Allowed

B M Ramachandregowda v. B M Tulasiramegowda

Karnataka HC6 Nov 2023RFA/693/2008

Case brief

AI extract

What is this about?

The High Court allowed the appeal against a partition suit decree, set aside the judgment and decree due to non-joinder of necessary parties and pendency of a related suit, remanded the matter for fresh disposal, and permitted BDA to process acquisition benefits subject to an indemnity bond.

What did the court decide?

Impugned judgment and decree allowed. Plaintiffs allowed to implead necessary parties. Relation of suits allowed. BDA permitted to process acquisition benefits subject to indemnity bond.

B M Ramachandregowda Vs B M Tulasiramegowda — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:39771 RFA No. 693 of 2008 C/W RFA.CROB No. 5 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 06^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL No.693 OF 2008(PAR) C/W RFA CROSS OBJECTION No.5 OF 2022

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IN R.F.A.No.693/2008 BETWEEN:

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B M RAMACHANDREGOWDA S/O B.M.MUNIVEKATAPPA AGED 60 YEARS, AGRICULTURIST, R/AT DODDABETTAHALLI, VIDYARANYAPURA POST, BANGALORE-560 097.

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B M SRINIVASAGOWDA S/O B M MUNIVENKATAPPA SINCE DEAD BY LRS.

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Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

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2(a) SMT.SARASAMMA W/O.LATE.B.M.SRINIVASAGOWDA, AGE 55 YEARS, HOUSEHOLD WORK, R/O DODDABETTAHALLI, VIDYARANYAPURA POST, BANGALORE-560 097.

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2(b) SRI PRASANNAKUMAR S/O LATE B.M.SRINIVASAGOWDA, AGED 32 YEARS, OCC:AGRICULTURIST, R/O DODDABETTAHALLI, VIDYARANYAPURA POST, BANGALORE-560 097.

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2 - NC: 2023:KHC:39771 RFA No. 693 of 2008 C/W RFA.CROB No. 5 of 2022

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SMT LAXMAMMA W/O LATE B.M.NAGARAJEGOWDA, AGED 56 YEARS, OCC:AGRICULTURIST, R/O DODDABETTAHALLI, VIDYARANYAPURA POST, BANGALORE-560 097.

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SRI DANANJAY S/O LATE.B.M.NAGARAJEGOWDA, AGED 43 YEARS, OCC:AGRICULTURIST, R/O DODDABETTAHALLI, VIDYARANYAPURA POST, BANGALORE-560 097.

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SRI PURUSHOTTAMA S/O LATE NAGARAJEGOWDA, AGED 36 YEARS, OCC:AGRICULTURIST, R/O DODDABETTAHALLI, VIDYARANYAPURA POST, BANGALORE-560 097.

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SRI RAGHU S/O LATE B.M.NAGARAJEGOWDA AGED 36 YEARS, OCC:AGRICULTURIST, R/O DODDABETTAHALLI, VIDYARANYAPURA POST, BANGALORE-560 097.

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…APPELLANTS

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[BY SRI V.B.SHIVAKUMAR, ADVOCATE FOR A1; *SRI BRIJESH PATIL, ADVOCATE FOR A2(a and b)]

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AND:

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B M TULASIRAMEGOWDA S/O B.M.MUNIVENKATAPPA, AGE 55 YEARS, OCC:AGRICULTURIST,

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Inserted vide Chamber order dated 27.11.2023

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NC: 2023:KHC:39771 RFA No. 693 of 2008 C/W RFA.CROB No. 5 of 2022

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R/O DODDABETTAHALLI, VIDYARANYAPURA POST, BANGALORE-560 097.

