B R Ravikumar Vs Lakshmamma

@ KEMPARAGNAIAH, W/O VENKATESH G N, AGED ABOUT 34 YEARS, R/O CHIKKAMALAVADI, TEREDAKUPPE POST KOTTAGERE HOBLI, KUNIGAL TALUK, TUMAKURU DISTRICT - 572118.

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MUNIYAPPA S/O LATE MARAIAH, AGED A BOUT 63 YEARS

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GANGAIAH

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S/O LATE MARAIAH,

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AGED A BOUT 60 YEARS.

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RAMAIAH S/O LATE MARAIAH, AGED ABOUT 55 YEARS

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2 - NC: 2025:KHC:28314 MSA No. 157 of 2024

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HC-KAR

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APPELLANTS NO.3 TO 5 ARE R/O SASALU VILLAGE, GULUR HOBLI, TUMAKURU TALUK, TUMAKURU DISTRICT - 572118.

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…APPELLANTS

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(BY SRI. S.V.PRAKASH, ADVOCATE)

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AND:

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LAKSHMAMMA D/O LATE MARAIAH W/O SULAIAH AGED ABOUT 55 YEARS R/O HALUHOSAHALLI VILLAGE GULUR HOBLI, TUMAKURU TALUK TUMAKURU DISTRCT - 572118.

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VIJAYAMMA @ VIJAYAKUMARI H R D/O LATE RANGAIAH @ RANGAPPA W/O RAMESH AGED ABOUT 38 YEARS R/O SASUPALYA, SASULU GULUR HOBLI, TUMAKURU TALUK TUMAKURU DISTRICT – 572118.

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HONAPPA S/O LATE MARIYAPPA SINCE DEAD BY HIS LEGAL HEIRS

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THIMMAKKA W/O LATE HONNAPPA, AGED ABOUT 70 YEARS OCC: HOMEMAKER

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MUNIGANGAIAH S/O LATE HONNAPPA AGED ABOUT 50 YEARS OCC: AGRICULTURIST

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GOWDAAIAH S/O LATE HONNAPPA

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HC-KAR

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AGED ABOUT 48 YEARS OCC: AGRICULTURIST

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GOWDAAIAH S/O LATE HONNAPPA AGED ABOUT 48 YEARS OCC: AGRICULTURIST

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SUVARNAMMA @ AMMAIAH D/O LATE HONNAPPA AGED ABOUT 46 YEARS OCC: HOMEMAKER

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8. JAGADAMBA

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D/O LATE HONNAPPA AGED ABOUT 44 YEARS OCC: HOMEMAKER

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RESPONDENTS 3 TO 7 ARE RESIDENT OF BASAVEGOWDANAPALYA SASALU POST, GULURU HOBLI TUMAKURU TALUK AND DISTRICT-572122.

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…RESPONDENTS

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THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC, AGAINST THE JUDGMENT DATED 19.09.2024 PASSED IN R.A. NO.75/2019 ON THE FILE OF PRL. SENIOR CIVIL JUDGE AND CJM, TUMAKURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 20.12.2018 PASSED IN O.S.NO.890/2012 ON THE FILE OF V ADDITIONAL CIVIL JUDGE AND JMFC, TUMAKURU, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION AND THE MATTER IS REMANDED BACK TO THE TRIAL COURT WITH A DIRECTION TO DISPOSE THE SUIT BY GIVING OPPORTUNITIES TO BOTH PARTIES TO ADDUCE EVIDENCE.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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NC: 2025:KHC:28314 MSA No. 157 of 2024

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HC-KAR

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ORAL JUDGMENT

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This matter is listed for admission. I have heard learned counsel for the appellants.

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The order challenged before this Court is remanding the matter in R.A.No.75/2019 by allowing the application filed under Order 6 Rule 17 of CPC and the same is allowed on cost of Rs.2,000/-. While allowing the application, the First Appellate Court set aside the judgment and decree passed in O.S.No.890/2012 and the matter is remanded to the Trial Court for fresh disposal with a direction to the Trial Court to accord an opportunity to the plaintiff to carryout amendment of plaint by including the house property and defendants to file written statement or additional written statement, if any and to dispose the suit by giving opportunities to both parties to adduce evidence and date is also fixed for appearance without expecting any notice and also directed for early disposal of the suit.

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The counsel appearing for the appellants in this second appeal would vehemently contend that the First Appellate Court committed an error in allowing the application

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HC-KAR

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filed under Order 6 Rule 17 of CPC. The counsel would vehemently contend that the First Appellate Court did not peruse the proviso to Order 6 Rule 17 CPC and committed an error and the First Appellate Court ought not to have remanded the matter. The counsel would vehemently contend that even the First Appellate Court itself would have given an opportunity to both the parties, record evidence and would have sent the matter to the Trial Court to record the evidence and give finding on that keeping the matter pending before the First Appellate Court and the same has not been done. Hence this Court has to interfere with the order of the Trial Court.

