Sri. a Venkat Rao Vs Sri. a Muralidhara

AGED ABOUT 46 YEARS. RESPONDENTS NO.11 TO 16 ARE AT 1-6-27/3/A ROAD NO.37 NEW NO.1-6-43 THIMMAPPA NILAYA CHAITANYA PURI COLONY DILKUSHNAGAR HYDERABAD ANDRAPRADESH - 500 060.

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SMT. VASANTHI W/O PADMANABHA UPADHYA AGED ABOUT 70 YEARS R/AT L/G-21 3RD MAIN ROAD I BLOCK RAMAKRISHNA NAGAR MYSORE 22 KARNATAKA STATE.

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SRI B.K. SRINIVAS RAO S/O KRISHNAVENI AGED ABOUT 65 YEARS R/AT NO.165 VTH CROSS SRI VENKATESHWARA NAGAR LAYOUT JAKKUR BANGALORE - 560 064.

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SRI MADHAVA RAO S/O KRISHNAVENI AGED ABOUT 64 YEARS R/AT BAILU MANE HOSUE NEAR PVS KALAKUNJA MANGALORE - 575 003.

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SRI B RAJASHEKARA S/O KRISHNAVENI AGED ABOUT 58 YEARS R/AT NO.13 IST FLOOR K V LANE IST CROSS OPP RADHAKRISHNA DELUXE LODGE COTTONPET CROSS, AKKIPET BANGALORE - 560 053 KARNATAKA STATE.

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SRI B.K. SUDHEENDRA S/O KRISHNAVENI AGED ABOUT 55 YEARS, R/AT NO.13, 1ST FLOOR, K V LANE, FIRST CROSS,

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OPP. RADHAKRISHNA DELUXE LODGE, COTTONPET CROSS, AKKIPET BANGALORE - 560 053.

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SRI B. RAGHAVENDRA S/O KRISHNAVENI AGED ABOUT 52 YEARS, R/AT BAILU MANE HOUSE NEAR PVS KALAKUNJA MANGALORE - 575 003.

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…RESPONDENTS

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(BY SRI SWAMINI GANESH MOHANAMLAL, ADV., FOR SRI SANDEEP S. PATIL, ADV., FOR R-1, R-4, R-8 & R-10; R-5, R-6, R-7, R-9, R-11, R-12, R-13, R-14, R-15, R-16, R-17 AND R-22 SRVED & UNREPRESENTED V/O/DTD 15.09.2025 NOTICE TO R-2, R-3, R-20 & R-21 ARE H/S, NOTICE TO R-18 & R-19 ARE D/W)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INIDA PRAYING TO QUASH THE ORDER DTD. 31.05.2021 PASSED I NIA NO.VIII, UNDER ORDER 20 RULE 18 READ WITH SECTION 151 OF CPC TO DRAW AN ADDITIONAL / FURTHER PRELIMINARY DECREE BY INCLUDING THE APPLICATION SCHEDULE PROPERTY AND TO CARVE OUT TOTAL 1/2 SHARE TO THE PETITIONERS AND R-1 TO 5 IN FDP NO.24/2014 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC AT BANTWAL i.e., ANNX-J AND CONSEQUENTLY ALLOWED THE APPLICATION AND INCLUDED APPLICATION SCHEDULE PROPERTY IN THE FDP NO.24/2014 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC AT BANTWAL.

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

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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This writ petition under Article 227 of the Constitution of

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India is filed with a prayer to set-aside the order dated 31.05.2021 passed on IA No.8 filed under Order XX Rule 18

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read with Section 151 of CPC in FDP No.24/2014 by the Court of Principal Civil Judge and JMFC, Bantwal.

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Heard the learned counsel for the parties.

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The suit in OS No.6/2008 was filed before the jurisdictional Civil Court at Bantwal seeking the relief of partition and separate possession of the suit schedule properties. The said suit was decreed on 11.11.2011 and accordingly, a preliminary decree was drawn. Final decree proceedings in FDP No.24/2014 was thereafter initiated before the Trial Court and in the said proceedings, an application was filed on behalf of the petitioners under Order XX Rule 18 read with Section 151 of CPC to include certain immovable properties which were left out in the preliminary decree passed in OS No.6/2008. The said application was opposed by filing objections and the Trial Court vide the order impugned has rejected the said application, namely, IA No.8. Being aggrieved by the same, petitioners are before this Court.

