Disposed

Sri H N Mahaveera v. Sri M N Nagaraju

Karnataka HC30 Oct 2024WP/7409/2023

Case brief

AI extract

What is this about?

Plaintiffs in a partition suit sought injunction against drawing a final decree in another suit where they were not parties. After their application was rejected, the High Court transferred their suit to the final decree court to decide both proceedings together, leaving all contentions open.

What did the court decide?

O.S.No.42/2020 transferred to II Additional Senior Civil Judge, Tumakuru to be handled along with FDP No.27/2018; evidence to be recorded and final decree drawn/modified as appropriate.

Sri H N Mahaveera Vs Sri M N Nagaraju — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:43934 WP No. 7409 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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WRIT PETITION NO. 7409 OF 2023 (GM-CPC)

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BETWEEN:

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SRI. H.N. MAHAVEERA AGED ABOUT 57 YEARS, S/O. NEMIRAJAIAH AND KANAKARATHNA

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PANKAJA AGED ABOUT 55 YEARS, D/O NEMIRAJAIAH AND KANAKARATHNA

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PRAPULLA AGED ABOUT 53 YEARS, W/O. BRAHMAPRASAD, D/O. NEMIRAJAIAH AND KANAKARATHNA

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PRATHIBA AGED ABOUT 50 YEARS, D/O NEMIRAJAIAH AND KANAKARATHNA

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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THE PETITIONERS NO.1 TO 4 ARE R/AT NO.2016, 15^TH MAIN, 3^RD CROSS, VIJAYANAGARA 2^ND STAGE, MYSURU-570017.

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JWALAMALA

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AGED ABOUT 63 YEARS, D/O. LATE NEMIRAJAIAH R/AT 'MAHAVEERA NILAYA', 4^TH MAIN, VINAYAKANAGAR, TUMAKURU TOWN-572120.

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PARSHWANATHA AGED ABOUT 47 YEARS, S/O LATE MADHURA AND LATE AJITHKUMAR

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2 - NC: 2024:KHC:43934 WP No. 7409 of 2023

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SMT. POORNIMA AGED ABOUT 44 YEARS, W/O SURESHBABU

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SMT. PREMA AGED ABOUT 41 YEARS, W/O JINESH, D/O LATE MADHURA AND LATE AJITHKUMAR THE PETITIONER NO.6 TO 8 ARE R/AT PADMAMBA TRADERS, NO.22, EAST CROSS, ASHOKA ROAD, TUMAKURU-572101.

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…PETITIONERS

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(BY SRI. RAMESH K.R., ADVOCATE)

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AND:

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SRI. M.N. NAGARAJU AGED ABOUT 61 YEARS, S/O LATE M.C. NEMIRAJAIAH, R/AT 'MAHAVEERA NILAYA', 4^TH MAIN, VINAYAKANAGAR, TUMAKURU TOWN-572120.

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SMT. PADMINI AGED ABOUT 66 YEARS, W/O NAGENDRAIAH, D/O LATE M.C. NEMIRAJAIAH R/AT NO.65/2, 4^TH MAIN, 9^TH CROSS ROAD, CAUVERY PURAM, BEHIND RAMA MANDIRA TEMPLE ROAD, KAMAKSHIPALYA, BENGALURU-560079.

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SMT. NALINI KUMAR AGED ABOUT 59 YEARS, W/O INDRAKUMAR, D/O LATE M.C. NEMIRAJAIAH, R/AT NO.342, 3^RD MAIN, 5^TH CROSS, GOKUL EXTENSION, TUMAKURU TOWN, TUMAKURU-572102.

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3 - NC: 2024:KHC:43934 WP No. 7409 of 2023

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SRI. M.N. YUVARAJAIAH AGED ABOUT 55 YEARS, S/O SUNANDAMMA, R/AT SANDEEPANI SCHOOL, ARVINDA NAGARA, VINOBANAGARA, SHIVAMOGGA-577204.

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…RESPONDENTS

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(BY SRI. L.P. SURESH, ADVOCATE FOR RESPONDENT NOS.2 AND 3; SRI. S. LAKSHMINARAYANA, ADVOCATE FOR RESPONDENT NO.4; NOTICE SERVED ON RESPONDENT NO.1)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 10.01.2023 PASSED BY THE III ADDL. SENIOR CIVIL JUDGE AND JMFC, TUMAKURU ON IA NO.1 IN OS NO.42/2020 AT ANNEXURE-F AND THEREBY ALLOW THE APPLICATION FILED BY THE PETITIONERS IN IA NO.1 UNDER ORDER 94e READ WITH SECTION 151 OF CPC AT ANNEXURE-D AND ETC.,

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The plaintiffs in O.S.No.42/2020 pending consideration before the III Additional Senior Civil Judge and JMFC Tumakuru, have filed this petition challenging an order dated 10.01.2023 by which, I.A.No.I filed by them under Section 94(e) read with Section 151 of Civil Procedure Code to restrain the defendants from enforcing the preliminary decree passed in

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NC: 2024:KHC:43934 WP No. 7409 of 2023

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O.S.No.150/2014 passed by the II Additional Senior Civil Judge, Tumakuru was rejected.

