Dismissed

K M Manchegowda v. Sri Manchaiah

Karnataka HC10 Jul 2024MSA/74/2018

Case brief

AI extract

What is this about?

High Court dismissed an appeal against a remand order. The court held no substantial question of law arose as the suit's tenability and property determination were still pending, allowing defendants to argue regarding omitted properties during retrial.

What did the court decide?

The miscellaneous second appeal is allowed. The defendants are at liberty to agitate their contentions regarding the non-inclusion of properties, and the remand order is affirmed.

K M Manchegowda Vs Sri Manchaiah — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:26563 MSA No. 74 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI MISCELLANEOUS SECOND APPEAL NO. 74 OF 2018 (RO)

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BETWEEN:

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K.M.MANCHEGOWDA,

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SINCE DEAD BY HIS LRS,

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SMT.BHAGYAMMA, D/O LATE K.M.MANCHEGOWDA, AGED ABOUT 53 YEARS,

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SMT.RATHNA, D/O LATE K.M.MANCHEGOWDA, AGED ABOUT 51 YEARS,

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SRI.K.M.RUDRAPPA, S/O LATE K.M.MANCHEGOWDA, AGED ABOUT 49 YEARS,

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SRI.K.M.SHANKAREGOWDA, S/O LATE K.M.MANCHEGOWDA, AGED ABOUT 45 YEARS,

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Digitally signed by GEETHAKUMARI PARLATTAYA S 5. Location: High Court of Karnataka

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SRI.MANCHAIAH, S/O LATE K.M.MANCHEGOWDA, AGED ABOUT 47 YEARS,

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SRI.K.M.SHIVAKUMAR, S/O LATE K.M.MANCHEGOWDA, AGED ABOUT 43 YEARS,

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SRI.K.M.RAMACHANDRA, S/O LATE K.M.MANCHEGOWDA, AGED ABOUT 40 YEARS,

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ALL ARE R/O KEELARA VILLAGE,

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2 - NC: 2024:KHC:26563 MSA No. 74 of 2018

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KEREGODU HOBLI, MANDYA TQ., MANDYA DISTRICT - 571401.

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SMT.LAKSHMAMMA, SECOND W/O LATE K.M.MANCHEGOWDA, AGED ABOUT 55 YEARS,

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SRI.K.M.MANCHEGOWDA, S/O LATE K.M.MANCHEGOWDA, AGED ABOUT 37 YEARS,

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SMT.RANJITHA, D/O LATE K.M.MANCHEGOWDA, AGED ABOUT 35 YEARS,

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SMT.PUTTAMMA 3^RD WIFE OF LATE K.M.MANCHEGOWDA, AGED ABOUT 53 YEARS,

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SRI.K.M.MANCHEGOWDA, S/O LATE K.M.MANCHEGOWDA, AGED ABOUT 31 YEARS,

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SMT.SAVITHRAMMA D/O LATE K.M.MANCHEGOWDA, AGED ABOUT 29 YEARS, R/O NIDAGODI VILLAGE, CHANNAPATNA TQ.

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SRI.K.M.KRISHNA, S/O LATE K.M.MANCHEGOWDA, AGED ABOUT 27 YEARS, KEELARA VILLAGE, KEREGODU HOBLI, MANDYA TQ., MANDYA DISTRICT - 571401.

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SMT. JAYAMMA W/O LATE K.M.MANCHEGOWDA,

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3 - NC: 2024:KHC:26563 MSA No. 74 of 2018

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DEAD, THE LRs. OF JAYAMMA ALREADY RECORDED IN APPELLANTS 1 TO 14.

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…APPELLANTS

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(BY SRI. RAJA L.,ADVOCATE)

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AND:

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SRI.MANCHAIAH S/O MOOSANA MANCHAIAH, AGED ABOUT 79 YEARS, R/O KEELARA VILLAGE, KEREGODU HOBLI, MANDYA TQ., MANDYA DISTRICT - 571401.

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…RESPONDENT

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(BY SRI.HARSHA V., ADVOCATE FOR SRI.RAJAYOGA K., ADVOCATE)

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THIS MISCELLANEOUS SECOND APPEAL FILED UNDER ORDER 43 RULES 1(U) OF THE CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE LEARNED I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANDYA IN R.A.NO.8/2013, DATED 16.03.2018 AND CONFIRM THE JUDGMENT AND DECREE PASSED BY THE LEARNED ADDITIONAL CIVIL JUDGE AND JMFC, MANDYA PASSED IN O.S.NO.496/2008, DATED 09.11.2012 AND PASS ANY OTHER SUITABLE ORDER WHICH DEEMS FIT ON THE FACTS AND CIRCUMSTANCES OF THE CASE BY ALLOWING THIS APPEAL.

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

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JUDGMENT

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This appeal is filed challenging judgment and decree dated 16.03.2018 in R.A.No.8/2013 passed by I Additional Senior Civil Judge and CJM, Mandya.

