IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.93/2012 BETWEEN:
SMT H NAGARATHNAMMA AGED ABOUT 58 YEARS W/O MUNIVENKATAPPA R/A NO.607/4, B MAIN ROAD, OMBER LAYOUT BHUVANAGIRI, BANASWADI BANGALORE CITY -560 095 ..APPELLANT (BY SRI R CHANDRANNA, ADVOCATE) AND:
1.V RAJGOPAL AGED ABOUT 37 YEARS S/O LATE VENKATARAYAPPA R/A DODDAGOLLAHALLI, A.D.POST, KUNDANA HOBLI, DEVANAHALLI TALUK BANGALORE RURAL DISTRICT-562110 2.SRI. SHAMANNA MAJOR S/O. KEMPANNA R/O. SEEKAYANAHALLI VISWANATHAPURA POST, KUNDANA HOBLI, DEVANAHALLI TALUK BANGALORE RURAL DISTRICT-562110 ..RESPONDENTS (BY SMT S K NAGARATHNA, ADVOCATE FOR R1, R2- SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:20.09.2011 PASSED IN R.A.NO.28/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, DEVANAHALLI, PARTLY ALLOWING THE APPEAL AND PARTLY SETTING ASIDE THE JUDGMENT AND DECREE DATED:16.08.2010 PASSED IN O.S.NO.262/2004 ON THE FILE OF THE CIVIL JUDGE AND JMFC., DEVANAHALLI.
THIS RSA COMING ON FOR DICTATION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Appeal is directed against the Judgment and decree passed in R.A.No.28/2010 dated 20.09.2011 wherein the appeal preferred by one V.Rajgopal came to be allowed in part. The relief of injunction was granted by the appellate court in R.A.No.28/2010 and order of permanent injunction was ordered to be in force till the disposal of the partition suit No.1256/2006 and it is specifically observed that till the disposal of the said partition suit there shall not be interference by the defendants over the possession and enjoyment of the plaintiff therein over the suit schedule properties. The present appeal is preferred by defendant No.1.
2. In order to avoid confusion and overlapping parties are referred in accordance with respective ranks held by them before the trial court.
3. In order to mention the facts of the present case the earlier proceedings between the parties connecting schedule properties is worth to be mentioned.
4. It is stated that one Hanumantharayappa and Gopalappa are brothers, but Hanumatharayappa is no more. One Rajgopal, son of Venkatrayappa filed a suit for declaration and permanent injunction against the defendants –Nagaratnamma (maternal aunt) and Shamanna. The suit schedule properties consisted of vacant land being used for cultivation.
5. It was the claim of the plaintiff- Rajgopal that family partition was orally effected during 1995 and that was acted upon by all the concerned members of the Hindu Joint family. Plaintiff further claimed that his name was mutated in revenue records with the specific endorsement at Exhibit P-60 wherein khatha of the property in question in Sy.No.107/1 to an extent of 2 acres 24 guntas of Doddagollahalli village, was in pursuance of partition among the family members. It is necessary to mention the relationship between the parties.
Plaintiff (1) V.Rajgopal, S/o Venkatrayappa, grandson of H.Hanumantharayappa Defendants (1) Nagarathnamma, W/o Munivenkatappa, daughter of H.Hanumantharayappa (2) Shamanna – non relative.
6. The suit filed by the plaintiff for declaration and permanent injunction in O.S.No.262/2004 came to be dismissed against which plaintiff preferred appeal before Fast Track Court, Devanahalli, in R.A.No.28/2010.
7. The appeal came to be allowed in part before learned appellate Judge and permanent injunction came to be granted till disposal of partition suit filed by one Manjunath in O.S.No.1256/2006 on the file of Civil Judge, Senior Division and JMFC at Devanahalli. Having taken note of the said suit said to be for partition instituted by G.Manjunatha, S/o Gopalappa, it is necessary to make a mention that said Gopalappa is the brother of Hanumantharayappa, the grandfather of plaintiff.
8. In the said suit defendants are (1)Gopalappa (father of plaintiff therein) (2) Papamma, second wife of Hanumantharayappa (3) Srinivasagowda, son of Hanumantharayappa (4) Manjunatha gowda, son of Hanmantharayappa, (5) Anjinegowda, son of late Hanumantharayappa, (6) Mangala Gowri, daughter of Hanumantharayappa, (7) Rajgopal, the plaintiff herein son of Venkataramanappa or grandson of Hanumantharayappa, (8) Papamma, (9) Chandramma (10) Nagarathnamma, last daughter of Hanumantharayappa. Defendants 11 to 17 are the purchasers of the property.
9. Learned counsel for appellant would submit that the relief of permanent injunction granted by the first appellate court is supposed to be in force till disposal of partition suit. Learned counsel would further submit that the bone of contention have become uncertain in the light of the said order. Insofar as filing of suit for declaration and permanent injunction by Rajgopal and the merits of partition suit with reference to claims and contentions of the parties are different from one suit to another.
