Dismissed

Smt Nanjamma v. Smt Rathnamma

Karnataka HC23 Jan 2024MSA/47/2019

Case brief

AI extract

What is this about?

In a second appeal against a remand order, the High Court of Karnataka held that the first appellate court was justified in remanding a partition suit to the trial court. The High Court observed that defendants were denied sufficient opportunity to lead evidence and argue regarding marital status and property nature, thus dismissing the appeal.

What did the court decide?

Appeal dismissed; suit remanded to trial court for fresh disposal within 9 months.

Smt Nanjamma Vs Smt Rathnamma — Partition | Karnataka HC (2024)

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NC: 2024:KHC:3268 MSA No. 47 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD DAY OF JANUARY, 2024 BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS SECOND APPEAL NO.47 OF 2019 (RO)

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BETWEEN:

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SMT. NANJAMMA W/O LATE KARIGOWDA, R/AT SUNNADADODDI VILLAGE, C.A.KERE HOBLI, MADDUR TALUK.

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SMT.NINGAMMA W/O THIMMEGOWDA, D/O LATE KARIGOWDA, R/AT SUNNADADODDI VILLAGE, C.A.KERE HOBLI, MADDUR TALUK.

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…APPELLANTS

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(BY SRI. MANJUNATH M. HEGDE, ADVOCATE FOR SRI. T SESHAGIRI RAO, ADVOCATE)

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AND:

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Digitally signed by JAI JYOTHI J Location: HIGH COURT OF KARNATAKA

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SMT RATHNAMMA D/O LATE KARIGOWDA, R/AT SUNNADODDI VILLAGE, C.A.KERE HOBLI, MADDUR TALUK.

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SRI.SHIVALINGEGOWDA S/O LATE KARIGOWDA, R/AT SUNNADODDI VILLAGE, C.A.KERE HOBLI, MADDUR TALUK.

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SMT.NANJAMMANNI W/O LATE SRINIVASAGOWDA, R/AT SUNNADODDI VILLAGE,

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NC: 2024:KHC:3268 MSA No. 47 of 2019

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C.A.KERE HOBLI, MADDUR TALUK.

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SMT.VARSHITHA D/O LATE SRINIVASAGOWDA, R/AT SUNNADODDI VILLAGE, C.A.KERE HOBLI, MADDUR TALUK.

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SMT.AKSHITA D/O LATE SRINIVASAGOWDA, R/AT SUNNADODDI VILLAGE, C.A.KERE HOBLI, MADDUR TALUK. MINOR AND SHE IS REPRESENTED BY HER MOTHER WHO IS NATURAL GUARDIAN I.E., RESPONDENT NO.3 HEREIN

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SMT.PREMA W/O SWAMYGOWDA, R/AT BELUR VILLAGE, KASABA HOBLI, MANDYA TALUK.

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…RESPONDENTS

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(BY SMT.P.ARCHANA MURTHY, ADVOCATE FOR R1 TO R4 & R6; R5 IS MINOR REPRESENTED BY R3)

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THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 08.03.2019 PASSED IN R.A.NO.12/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADDUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 12.02.2016 PASSED IN OS.NO.157/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, MADDUR, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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3 - NC: 2024:KHC:3268 MSA No. 47 of 2019

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JUDGEMENT

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The second appeal is filed by the plaintiffs calling in question the judgment dated 08.03.2019 passed by the Senior Civil Judge, Maddur, in R.A.No.12/2016 wherein the first appellate court remanded the matter to the trial court for fresh disposal/recording evidence.

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Rank of the parties are stated as before trial

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court for easy reference and convenience.

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Brief facts of the case are as follows:

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The plaintiffs have filed the suit for partition and separate possession claiming that the first plaintiff is a legally wedded wife of Karigowda and second plaintiff is the daughter of first plaintiff and Karigowda. It is stated that defendant No.1 is the second wife and defendant Nos.2 to 5 are the children of Karigowda and first defendant. The trial court decreed the suit by declaring that the first plaintiff is the legally wedded wife and first defendant is the second wife and defendant Nos.2 to 5 are the children of first defendant and Karigowda. The trial

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NC: 2024:KHC:3268 MSA No. 47 of 2019

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court has decreed the suit by granting 1/6^th share each to the plaintiffs and defendants Nos.2 to 6.