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NC: 2024:KHC:26563 MSA No. 74 of 2018

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Sri L.Raja, learned counsel for appellants submits that appellants herein were legal representatives of original defendant. Respondent had filed O.S.no.496/2008 for relief of partition and separate possession of half share in suit schedule properties. He had also filed O.S.no.133/2009 for permanent injunction. It was submitted, in said suit, defendant had specifically contended that plaintiff was not entitled to partition in view of previous partition between families of plaintiff and defendant in year 1962. It was also contended that suit was not tenable on account of non-inclusion of all joint family properties.

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Based on pleadings, Trial Court had framed following

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issues:

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"ISSUES IN O.S.496/2008

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1) Whether the plaintiff proves that, the suit schedule properties are joint family properties?

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2) Whether the plaintiff entitled for legitimate half share in suit schedule properties?

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3) Whether the plaintiff entitled for mesne profit as claimed in plaint averments?

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4) Whether the plaintiff s entitled for relief as sought for?

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5) What order or decree?

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5 - NC: 2024:KHC:26563 MSA No. 74 of 2018

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ISSUES IN O.S.133/2009

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1) Whether the plaintiff proves that, he is in the peaceful possession and enjoyment of the suit schedule properties as on the date of the suit?

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2) Whether the plaintiff proves the alleged interference from defendants?

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3) Whether the plaintiff entitled for the relief of Permanent injunction?

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4) What order or decree?"

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Same was answered, which reads as under:

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"10) My findings to the above issues in O.S.496/2008 are as under:Issue No.1-in the Negative, Issue No.2-in the Negative, Issue No.3-in the Negative, Issue No.4-in the Negative, Issue No.5-as per the final order.

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11) My findings to the above issues in O.S.133/2009 are as under:Issue No.1-in the Negative, Issue No.2-in the Negative, Issue No.3-in the Negative, Issue No.4-as per the final order."

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After recording evidence thereon, trial Court dismissed

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both suits. Aggrieved, plaintiff filed R.A.no.8/2013 only against

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judgment and decree in O.S.no.496/2008. It was opposed on ground that plaintiff had deliberately failed to include all suit schedule properties. Despite said contention having been taken by defendant Appellate Court passed decree, remanding back

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NC: 2024:KHC:26563 MSA No. 74 of 2018

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to Trial Court for inclusion of left-out properties, which would not be tenable. First Appellate Court had directed plaintiff to include following properties:-

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"Sy.Nos.225, 9, 211, 516, 236, 218, 132, 249, 231, 51/6, 200/4, 224/3, 224/3B, 213/10, 426, 413, 418 and 419"

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Specific issue is framed:-

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"Whether a suit is bad for non-joinder of all joint family properties?"

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It was submitted in view of objections filed by

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appellants/defendants against application for amendment of plaint, wherein appellants/defendants tabulated 53 items of properties were left-out from suit schedule. But in remand order, only few properties were directed to be included, would not be justifiable. Hence, sought for allowing appeal.

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On other hand, Sri Harsha V., learned counsel appearing for Sri Rajayoga.K., learned counsel for respondentplaintiff sought to oppose appeal. It was contended that remand to Trial Court was not restricted to addition of specific properties but for inclusion of left-out properties. It was specifically observed by Appellate Court that parties would be required to lead evidence regarding all joint family properties.

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NC: 2024:KHC:26563 MSA No. 74 of 2018

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Same would provide an opportunity to defendants herein to establish whether any properties were left-out and seek inclusion. Under such circumstances, there would be no justification for appeal and sought dismissal.

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This Miscellaneous Second Appeal is filed under Order 45 Rule 1(u) of CPC, which is akin to Regular Second Appeal under Section 100 of CPC and unless a substantial question of law is espoused, there would be no scope for interference. At outset, perusal of judgment and decree passed by Trial Court would indicate that defendants have taken a specific plea regarding non-inclusion of properties standing in name of plaintiff's children and also took a plea that properties were acquired by defendants after prior partition in 1962. It has been observed by First Appellate Court that there is a specific issue regarding nature of suit properties and issue, whether suit was untenable, as prayer sought for partial partition, is not framed. First Appellate Court has at time of remand order framed specific issue, whether suit is bad for partial partition and directed Trial Court to provide opportunity to both parties to lead evidence on same. In view of dismissal of suits earlier, shares are not yet determined. A question about legality of

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NC: 2024:KHC:26563 MSA No. 74 of 2018

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such determination would arise only in case suit is tenable. Hence, no substantial question of law arises for consideration.

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With observations that defendants would be at liberty

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to agitate their contention about non-inclusion of all 53 items of properties, as contended by them in their objections to application for amendment of plaint and on which Trial Court would require them to record evidence, appeal stands

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dismissed .

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Sd/JUDGE

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CPN

K M Manchegowda v. Sri Manchaiah

Case brief

What is this about?

What did the court decide?

K M Manchegowda v. Sri Manchaiah

Case brief

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