Dismissed

Shivarajegowda v. Kalegowda

Karnataka HC20 Aug 2024MSA/38/2023

Case brief

AI extract

What is this about?

Defendants appealed against remand of a partition suit. The High Court held the trial court failed to frame proper issues on joint family properties and alleged self-acquisition, upheld the first appellate court's remand order, and dismissed the appeal with a direction for early disposal.

What the court decided

AI extract

Shivarajegowda Vs Kalegowda — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:33290 MSA No. 38 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA

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MSA NO.38/2023(RO)

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BETWEEN:

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SHIVARAJEGOWDA, S/O LATE NINGEGOWDA, AGED ABOUT 64 YEARS, R/AT NO MIG 122,

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BEHIND VENKATESHWARA SCHOOL, CHITTANAHALLI HOUSING BOARD, HOLENARASIPURA TOWN.

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NANJAMMA, W/O SHIVARAJEGOWDA, AGED ABOUT 59 YEARS,

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R/AT NO MIG 122,

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Digitally signed by CHETAN B C Location: HIGH COURT OF KARNATAKA

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BEHIND VENKATESHWARA SCHOOL, CHITTANAHALLI HOUSING BOARD, HOLENARASIPURA TOWN.

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(BY SRI. MANJEGOWDA D S.,ADVOCATE)

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…APPELLANTS

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AND:

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KALEGOWDA,

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S/O LATE NINGEGOWDA, AGED ABOUT 57 YEARS, R/O H HINDALAHALLI VILLAGE, HALLIMYSORE HOBLI, HOLENARASIPURA TALUK.

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2 - NC: 2024:KHC:33290 MSA No. 38 of 2023

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MARIGOWDA, S/O LATE NINGEGOWDA, AGED ABOUT 62 YEARS, R/O H HINDALAHALLI VILLAGE, HALLIMYSORE HOBLI, HOLENARASIPURA TALUK.

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GOWRAMMA @ SAROJAMMA, D/O LATE NINGEGOWDA, AGED ABOUT 57 YEARS, R/O H HINDALAHALLI VILLAGE, HALLIMYSORE HOBLI, HOLENARASIPURA TALUK.

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RAJAMMA, S/O LATE NAGARAJU, AGED ABOUT 59 YEARS, R/O H HINDALAHALLI VILLAGE, KASABA HOBLI, HOLENARASIPURA TALUK.

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…RESPONDENTS

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(BY SRI. SOMASHEKARA K M.,ADVOCATE FOR R1 & R2; V.C.O DATED 19.07.2023-NOTICE TO R3 & R4 IS D/W)

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THIS MSA FILED UNDER ORDER 43 RULE 1(u) OF CPC AGAINST THE JUDGMENT AND DECREE DATED 16.12.2022 PASSED IN RA No.37/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HOLENARASIPURA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 03.08.2021 PASSED IN OS No.221/2014 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, HOLENARASIPURA, REMANDING BACK THE MATTER TO THE TRIAL COURT FOR FRESH DISPOSAL.

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THIS MSA COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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NC: 2024:KHC:33290 MSA No. 38 of 2023

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ORAL JUDGMENT

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Heard learned counsel Sri Manje Gowda.D.S. appearing for the appellants and Sri somashekara.K.M. appearing for respondent nos. 1 & 2.

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The present appeal is by the defendants challenging the judgment/order dated 16.12.2022 passed in R.A.No.37/2021 whereby the judgment & decree passed in O.S.No. 221/2014 came to be set aside and the matter was remitted to the trial court for fresh disposal in accordance with law after directing the plaintiffs to include all the joint family properties and also to lead additional evidence.

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Facts in brief which are utmost necessary for disposal of the Appeal are as under:

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A suit came to be filed in O.S.No.221/2014 by the respondents herein seeking for partition of the joint family properties. The defendants who are appellants before this court, filed written statement denying the plaint averments and also contending that there are few more

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NC: 2024:KHC:33290 MSA No. 38 of 2023

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properties which are available for the joint family properties and out of the suit properties Item Nos.1 & 2 are the self acquired properties of defendant nos.1 & 3 respectively and therefore sought for dismissal of the suit.