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Having heard learned counsel for the appellants and

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also on perusal of material available on record, O.S.No.890/2012 was filed for the relief of partition and separate possession in respect of the suit schedule properties, particularly to hold that registered sale deed dated 31.08.2007 is not binding upon the plaintiff's legitimate share. Having considered the written statement, the Trial Court framed the issue with regard to whether the plaintiff proves that she herself and defendant Nos.1 to 5 constitute Undivided Hindu

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HC-KAR

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Joint Family and suit schedule properties are the joint family properties, whether plaintiff proves that alienation made in respect of item No.2 in favour of defendant No.6 by defendant No.2 is not binding on her share and whether defendant No.6 proves that item No.2 of the schedule property was sold by defendant No.2 and her children for family necessities. The Trial Court answered issue Nos.1 to 3 in the ‘affirmative’, but dismissed the suit, in coming to the conclusion that P.W.1 has given clear admission in the cross-examination that his was having 7 acres of land and also a house at Basavegowdana Palya. Taking note of the said admission, the Trial Court comes to the conclusion that even after stating about the existence of other properties of plaintiff’s father, she did not make any effort to include those properties in plaint to claim share. This shows the malafide intention of plaintiff not to include other properties of her father and subject it to partition. This fact being admitted by P.W.1 requires no proof from other side. Therefore, suit is liable to be dismissed for non-joinder of all the properties of the family.

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HC-KAR

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When such observation is made while passing an order, in the appeal, an application is filed under Order 6, Rule 17 CPC and the same is considered as point No.1 whether the proposed amendment is necessary for determination of real controversy between the parties. The First Appellate Court having taken note of the grounds which have been urged, while answering point No.1, in paragraph No.21 observed that it will necessitate the Court to decide the right of the parties effectively and conclusively and it deems it proper to accord an opportunity to the plaintiff to amend the plaint. However, the claim of defendant No. 6 that the plaintiff has come up with the application without document to drag on the proceedings cannot be taken up at this juncture, as it is premature contention. However, the burden is upon the plaintiff to substantiate the nature and her entitlement over the said property with the cogent and convincing evidence. Hence, non production of document will not disentitle a party from inclusion of the property to the suit. Hence, answered point No.1 as ‘affirmative’ and also considering the material available on record, remanded the matter with a direction to give an opportunity.

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HC-KAR

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Having considered the reasoning given by the First

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Appellate Court and when an application is filed under Order 6, Rule 17 CPC for inclusion of other properties praying the Court to amend the plaint and also when an opportunity is given to the defendants also to file a written statement or additional written statement and direction was given to consider the matter afresh, learned counsel appearing for the appellants would contend that First Appellate Court ordered for denovo enquiry, the same is not found on perusal of the order of the First Appellate Court. But, when admission was given by P.W.1 and the same is extracted by the Trial Court while considering issue No.4 and it is also settled law that there cannot be any partial partition and all the properties belonging to the family would have to be included as plaint schedule properties and in view of the same, I do not find any error committed by the First Appellate Court in allowing the application and permitting to amend the plaint and giving an opportunity to both plaintiff and defendants to produce evidence before the Trial Court.

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No doubt, learned counsel for the appellants would

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contend that suit was filed in 2012 and there cannot be remand

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HC-KAR

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to the Trial Court and the First Appellate Court itself ought to have considered the matter, when an application is filed, the evidence and pleadings of both the parties are necessary when an application is filed under Order 6, Rule 17 CPC. Hence, both the parties are directed to place on record their respective pleadings. Therefore, I do not find any error committed by the First Appellate Court in remanding the matter without recording the evidence, since pleadings of the parties also to be completed. Hence, taking note of said fact into consideration and since suit was filed in 2012, this Court can direct the Trial Court to dispose of the matter within a time bond period of four months.

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In view of the discussion made above, I pass the

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following:

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ORDER

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(i) The miscellaneous second appeal is disposed of.

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(ii) The learned counsel for the appellant is directed to intimate the counsel, who appears on behalf of the respondents before the trial Court and the parties

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HC-KAR

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to appear before the Trial Court on 28.08.2025 without expecting any notice.

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(iii) The Trial Court is directed to dispose of the matter within a time bound period and the appellant and respondent and their respective counsels are directed to assist the Trial Court in disposal of the matter.

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(iv) The appellant is also directed to file written statement, forthwith before the Trial Court to dispose of the matter within a time bound period of four months.

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Sd/(H.P.SANDESH) JUDGE

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ST

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List No.: 1 Sl No.: 57

B R Ravikumar v. Lakshmamma

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B R Ravikumar v. Lakshmamma

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