The High Court in Bengaluru dismissed a Regular First Appeal filed against a decree rejecting a partition suit as not maintainable, upholding the principle of res judicata due to a prior partition and noting the general bar against partial partition suits.
Appeal dismissed with costs; judgment to be sent to respondents by Speed Post.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
REGULAR FIRST APPEAL NO. 1513 OF 2021 (PAR)
BETWEEN:
Digitally signed by SHARADA VANI B Location: HIGH COURT OF KARNATAKA
AND:
1 TO 7 ARE REPRESENTED BY THEIR GPA HOLDER K. PRABHAKARA SHETTY, AGED ABOUT 69 YEARS, S/O LATE JAGANNATHA SHETTY, VIJAYA BANK LAYOUT, MSRS NAGAR, BILEKAHALLI, BANGALORE.
…RESPONDENTS
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 19.06.2020 PASSED IN OS.NO. 9/2017 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM., MANGALURU, DISMISSING THE SUIT FOR PARTITION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, KRISHNA S. DIXIT. J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the defendants seeks to call in question a judgment & decree, whereby the partition suit in O.S.No.9/2017 has been dismissed on the ground that
in an earlier partition suit in O.S.No.101/1967, decreed on
8.7.1975, a partition has taken place, in terms of FDP
No.13/1999 wherein, a final decree has been drawn on 30.9.2002 in accord with the Division Report submitted by the Court Commissioner.
the tenant by the Land Tribunal u/s 48A of the Karnataka Land Reforms Act, 1961. Such a grant of occupancy would enure to the benefit of the joint family as defined u/s 2(17). Occupancy rights also constitute the property that was subject matter of earlier partition. This aspect of the matter could have been more elaborately dealt with by the Court below, may be true. However, that per se would not make the impugned decree otherwise unsustainable and therefore, cannot be voided.
In the above circumstances, this appeal fails with usual costs.
Registry to send a copy of this judgment to the Respondents by way of Speed Post immediately.
Sd/JUDGE
Sd/JUDGE
ABK List No.: 1 Sl No.: 37
3 issues framed by the court
Whether a first appeal filed under Section 96 CPC is maintainable against a decree dismissing a partition suit on grounds of res judicata and erroneous classification of occupancy rights.
Whether a suit for partial partition is maintainable when an earlier partition decree already covers the subject property.
Whether the High Court in a first appeal should scrutinize factual findings regarding occupancy rights granted by the Land Tribunal.
Colour shows how this judgement treated each authority
None citedReferred
2 provisions across 2 enactments
MR. M. RAJARAMA SHETTY AND OTHERS
SMT. GULABI ALIAS NALINAKSHI AND OTHERS
KRISHNA S DIXIT
G BASAVARAJA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