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The trial court after raising the necessary issues recorded the evidence of the parties and by judgment dated 03.08.2021 dismissed the suit of the plaintiffs primarily on the ground that all the properties of the joint family were not included and secondly on the ground that suit Item Nos. 1 & 2 are acquired by defendants nos.1 & 3 respectively out of their self earnings.

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Being aggrieved by the said, plaintiff filed an appeal before the First Appellate Court in R.A.No.37/2021.

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Learned Judge of the First Appellate Court after securing the records and hearing the parties in detail, by order dated 16.12.2022 set aside the judgment & decree passed in O.S.No.221/2014 and remitted the matter to

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NC: 2024:KHC:33290 MSA No. 38 of 2023

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trial court for fresh disposal in accordance with law permitting the plaintiffs to include all the joint family properties and also to lead further evidence.

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While so doing, the learned Judge of the First Appellate Court placed reliance on the judgment of Hon’ble Apex Court in the case of KENCHEGOWDA (since deceased) BY LEGAL REPRESENTATIVES vs. SIDDEGOWDA ALIAS MOTEGOWDA, reported in (1994) 4 SCC 294 and also taking note of the principles of law enunciated by this court in the case of KALLAPPA

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vs. MALLAMMA, reported in KCCR 2015(4) 3432.

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Being aggrieved by the same, the defendants are in appeal. Sri Manje Gowda, learned counsel for the appellants, reiterating the grounds urged in the appeal memorandum, vehemently contended that the First Appellate Court grossly erred in setting aside the judgment & decree of the trial court especially when there is a clear discussion and finding recorded by the learned trial Judge to the effect that partial partition is not maintainable and

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NC: 2024:KHC:33290 MSA No. 38 of 2023

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also on the ground that suit Item nos. 1 & 2 were the self

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acquired properties of defendant nos. 1 & 3 respectively

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and therefore sought for allowing of the appeal.

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Per contra, learned counsel for the respondents Sri Somashekara.K. M. supports the impugned judgment.

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Having heard the parties in detail, this court perused the material on record meticulously and on such perusal of the material on record, it is crystal clear that the appellants/defendants in the trial court, had taken specific contention in the written statement that all the properties of the joint family were not included in the suit and also gave the details of the remaining joint family properties.

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Under such circumstances, the trial court was bound to frame proper issue by exercising the power under Order 14 CPC by including the properties mentioned in the written statement also as the joint family properties or not.

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NC: 2024:KHC:33290 MSA No. 38 of 2023

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Further, there must have been a specific issue

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with regard to self acquisition and the earning capacity especially when there is an allegation by the plaintiffs that the acquisition in the name of defendant nos. 1 & 3 is only a nominal and the joint family funds have been utilized for the purpose of acquisition of the property, having regard to the date of acquisition and the age of the defendant nos.1 & 3 as on the date of acquisition of those properties.

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However the trial court did not frame proper issues and also dismissed the suit on the ground that the plaintiffs suit for partial partition is not maintainable especially when there was no leave sought for under Order II Rule 2 CPC and also recorded a finding that defendant nos.1 & 3 was successful in establishing that Item Nos. 1 & 2 of the suit properties are self acquired properties.

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Learned Judge of the First Appellate Court if not in so many words, took into consideration these aspects of the matter and permitted the plaintiff to include all the

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NC: 2024:KHC:33290 MSA No. 38 of 2023

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properties in the plaint schedule and also to place additional evidence on record and remitted the matter to the trial court for fresh disposal in accordance with law.

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This court on perusal of the above aspects of the matter especially the principles of law enunciated in the judgment of KENCHEGOWDA referred to supra, is of the considered opinion that the order of the First Appellate

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Court does not suffers from any legal infirmity or perversity so as to interfere by exercising the power vested in this court under Order LXIII Rule 1 & 2 of CPC.

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Accordingly the following:

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O R D E R

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The appeal is meritless and is hereby dismissed. No order as to costs. Having regard to the fact that the suit is of the year 2014, the trial court shall adjudicate the matter afresh in accordance with law and conclude the same on or before 20.12.2024 after affording suitable opportunities for the parties.

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NC: 2024:KHC:33290 MSA No. 38 of 2023

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It is made clear that the admission made by the parties

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shall not be allowed to be withdrawn by parties to the suit.

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Further, the parties shall co-operate for the early disposal of the suit.

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Sd/(V SRISHANANDA) JUDGE

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