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Learned counsel for the petitioners submits that the properties which are sought to be included in the final decree

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proceedings are joint family properties which were left out in the preliminary decree passed in OS No.06/2008. Petitioners had filed separate suit in OS No.365/2012 before the jurisdictional Civil Court at Mangaluru seeking the relief of partition and separate possession of the properties which is now sought to be included in the preliminary decree passed in OS No.06/2008. OS No.365/2012 was dismissed with an observation that the said suit is barred by res judicata and the remedy open to the plaintiffs in OS No.365/2012 is to make a claim in respect of the said properties in the final decree proceedings. It is under these circumstances, IA No.8 has been filed which has been rejected by the Trial Court.

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Per contra, learned counsel for the contesting respondents has argued in support of the order impugned. She submits that petitioners were all along aware that the properties in question were not included in OS No.06/2008. Instead of filing necessary application in the said suit, they had filed a separate suit in OS No.365/2012, which is now rejected. Having suffered an order in OS No.365/2012, belatedly they have filed application IA No.8 in the final decree proceedings

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and Trial Court has rightly rejected the said application. She submits that properties which are left out in a preliminary decree cannot be included in the final decree proceedings and in support of her contention, she has placed reliance on the judgment of the Co-ordinate Bench of this Court in the case of Sri Channaveerappa Gowda vs. Sri Renukappa Gowda and Others - 2014 SCC OnLine Kar 12228.

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It is not in dispute that properties which are now sought to be included in the final decree proceedings arising out of OS No.6/2008 were not part of the preliminary decree passed in OS No.6/2008. The material on record would go to show that petitioners who are defendants in OS No.06/2008 had filed a separate suit in OS No.365/2012 before the jurisdictional Civil Court at Mangaluru, seeking partition and separate possession of the left out properties in OS No.6/2008. The jurisdictional Civil Court has dismissed OS No.365/2012 by judgment and decree dated 02.02.2019 and in the said suit, it has been held that defendant Nos.5 and 7 in OS No.365/2012 have proved that the suit is hit by doctrine of res judicata as provided under Section 11 of CPC. Defendant Nos.5 and 7 in OS No.365/2012

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are plaintiffs in OS No.6/2008. The jurisdictional Civil Court while dismissing OS No.365/2012 has observed that remedy to the plaintiffs in OS No.365/2012, who are the petitioners herein is not lost and they can make a claim for their rights in the final decree proceedings arising out of OS No.6/2008. It appears that it is under these circumstances, petitioners have filed IA No.8 in FDP No.24/2014, which arises out of OS No.6/2008.

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It is trite that final decree proceedings is continuation of a suit and suit for partition comes to an end only when final decree is drawn. This Court in the case of Smt. Sokkamma vs. H.N. Sonnappa and Others - WP No.12689/2021 disposed of on 28.10.2025 having referred to the judgment of the Co-ordinate Bench of this Court in the case of Channaveerappa Gowda vs. Renukappa Gowda - 2014 (3) KCCR 2214 and placing reliance on the judgment of the Hon'ble Supreme Court in the cases of Phoolchand and Another vs. Gopal Lal - AIR 1967 SC 1470, Ganduri Koteshwaramma and Anr vs. Chakiriyanadi and Anr - (2011) 9 SCC 788 and S. Satnam Singh and Ors. vs. Surender Kaur and Anr. - (2009) 2 SCC 562, has held that

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a property which is left out in a preliminary decree can be included in the final decree proceedings.

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In the present case, the jurisdictional Civil Court while dismissing OS No.365/2012 has made a specific observation that the remedy available to the petitioners is in the final decree proceedings which arises out of OS No.6/2008. Therefore, I am of the opinion that the Trial Court was not justified in rejecting IA No.8 filed on behalf of the petitioners. Accordingly, the following order:-

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The writ petition is allowed . The order dated 31.05.2021 passed on IA No.8 filed under Order XX Rule 18 read with Section 151 of CPC in FDP No.24/2014 by the Court of Principal Civil Judge and JMFC, Bantwal, is set-aside and consequently, the prayer made in IA No.8 is granted.

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All contentions urged on behalf of both the parties are left open.

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In view of the disposal of the main petition, pending interlocutory application if any, does not survive for consideration. Accordingly, the same is disposed off.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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DN List No.: 1 Sl No.: 35

Sri. a Venkat Rao v. Sri. a Muralidhara

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Sri. a Venkat Rao v. Sri. a Muralidhara

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