The High Court dismissed the second appeal challenging the dismissal of a suit for partition. It held that since no substantial question of law arose due to the suit being filed only for declaration and the earlier prayer for amendment being dismissed, the appeal has no merit.
The Second Appeal is dismissed; no relief granted to the appellant.
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NC: 2024:KHC:26209 RSA No. 486 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 486 OF 2022 (DEC/INJ)
BETWEEN:
…APPELLANT
(BY SRI. RAVISHANKAR S., ADVOCATE)
AND:
Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA
SRI CHANNAMARIYAPPA SON-IN-LAW OF CHANNABHANUMAIAH
DEAD BY HIS LRS
AJJANAHALLI, TAVAREKERE HOBLI, BANGALORE SOUTH TALUK.
SMT. DODDAMMA W/O HUCHAIAH DEAD BY HER LRS
NC: 2024:KHC:26209 RSA No. 486 of 2022
ALL ARE R/AT KALAIAHNAPALYA VILLAGE, AJJANAHALLI, TAVAREKERE HOBLI, BANGALORE SOUTH TALUK.
…RESPONDENTS
(BY SRI. PRAVEENA KUMARA NIRVANI, ADVOCATE C/R1)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 28.09.2021 PASSED IN R.A.NO.198/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, MAGADI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 12.03.2013 PASSED IN O.S.NO.216/2003 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, MAGADI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
also directed the parties to place the record before the Court whether earlier application filed under Order 6 Rule 17 of CPC has attained its finality or not.
NC: 2024:KHC:26209 RSA No. 486 of 2022
prayer for partition and it would change the entire complexion of the suit.
that revenue document also show the exclusive name of his father or plaintiff.
for the appellant that both the Courts ought to have invoked Order 7 Rule 7 of CPC to grant the relief of partition and admittedly an application is filed before the Trial Court for the relief of amendment by filing an application and the same came to be rejected and the same is also challenged before this Court in W.P.No.38317/2012 and this Court also affirming the order of the Trial Court, in paragraph No.3 made an observation that the suit was filed in the year 2003 and after 9 years, an application has been filed and what is sought to be amended is also totally new prayer of partition and it changes the entire complexion of the suit. Hence, the Trial Court dismissed the same. When the relief of partition, sought by filing an application and the prayer was rejected and the same has been affirmed by this Court in the writ petition. Now, question of invoking Order 7 Rule 7 of CPC also does not arise. This Court also while rejecting earlier, made an observation that it amounts to changing of nature of the suit and the same amounts to a
NC: 2024:KHC:26209 RSA No. 486 of 2022
new complexion. When such being the case, question of invoking Order 7 Rule 7 of CPC also does not arise and even this Court made an observation while dismissing the writ petition itself in 2012 that the petitioner is always at liberty to file a suit for partition in accordance with law notwithstanding the present suit. Even inspite of the said observation also not filed any other suit instead of challenging the same before this Court inspite of concurrent finding of both the Courts. When such observation is also made and also counsel appearing for the respondent brought to notice of this Court that the Trial Court also dismissing the suit made an observation with regard to property belongs to Channaiah, no document is produced and when such observation is made, question of moulding the relief does not arise.
NC: 2024:KHC:26209 RSA No. 486 of 2022
of entertaining the second appeal does not arise. Hence,
no ground is made out to admit and frame substantial question of law.
the following:
ORDER
i) The Second Appeal is dismissed .
ii) In view of dismissal of the appeal, I.As., if any
do not survive for consideration, the same stands disposed
of.
RHS List No.: 1 Sl No.: 70
Sd/JUDGE
2 issues framed by the court
Whether the second appeal discloses a maintainable ground for admission of a substantial question of law regarding the rejection of partition relief.
Whether the trial court was warranted in dismissing the suit for declaration of ownership in absence of title deeds.
2 provisions across 1 enactments
Sri. Huchaiyah s/o Kumaraiah
Sri. Chikkamuniyappa s/o Kapanaiah Doddamma
Smt. Revamma w/o Kempaiah
Sri Revanna s/o Late Channamariyappa
Smt. Revamma d/o Late Channamariyappa
Smt. Shivarudramma
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