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SRI VENKANNA S/O LATE D.SATHYANARAYANA MURTHY AGED 66 YEARS R/AT 19, 1^ST CROSS HMT LAYOUT, GOKULA EXTENSION BANGALORE – 560 054

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SRI B.K.KODAND RAMU S/O LATE B.M.KEMPEGOWDA AGED ABOUT 64 YEARS R/AT NO.366/1, SOMESHWARA EXTENSION DODDABALLAPURA BANGALORE RURAL DISTRICT – 561 203

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SRI B.K.SRINIVASAMURTHY S/O LATE B.M.KEMPEGOWDA SINCE DEAD BY LEGAL REPRESENTATIVES

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4(a) SMT.SHOBHA W/O LATE B.K.SRINIVASAMURTHY AGED ABOUT 46 YEARS

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4(b) SRI S.VENKATESH S/O LATE B.K.SRINIVASAMURTHY AGED ABOUT 26 YEARS

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BOTH ARE RESIDING AT NO.57, DODDABETTTAHALLI VILLAGE VIDYARANYAPURA POST BANGALORE NORTH TALUK BANGALORE -560 097

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SRI B.K.CHANDRASHEKAR GOWDA S/O LATE B.M.KEMPEGOWDA AGED ABOUT 55 YEARS

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NC: 2023:KHC:39771 RFA No. 693 of 2008 C/W RFA.CROB No. 5 of 2022

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R/AT DODDABETTAHALLI VILLAGE VIDYARANYAPURA POST BANGALORE NORTH TALUK BANGALORE – 560 097

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SRI K. SURESH S/O LATE B.M.KEMPEGOWDA AGED ABOUT 55 YEARS R/AT NO.157, ‘SAMPTASHREE NILAYA’ DODDABETTAHALLI VILLAGE BANGALORE NORTH TALUK BANGALORE -560 097.

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SRI B.N.JAGADISH S/O LATE B.M.NARAYANASWAMY GOWDA AGED ABOUT 65 YEARS R/AT No.154, ‘AKSHAYA’ DODDABETTAHALLI VILLAGE VIDYARANYAPURA POST BANGALORE NORTH TALUK BANGALORE – 560 097.

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SRI B.N.VENKATESH S/O LATE B.M.NARAYANASWAMY GOWDA AGED ABOUT 60 YEARS R/AT NO.428/13, ‘A’ SECTOR’ NEAR SRI RAGHAVENDRA TEMPLE YELAHANKA NEW TOWN BANGALORE – 560 064.

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…RESPONDENTS

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[BY SRI P.M.SIDDAMALLAPPA, ADVOCATE FOR R1; SRI B.S.MANJUNATH, ADVOCATE FOR R2;

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SRI LOKESH BOOVANAHALLI, ADVOCATE FOR R3, R4(B), R5 TO R8;

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SRI P.MAHADEVASWAMY, ADVOCATE FOR R4(a)]

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CIVIL PROCEDURE CODE AGAINST THE JUDGMENT

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5 - NC: 2023:KHC:39771 RFA No. 693 of 2008 C/W RFA.CROB No. 5 of 2022

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AND DECREE DT.1.3.08 PASSED IN OS NO. 138/97 ON THE FILE OF THE PRL. CIVIL JUDGE, (SR.DN), BANGALORE RURAL DISTRICT, BANGALORE, DECREEING THE SUIT FOR PARTITION.

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IN RFA.CROB.5/2022

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BETWEEN:

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SRI B K KODANDA RAMU S/O LATE B M KEMPEGOWDA AGED ABOUT 64 YEARS R/AT NO. 366/1, SOMESHWARA EXTENSION DODDABALLAPURA BANGALORE - 561 203

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SMT. SHOBHA W/O LATE B K SRINIVASA MURTHY AGED ABOUT 46 YEARS

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SRI S VENKATESH S/O LATE B M SRINIVASA MURTHY AGED 26 YEARS

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SRI B K CHANDRASHEKAR GOWDA S/O LATE B M KEMPEGOWDA AGED ABOUT 55 YEARS

