Dismissed

Sri Honnursab S/O Rahimansab Kittu v. Nazima D/O Rahimansab Kittur

Karnataka HC29 Aug 2024CRP/100102/2024

Case brief

AI extract

What is this about?

Defendant sought rejection of plaint in a sibling's partition suit claiming an earlier 1978 partition left no cause of action. Court found the plaint recorded denial of plaintiff's share demand and failed elders' mediation, so cause of action existed; dismissed the revision petition upholding the trial court's rejection of the Order VII Rule 11 application.

What the court decided

AI extract

Sri Honnursab S/O Rahimansab Kittu Vs Nazima D/O Rahimansab Kittur — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:12352 CRP No. 100102 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 29^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE RAVI V.HOSMANI

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CIVIL REVISION PETITION NO.100102 OF 2024

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BETWEEN:

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SRI HONNURSAB S/O. RAHIMANSAB KITTUR, AGE: 60 YEARS, OCC: POLICE CONSTABLE, R/O: CHIKKAHANDIGOL, DIST: GADAG. NOW AT R/O: BEHIND OLD BUS STAND, C.R.BADAVANE HUBBALLI, TQ: HUBBALLI, DIST: DHARWAD – 580 029.

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…PETITIONER

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(BY SRI H. N. GULARADDI, ADVOCATE)

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AND:

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NAZIMA D/O. RAHIMANSAB KITTUR, AGE: 50 YEARS, OCC: GOVT EMPLOYEE, R/O: CHIKKAHANDIGOL, TQ AND DIST: GADAG – 582 205.

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SRI MEHABOOBSAB S/O. RAHIMANSAB KITTUR, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: GOLLAGERI ONI, CHIKKAHANDIGOL, TQ AND DIST: GADAG – 582 205.

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka

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SRI SHARIPASAB S/O. RAHIMANSAB KITTUR, AGE: 44 YEARS, OCC: POLICE CONSTABLE, R/O: CHIKKAHANDIGOL, TQ AND DIST: GADAG, NOW RESIDING AT I.S.F. POLICE, NAVANAGAR POLICE STATION, TQ: HUBBALLI, DIST: DHARWAD – 580 025.

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SMT. BIBIJAN W/O. ALLABHAKSHA SHETHASANADI, AGE: 56 YEARS, OCC: HOUSEHOLD, R/O: K.H.PATIL BADAVANE, CHIKKAHANDIGOL, TQ AND DIST: GADAG – 582 205.

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SMT. BIBIJAN @ CHANDBI W/O. HUSSAINSAB RAJEKHANAVAR, AGE: 54 YEARS, OCC: HOUSEHOLD, R/O: HIREHANDIGOL, TQ AND DIST: GADAG – 582 205.

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…RESPONDENTS

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THIS CIVIL REVISION PETITION IS FILED UNDER SEC.115 OF CPC,

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PRAYING TO SET ASIDE THE ORDER DATED 21.06.2024 PASSED BY THE PRL. SENIOR CIVIL JUDGE AND CJM, GADAG, IN O.S.NO.77/2020 ON I.A.NO.III PRODUCED AT ANNEXURE-E IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,

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NC: 2024:KHC-D:12352 CRP No. 100102 of 2024

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THIS CIVIL REVISION PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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Challenging order dated 21.06.2024 passed by Principal Senior Civil Judge and CUM, Gadag in

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O.S.No.77/2020, this petition is filed.

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Sri H.N.Gularaddi, learned counsel for petitioner submitted that, petitioner was defendant no.1 in suit filed by respondent no.1 herein for partition etc. It was submitted since suit properties were already partitioned after death of petitioner’s father in year 1978, there was no scope for filing present petition. Therefore petitioner had filed application under Order VII Rule 11(a) of Civil Procedure Code, 1908 (‘CPC’ for short) as there was no cause of action.

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Under impugned order Trial Court had rejected application without proper reasons. It was submitted properties were self acquired properties of petitioner’s father and his brother. After death of father of petitioner there was partition, wherein petitioner’s uncle had relinquished his rights in respect of suit properties in favour of petitioner and

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3 - NC: 2024:KHC-D:12352 CRP No. 100102 of 2024

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defendants no.2 and 3. As such, they were in possession and enjoyment of suit properties.

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It was further stated, petitioner’s mother died in year 2017 and during her lifetime, respondent no.1/plaintiff had never raised any demand for share. It was further submitted that defendants had nurtured plaintiff to enable and getting into government service and therefore suit was filed only for harassment and on instigation of persons with ill-will. On above grounds sought for allowing petition.

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Heard learned counsel and perused impugned

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order.

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From above, it is seen that respondent no.1 has

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filed suit for partition against petitioner and others. In said suit petitioner filed application under Order VII Rule 11D of CPC, rightly noted by Trial Court to be under Order VII Rule 11A of CPC. Under said provision, in case plaint does not disclose proper cause of action, said plaint would be liable for rejection.

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4 - NC: 2024:KHC-D:12352 CRP No. 100102 of 2024

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Perusal of plaint at Annexure-A, reveals that plaintiff being a member of family, on 20.05.2020, when he demanded for his share, same was denied by defendants no.1 to 3. Even attempt to secure partition through intervention of elders on 02.06.2020 had failed. Thus, cause of action for filing suit had arisen.

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Perusal of written statement and application filed by petitioner would indicate there is no denial about relationship. There is also no denial about suit properties earlier belonging to petitioner’s father. Though concept of ancestral joint family property and coparcenery are alien to Muslim Law, partition of fixed shares on basis of survivorship would be available.

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Merely on ground that petitioner had asserted about earlier partition, it cannot be stated that there was no cause of action to plaintiff for filing suit. In any case, same would be matter for trial. It is seen that on said reasoning, Trial Court had rejected application.

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5 - NC: 2024:KHC-D:12352 CRP No. 100102 of 2024

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Therefore, I do not find any material irregularity

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or error of jurisdiction committed by Trial Court. No scope for

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interference, petition is dismissed.

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Sd/(RAVI V.HOSMANI) JUDGE

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EM CT-ASC List No.: 1 Sl No.: 26

Sri Honnursab S/O Rahimansab Kittu v. Nazima D/O Rahimansab Kittur

Case brief

What is this about?

What the court decided

Sri Honnursab S/O Rahimansab Kittu v. Nazima D/O Rahimansab Kittur

Case brief

What is this about?

What the court decided

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