10. Learned counsel for respondent would submit that despite right of the parties are not divested because of the decree passed by the first appellate court. Suit for partition is a comprehensive suit and other suits are bound to be subject to the outcome of suit for partition and if the decree passed by first appellate court is accepted unnecessary difficulties would crop up.
11. It is necessary to make a mention that scope of present suit O.S.No.262/2004 is that it is for declaration of title and permanent injunction in respect of the suit schedule properties bearing Sy.No.106 and 107/1 at Doddagollahalli, Devanahalli Taluk. Plaintiff claims that there was a family oral partition during the year 1995 and said property has come to the share of the plaintiff and who seeks declaration of title and permanent injunction, claiming that even revenue records were mutated in pursuance of the said partition. It is in this connection learned counsel Smt.S.K.Nagarathna would submit that Exhibit P-60 is endorsement regarding mutation entry made in favour of the plaintiff regarding partition of the year 1995. It is necessary at this stage to mention the facts regarding subsequent suit for partition filed by said G.Manjunatha, son of Gopalappa against 18 defendants including 8 related and 10 non relatives who are purchasers from different defendants wherein plaintiff claims that all the joint family members are in joint possession and enjoyment of the entire property.
12. It is stated that said partition suit is still pending and issues are yet to be framed. Order passed in R.A.No.28/2010 which is against the Judgment and decree passed in O.S.No.262/2004 filed by plaintiff- Rajgopal was dismissed on 16.08.2010.
13. Plaintiff-Rajgopal preferred appeal in R.A.No.28/2010 that came to be allowed in part on 20.09.2011 wherein conditional order of permanent injunction was granted and it was made a time bound one as the defendants therein were directed not to interfere with the possession and enjoyment of the plaintiff –Rajgopal over the suit schedule properties therein till the partition suit is disposed of finally.
14. It is quite understandable that partition suit with all the incidental proceedings forms a comprehensive suit to adjudicate the rights and liabilities of the parties. The share consisting of undivided right, title, interest and possession of a member of a joint family would go in the hands of a thirty party subject to the result of partition suit. However, it is the duty of the court to leave the matters to be adjudicated as they are, without entering jurisdiction of the other court. In this connection no doubt time bound permanent injunction is granted in R.A.No.28/2010 subject to outcome of suit for partition in O.S.No.1256/2006 incidentally paving way for conflict and unwarranted controversy is likely to happen when the suit filed by one of the members of a joint family seeking partition in respect of the entire joint family properties wherein a property is sold by a member of the family to another member becomes one of the properties sought for partition.
15. In the circumstances it is made clear by this time that O.S.No.262/2004 for declaration of title and injunction filed by plaintiff-Rajgopal and at the same time O.S.No.1256/2006 is a suit filed by Manjunatha, son of Gopalappa for partition wherein said Manjunatha claims that no partition was effected earlier and partition of joint family properties are supposed to be conducted. Thus, earlier partition was not accepted by plaintiff therein. However, even the trial Judge orders for the approach of wait till the disposal of the partition suit. In the overall circumstances of the case O.S.No.1256/2006 is pending before the Civil Judge, Senior Division and JMFC, Devanahalli and present appeal that emanates from R.A.No.28/2010 which surfaces because of O.S.No.262/2004 on the file of Additional Civil Judge and JMFC, Devanahalli.
16. Thus in the circumstances, the trial court erred in dismissing a suit for declaration of title and permanent injunction during pendency of a suit for partition. Similarly the appellate Judge also has not considered the pendency of the partition suit and its nature of being comprehensive. In the circumstances of the case the present texture of the suit and the relief claimed and granted will have to bear the impact of final disposal of the partition suit. In the facts and circumstances of the case, learned trial Judge erred in not considering the scope and effect of partition suit in O.S.No.1256/2006 and learned appellate Judge decided to keep the relief in the appeal subject to disposal of original suit for partition in O.S.1256/2006. Learned first appellate Judge erred by passing an order which is not clear by itself.
17. In the circumstances, it means and would be to transfer the entire file connected to O.S.No.262/2004 on the file of Addl. Civil Judge and JMFC, Devanahalli and R.A.No.28/2010 on the file of Presiding Officer, Fast Track Court, Devanahalli to the court of Civil Judge, Senior Division, Devanahalli, to be tried along with O.S.No.1256/2006.
18. In order to enforce the same, Judgment and decree passed by both the Trial Judge and first appellate Judge are liable to be set aside and same is done.
In the result, appeal is allowed. Judgment and decree dated 20.09.2011 passed in R.A.No.28/2010 by the Presiding Officer, Fast Track Court, Devanahalli, and Judgment and decree dated 16.08.2010 passed in O.S.No.262/2004 by the Additional Civil Judge and JMFC, Devanahalli, are set aside. Matter is remanded to trial court with a direction to Civil Judge, Senior Division, Devanahalli, to dispose of both O.S.No.1256/2006 and O.S.No.262/2004 together as early as possible giving full opportunity to the parties within an outer limit of ten months from the date of receipt of certified copy of this order.
Sd/- JUDGE SBN