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BOTH THE 2, 3 AND 4^TH APPELLANTS ARE R/AT DODDABETTAHALLI VILLAGE VIDYARANYAPURA POST BANGALORE NORTH TALUK BANGALORE - 560 097

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SRI K SURESH S/O LATE B M KEMPEGOWDA AGED 55 YEARS

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RESIDING AT NO.157, SAMPTASHREE NILAYA DODDABETTAHALLI VILLAGE

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NC: 2023:KHC:39771 RFA No. 693 of 2008 C/W RFA.CROB No. 5 of 2022

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VIDYARANYAPURA POST BANGALORE NORTH TALUK BANGALORE - 560 097

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SRI B N JAGADEESH S/O LATE B M NARAYANASWAMY GOWDA AGED 65 YEARS RESIDING AT NO.154, ‘AKSHAYA’ DODDABETTAHALLI VILLAGE VIDYARANYAPURA POST BANGALORE NORTH TALUK BANGALORE - 560 097

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SRI B N VENKATESH S/O LATE B M NARAYANASWAMY GOWDA AGED 60 YEARS RESIDING AT NO. 428/13 ‘A’ SECTOR NEAR SRI RAGHAVENDRA TEMPLE YELAHANKA NEW TOWN BANGALORE - 560 064

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…CROSS OBJECTORS

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(BY SRI LOKESH BOOVANAHALLI, ADVOCATE)

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AND:

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SRI THULASI RAMEGOWDA S/O LATE B M MUNIVENKATAPPA AGED 73 YEARS

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D VENKANNA S/O LATE SATHYANARAYANA MURTHY

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AGED ABOUT 66 YEARS, R/S No. 19, 1^st CROSS, HMT LAYOUT, GOKULA EXTENTION, BANGLAORE- 560 054.

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SRI B M RAMACHANDRE GOWDA S/O LATE B M MUNIVENKATAPPA AGED 78 YEARS

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7 - NC: 2023:KHC:39771 RFA No. 693 of 2008 C/W RFA.CROB No. 5 of 2022

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SRI PRASANNA KUMAR S/O LATE B M SRINIVASA GOWDA AGED 32 YEARS

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SMT. LAKSHMAMMA W/O LATE B M NAGARAJA GOWDA AGED 73 YEARS

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SRI DHANANJAY S/O LATE B M NAGARAJA GOWDA AGED 56 YEARS

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PURUSHOTHAM

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S/O LATE B.M.NAGARAJEGOWDA DEAD BY HIS LEGAL REPRESENTATIVES LEAVING HIS WIFE BHARATHI

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SMT. BHARATHI W/O LATE PUROSHOTHAMA AGED 40 YEARS

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SRI RAGHU S/O LATE B M NAGARAJA GOWDA AGED 36 YEARS

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BOTH RESPONDENTS 1 TO 8 ARE R/AT DODDABETTAHALLI VILLAGE VIDYARANYAPURA POST BANGALORE - 560 097

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…RESPONDENTS

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(BY SRI B.S.MANJUNATH, ADVOCATE FOR R2)

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THIS RFA.CROB IN RFA 693/2008 FILED UNDER ORDER 41 RULE 22 R/W SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 01.03.2008 PASSED IN O.S.No.138/1997 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DVN) BANGALORE RURAL DISTRICT, BANGALORE DECREEING THE SUIT FOR PARTITION.

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THIS REGULAR FIRST APPEAL ALONGWITH RFA.CROSS OBJECTION, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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8 - NC: 2023:KHC:39771 RFA No. 693 of 2008 C/W RFA.CROB No. 5 of 2022

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JUDGMENT

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Heard Sri P.M.Siddamallappa, Sri V.B.Shivakumar and Sri Brijesh Patil, advocates.

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Applications are filed by the contesting respondent/ plaintiff to implead respondent Nos.22 to 31 as additional defendants in the suit. Admittedly, the said application is filed stating that they are also necessary parties and they are the members of the family and in the absence of those parties on record, the suit would be bad for non joinder of necessary parties.

