the suit schedule properties does not amount to
there is no action in preferring the suit. Therefore, the Trial
Court has committed an error in rejecting the plaint and
dismissing the suit, which is correctly reversed by the First
Appellate Court by remanding the suit to the Trial Court for
fresh consideration.
9. In view of the said observations, the appeal
stands dismissed as being devoid of merit.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
PMP