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Being aggrieved by the said decree, the defendants have preferred R.A.No.12/2016 before the first appellate court and first appellate court has remanded the case to the trial court on the reasons that defendants were not able to put forth defence before the trial court regarding their relationship as well as on the nature of suit schedule properties. The first appellate court not only on the application filed for additional evidence remanded the case to the trial court, but also regarding the marital status, the suit is remanded to the trial court. The plaintiffs have challenged the order of remand made by the first appellate court.

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Heard the arguments of both sides and perused

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the materials on record.

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Learned counsel for the plaintiffs/appellants submitted that plaintiffs and defendant Nos.2 to 5 are

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5 - NC: 2024:KHC:3268 MSA No. 47 of 2019

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given equally 1/6^th share, therefore the defendants cannot be aggrieved at any stretch of imagination and therefore, remanding suit for fresh trial is nothing but prolonging the matter. Therefore, prays for allowing the appeal by confirming the judgment and decree of the trial court.

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On the other hand, learned counsel for the respondents/defendants submitted that in the trial court the defendants were not given sufficient opportunity to lead evidence and within two months from the date of fixing the date for defendants' evidence the entire suit is completed, but whereas for cross examination of PW3 on behalf of plaintiffs much time was taken by the plaintiffs. Therefore, the defendants were not given sufficient opportunity to lead the evidence. Hence, first appellate court is correct in remanding the matter on both the aspects regarding proving relationship status and nature of properties. Hence, there is no injustice caused in remanding the matter to the trial court. Hence, justified the order passed by the first appellate court.

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6 - NC: 2024:KHC:3268 MSA No. 47 of 2019

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The first appellate court has observed that on

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08.12.2015 for the first time the evidence was fixed for defendants' side and on 12.02.2016 the trial court has decreed the suit. The order sheet of the trial court records shows that there was sufficient opportunity given to the defendants to put forth their defence and also the counsel for the defendants have not lead their evidence and the trial court has taken the arguments heard by observing the evidence as ‘NIL’. Therefore, for evidence and arguments there was no sufficient opportunity given to the defendants. On these reasons, the first appellate court has remanded the case both on marital status of the plaintiff No.1 and defendant No.1 to prove as to who is the legally wedded wife of Karigowda.

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Regarding nature of property is concerned, it is

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the defence to be stated by the defendants as argued before this Court now that the suit properties were given by the brother of deceased Karigowda, but not Karigowda, but on the other hand, the counsel for the plaintiffs with

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7 - NC: 2024:KHC:3268 MSA No. 47 of 2019

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reference to written statement of defendants that the suit property was given to the share of Karegowda. Therefore, on this aspect leading evidence by the defendants is also necessary. As observed by the first appellate court at para 24 of the judgment from the date of fixing the evidence of defendants the entire episode is completed within two months. It cannot be said that sufficient opportunity was given to the defendants, therefore the first appellate court is correct and justified in remanding the matter, which needs no interference by this Court.

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Before the first appellate court the defendants have filed an interlocutory application under Order 41 Rule 27 CPC and the first appellate court by allowing the same remanded the matter to the trial court to consider the evidence, which also need not be interfered with.

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Therefore, for enabling the opportunity to the defendants the matter is remanded to the trial court, thus cannot be found fault with the facts and circumstances of

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NC: 2024:KHC:3268 MSA No. 47 of 2019

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the case. Therefore, the appeal is liable to be dismissed. Accordingly, I proceed to pass the following:

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ORDER

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(i) Appeal is dismissed .

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(ii) The trial court is directed to dispose of the suit within a period of 9 months from the date of appearance before the trial court.

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(iii) Both the plaintiffs and defendants shall appear before the trial court without expecting notice from the trial court on 26.02.2024.

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(iv) The trial court shall make all endeavour to dispose of the matter within 9 months from 26.02.2024.

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Sd/JUDGE

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List No.: 1 Sl No.: 27

Smt Nanjamma v. Smt Rathnamma

Case brief

What is this about?

What did the court decide?

Smt Nanjamma v. Smt Rathnamma

Case brief

What is this about?

What did the court decide?

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