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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 26th DAY OF JULY, 2017

BEFORE

THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA

RSA.NO.480/2016 (PAR)

BETWEEN:

1. SMT MUNIVENKATAMMA
W/O LATE MUNISWAMAPPA,
AGED ABOUT 78 YEARS,

2. SHRI MUNIYAPPA
S/O LATE MUNISWAMAPPA,
AGED ABOUT 53 YEARS,
OCC: AGRICULTURIST,

3. SHRI KRISHNAPPA
S/O LATE MUNISWAMAPPA,
AGED ABOUT 48 YEARS,
OCC: AGRICULTURIST,

ALL ARE R/AT HOLLAMBALLI VILLAGE,

HUTURU HOBLI KOLAR TALUK,
KOLAR DISTRICT-563 101.
... APPELLANTS

(BY SRI G.A.SRIKANTE GOWDA., ADV.,)

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AND:

1. SHRI NARAYANAPPA
S/O LATE MUNISHAMAPPA,
AGED ABOUT 60 YEARS,
R/OF MARJENAHALLI VILLAGE,
KASABA HOBLI,
KOLAR TALUK-563 101.

2. MASTER RAHUL
S/O N.LOKESH,
AGED ABOUT 12 YEARS,

3. VARSHA SHREE
D/O N.LOKESH
AGED ABOUT 11 YEARS,

RESPONDENTS NO.2 AND 3 ARE

MINORS REPRESENTED BY
THEIR MOTHER AS NATURAL GUARDIAN
SMT SHAKUNTALA,
R/OF HOLLAMBALLI VILLAGE,
HOLURU HOBLI KOLAR TALUK-563 101.

4. SMT RATHNAMMA
W/O KRISHNAPPA,
AGED ABOUT 50 YEARS,
R/O HOLLAMBALLI VILLAGE,
HOLURU HOBLI,
KOLAR TALUK-563 101.

5. SMT MANJULAMMA
W/O ANANDAPPA,
AGED ABOUT 46 YEARS,
OCC:AGRICULTURIST,
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6. SMT CHOWDAMMA
D/O LATE MUNISHAMAPPA,
AGED ABOUT 37 YEARS,
OCC: SCHOOL TEACHER

BOTH RESPONDENTS NO.5 AND 6

ARE R/AT KARENJIKATTE,
KOLAR-563 101.
... RESPONDENTS

(BY SRI V.ANAND, ADV., FOR R1,

SRI VEERANNA G.TIGADI, ADV., FOR R2 & R3
R4, R5 & R6 ARE SERVED, UNREPRESENTED)

THIS RSA IS FILED UNDER SECTION 100 OF CPC

AGAINST THE JUDGMENT AND DECREE DATED 16.12.2015
PASSED IN R.A NO.12/2011 ON THE FILE OF THE I ADDL.
DISTRICT AND SESSIONS JUDGE, KOLAR, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 14.12.2010 PASSED IN O.S.NO.73/2007
ON THE FILE OF THE II ADDL., CIVIL JUDGE (SR.DN),
KOLAR.

THIS RSA COMING ON FOR ADMISSION THIS DAY,

THE COURT DELIVERED THE FOLLOWING:-
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JUDGMENT

This regular second appeal is preferred by the plaintiffs

challenging the concurrent judgments and decrees passed by

the courts below, whereby the suit of the plaintiffs was

dismissed by the trial Court and it was confirmed by the First

Appellate Court.

2. Heard Sri G.A.Srikante Gowda, learned counsel for

the appellants and Sri V.Anand, learned counsel for

respondent No.1 and Sri Veeranna G.Tigadi, learned counsel

for respondent Nos.2 and 3. Respondents No.4, 5 and 6 have

been served and remained unrepresented. Perused the

judgments and decrees passed by the courts below.

3. With the consent of learned counsel appearing for the

appellants and respondents No.1, 2 and 3, the appeal is

heard and disposed of finally.

4. The learned counsel for the appellants/plaintiffs

submits that the propositor Muniswamappa had a wife by

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name Munivenkatamma (1st plaintiff in the suit) and from her

he had three sons and three daughters namely (i) Muniyappa

(2nd plaintiff) (ii) Krishnappa (3rd plaintiff) (iii) Narayanappa

(1st defendant) (iv) Rathnamma (4th defendant) (v)

Manjulamma (5th defendant) and (iv) Chowdamma (6th

defendant).