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In fact, such an attempt should have been made before the Trial Court, but for the reasons best known to the plaintiff, such a course was not taken to by the plaintiff before the Trial Court.

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Further, Trial Court, ignoring the fact that all the sharers have not been made as parties, proceeded to decree the suit despite there is a specific contention taken in the written statement with regard to non joinder of necessary parties and

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9 - NC: 2023:KHC:39771 RFA No. 693 of 2008 C/W RFA.CROB No. 5 of 2022

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also taking a plea that there is prevision partition on 22.09.1994.

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Therefore, it is just and necessary for this Court to setaside the impugned judgment, especially, when the plaintiff is seeking impleading additional sharers as party defendants by filing the application.

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It is also submitted at the Bar that another member of the family has filed a suit in O.S.No.1335/2020 which is now pending on the file of the Additional Civil Judge (Sr.Dn.), Bengaluru Rural District, with almost similar prayer as that of the plaintiff. Setting aside the impugned judgment and remitting the suit of which the present appeal arises to the Trial court, to be tried along with O.S.No.1335/2020, permitting the plaintiff to implead all necessary parties and also directing the Court to consider the fact of previous partition and pass appropriate orders would meet the ends of justice.

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At this stage, Sri V.B.Shivakumar, counsel representing appellant No.1-B.M.Ramachandre Gowda submits that the Bengaluru Development Authority is acquiring the property and

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NC: 2023:KHC:39771 RFA No. 693 of 2008 C/W RFA.CROB No. 5 of 2022

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because of the present lis, the appellants are deprived of getting the benefits from the BDA.

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Sri P.M.Siddamallappa, counsel submits that by executing necessary indemnity bond, appellant can take the benefit of the acquisition subject to result of the suit in O.S.No.138/1997 of which the present appeal arises and also subject to the result of O.S.No.1335/2020.

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Placing the above submissions on record, following:

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ORDER

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(i) Appeal is allowed .

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(ii) The impugned judgment and decree dated 01.03.2008 passed in O.S.No.138/1997 on the file of the Prl. Civil Judge (Sr.Dn.), Bengaluru Rural District, Bengaluru, is hereby set-aside.

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(iii) The matter is remitted to the Trial Court for fresh disposal in accordance with law.

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(iv) Plaintiff is at liberty to file similar application before the Trial Court to implead all the

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NC: 2023:KHC:39771 RFA No. 693 of 2008 C/W RFA.CROB No. 5 of 2022

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necessary parties in the suit and proceed with the suit in accordance with law.

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(v) Further, the acquisition notification in respect of the suit properties issued by the BDA can be processed by BDA and appellants are permitted to take the benefits from the BDA including the compensation and 40% benefits in the developed land subject to executing indemnity bond specifically mentioning that the benefits are taken subject to the result of O.S.No.1335/2020 and O.S.No.138/ 1997.

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(vi) Parties shall appear before the Trial Court without further notice, on 27^th November 2023.

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(vii) If O.S.No.1335/2020 is pending on a different Additional Court, parties are liberty to file necessary application before the Prl. District Judge, Bengaluru Rural District, to club O.S.No.1335/2020 and O.S.No.138/ 1997 and to dispose of both the suits simultaneously.

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(viii) In view of the appeal being allowed and matter being remitted to the Trial Court,

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NC: 2023:KHC:39771 RFA No. 693 of 2008 C/W RFA.CROB No. 5 of 2022

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Cross Objection No.5/2022 would not survive for consideration.

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(ix) Ordered accordingly.

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(x) All the pending applications in the appeal and cross objection are disposed of.

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Sd/JUDGE

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kcm List No.: 1 Sl No.: 21

B M Ramachandregowda v. B M Tulasiramegowda

Case brief

What is this about?

What did the court decide?

B M Ramachandregowda v. B M Tulasiramegowda

Case brief

What is this about?

What did the court decide?

What the court decided

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