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The facts in a nutshell are that the defendant No.4/M.N.Yuvarajaiah in O.S.No.42/2020 had filed O.S.No.150/2014 against the defendant No.1/M.N.Nagarajaiah for partition and separate possession of his share in the suit properties.

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It is the claim of the plaintiffs in O.S.No.42/2020 that they were not arrayed as parties in O.S.No.150/2014 though they too had an undivided share in the suit properties. The suit in O.S.No.150/2014 was decreed in terms of the judgment and decree dated 15.02.2018 by which, it was declared that the defendant No.4 was entitled to ½ share in the suit properties. Hence, the plaintiffs in O.S.No.42/2020 were advised to file a separate suit claiming their share in the suit properties and hence, O.S. No.42/2020 was filed. In the said suit, the plaintiffs filed an application under Section 94(e) read with Section 151 of Civil Procedure Code to restrain defendant Nos.1 and 4 from taking out proceedings to draw the final decree in respect of decree passed in O.S.No.150/2014. The

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NC: 2024:KHC:43934 WP No. 7409 of 2023

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said application was contested by the defendants which resulted in Trial Court rejecting the application in terms of the impugned order on the ground that if the plaintiffs have any undivided right in the suit properties, nothing prevented them from getting themselves impleaded in the final decree proceedings and seek for adjudication of their right in the suit properties. It therefore held that the plaintiffs without exhausting the said remedy cannot maintain a separate suit. Consequently, it rejected the application.

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Being aggrieved by the said order, the plaintiffs are before this Court.

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Learned counsel for the plaintiffs contended that the defendant No.4 had already filed FDP No.27/2018 to obtain a final decree in respect of the preliminary decree passed in O.S.No.150/2014. He contends that the issue whether the defendant No.1 is entitled to any share in the suit properties cannot be adjudicated in final decree and therefore, it is proper that a thorough adjudication be made in respect of the rights of the plaintiffs in O.S.No.42/2020. He therefore, prays that final

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NC: 2024:KHC:43934 WP No. 7409 of 2023

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decree proceedings initiated in FDP No27/2018 be stayed until the disposal of O.S.No.150/2014.

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Per contra, the learned counsel for the defendant No.4 submits that the plaintiffs can as well get themselves impleaded in final decree proceedings and seek for adjudication of their share. He submits that filing another suit would only result in multiplicity of proceedings. He therefore, contends that the impugned order passed by the Trial Court be confirmed by reserving liberty to the plaintiffs to work out their remedy in the final decree proceedings.

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I have considered the submissions of the learned counsel for the plaintiffs as well as the learned counsel for the defendant No.4.

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It is no doubt true that the plaintiffs, who claim to be the members of the joint family are entitled to claim a share in the properties. They are also entitled to participate in final decree proceedings and seek for adjudication of their share in the suit properties. That is the reason why, it is very often stated that the final decree proceedings is a continuation of

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NC: 2024:KHC:43934 WP No. 7409 of 2023

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preliminary decree and Court which passes the final decree is also entitled to modify the preliminary decree.

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Ideally, the plaintiffs must have sought adjudication of their title in final decree proceedings. However, one of the contentions urged by the plaintiffs in the suit is that the defendant No.4 is not a member of the joint family. This contention was decided in O.S.No.150/2014 and hence the same cannot be re-agitated or re-adjudicated in FDP No.27/2018. This can only be done in the suit filed by the plaintiffs in O.S.No.42/2020.

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In that view of the matter, instead of directing the plaintiffs to get themselves impleaded in the final decree proceedings in FDP No.27/2018, it would be prudent to direct transfer of the suit filed by the plaintiffs in O.S.No.42/2020 to the Court where FDP No.27/2018 is pending and the Court should consider both the proceedings together and pass appropriate judgment.

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In view of the above, this writ petition is disposed off by transferring O.S.No.42/2020 which is presently pending before III Additional Senior Civil Judge and JMFC, Tumakuru to

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NC: 2024:KHC:43934 WP No. 7409 of 2023

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the II Additional Senior Civil Judge, Tumkuru who shall take it up along with FDP No.27/2018. In view of the order passed in RFA No.683/2018 directing the Final decree Court not to draw final decree, the Trial Court is directed to proceed to record evidence of the parties in O.S.No.42/2020 and based on the outcome of O.S.No.42/2020, it shall take further steps to draw up the final decree and if need be modify the preliminary decree in O.S.No.150/2014.

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All contentions are left open.

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Sd/(R. NATARAJ) JUDGE

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List No.: 1 Sl No.: 29

Sri H N Mahaveera v. Sri M N Nagaraju

Case brief

What is this about?

What did the court decide?

Sri H N Mahaveera v. Sri M N Nagaraju

Case brief

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