5. He submits, wife and two sons of propositus

Muniswamappa filed a suit in O.S.No.73/2007 against

another and three daughters of said Muniswamappa for

partition and separate possession of their share in the suit

schedule properties.

6. According to the plaintiffs as they were not aware

that the properties mentioned by the defendants in their

written statement are also belonging to their joint family

could not include those properties in the schedule of the

plaint, even defendants did not furnish full particulars of

those properties in their written statement. The trial Court

instead of directing the defendants to furnish particulars of

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those properties and directing the plaintiffs to include those

properties in the schedule of the plaint has committed an

error in dismissing their suit holding that the suit for partial

partition is not maintainable. The 1st Appellate Court has also

committed the same mistakes by dismissing the regular

appeal preferred by them in R.A.No.12/2011 and confirming

the judgment and decree passed by the trial Court.

7. The learned counsel further submits that though

defendant No.1 in para 3 of his written statement has

furnished the survey numbers of those left out properties, the

trial Court instead of directing defendant No.1 to furnish

other particulars of those survey numbers such as extent and

boundaries and directing the plaintiffs to include those

properties in the schedule of the plaint has committed serious

error in dismissing the suit on the ground that the suit for

partial partition is not maintainable and the First Appellate

Court has also committed the same mistakes in dismissing

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the appeal and confirming the judgment passed by the trial

Court.

8. He further submits that since both the appellants

(plaintiffs) as well as 1st respondent (1st defendant) have made

I.A.Nos.1/2017 and 2/2017 respectively in this second appeal

praying permission of the Court to include those left out

properties in the schedule of the plaint, the appeal may be

allowed and the judgments and decrees passed by the courts

below may be set aside and matter may be remanded to the

trial Court for reconsideration of the suit afresh.

9. Sri V.Anand, learned counsel for respondent No.1

submits that the judgments and decrees passed by the

Courts below may be set aside and the matter may be

remitted back to the trial Court with a direction to reconsider

the suit afresh by permitting both the plaintiffs as well as 1st

defendant to include the left out properties belonging to their

joint family in the schedule of the plaint.

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10. Whereas, Sri Veeranna G.Tigadi, learned counsel

for respondents No.2 and 3 though tried to support the

judgment and decree passed by the courts below, however he

does not dispute the fact that all the properties belonging to

the joint family are not included in the schedule of the plaint.

11. In view of the above facts and circumstances of the

case and considering the submissions made by the learned

counsel appearing for the parties, it is just and proper to

allow the appeal and set aside the judgment and decree

passed by the courts below and remit the matter back to the

trial Court with a direction to reconsider the suit afresh by

granting opportunity to include all those left out properties in

the schedule of the plaint. Hence, the following

ORDER

The appeal is allowed. The judgment and decree dated

14.12.2010 passed in O.S.No.73/2007 by the II Addl. Civil

Judge (Sr.Dn.), Kolar and the judgment and decree dated

16.12.2015 passed in R.A.NO.12/2011 by the I Addl. District

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Judge, Kolar, are set aside. The matter stands remitted to the

trial Court with a direction to the trial Court to reconsider the

suit afresh and decide it on merits in accordance with law by

providing opportunity to all the parties to the suit.

I.A.Nos.1 and 2 of 2017 filed by the plaintiffs and 1st

defendant are ordered to be forwarded to the trial Court for

consideration after giving opportunities to all the parties to

the suit.

Since, the plaintiffs and defendants No.1, 2 and 3 were

represented through their Counsel they are directed to

appear before the trial Court in O.S.No.73/2007 at 3.00 p.m.,

on 22.01.2018 without expecting further notice from the trial

Court. On that day or on the next date of hearing, the

plaintiffs shall take out fresh notice to defendants No.4, 5 and

6 as they were served and remained unrepresented in this

appeal.
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In the event of the trial Court allowing the applications

filed by the plaintiffs and 1st defendant for inclusion of left out

properties in the schedule of the plaint, an opportunity may

be given to the parties to file additional written statement or

rejoinder as the case may be and give opportunities to the

parties to lead additional evidence, if any, and cross examine

on such additional evidence, if any party to the suit chooses

to do so.

Contentions of all the parties are lept open to be urged

in the suit.

The trial Court shall decide the suit within one year

from the date of service of notice on all the parties.

Registry shall transmit the I.As. and LCR to the trial

Court forthwith.

Sd/-
JUDGE

PB