- 1 - NC: 2025:KHC:2733 RFA No. 2313 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE K.NATARAJAN REGULAR FIRST APPEAL NO. 2313 OF 2019 (PAR-) BETWEEN: SMT. JAYAMMA W/O KRISHNAPPA, AND D/O LATE DODDASONNAPPA, AGED ABOUT 62 YEARS, PRESENTLY RESIDING AT BHATTARAMARENAHALLI VILLAGE, CHANNARAYAPATNA HOBLI, DEVANAHALLI TALUK - 562 135. BANGALORE RURAL DISTRICT. …APPELLANT (BY SRI. SUNIL S. RAO, ADVOCATE) AND: 1. SRI. KEMPANNA S/O LATE DODDASONNAPPA, AGED ABOUT 74 YEARS, PRESENTLY RESIDING AT NAGAMANGALA VILLAGE, JANGAMAKOTE HOBLI, SHIDLAGHATTA TALUK - 562 102. CHIKKABALLAPURA DISTRICT. Digitally signed by VEDAVATHI A K Location: High Court of Karnataka - 2 - NC: 2025:KHC:2733 RFA No. 2313 of 2019 2. SRI. SUBASH CHANDRA S/O LATE DODDASONNAPPA, AGED ABOUT 59 YEARS, PRESENTLY RESIDING AT CHEEMACHANAHALLI VILLAGE, DEVANAHALLI TALUK - 562 135. BANGALORE RURAL DISTRICT. 3. SRI. DODDAPPAIAH S/O LATE DODDASONNAPPA, AGED ABOUT 54 YEARS, PRESENTLY RESIDING AT CHEEMACHANAHALLI VILLAGE, CHANNARAYAPATNA HOBLI, DEVANAHALLI TALUK - 562 135. BANGALORE RURAL DISTRICT. …RESPONDENTS (BY SRI. K. SHIVASHANKAR, ADVOCATE FOR R1; SRI. SHRINIVAS M. KULKARNI, ADVOCATE FOR R2; R3 IS SERVED & UNREPRESENTED) THIS RFA IS FILED UNDER SEC.96 R/W.ORDER 41 RULE 1 OF THE CPC., 1908 AGAINST THE ORDER DATED 04.11.2019 PASSED ON IA NO.5 IN OS NO.734/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., DEVANAHALLI ALLOWING THE IA NO.5 FILED UNDER ORDER VII RULE 11(a) R/W.SEC.151 OF CPC. FOR REJECTION OF PLAINT. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC:2733 RFA No. 2313 of 2019 CORAM: HON'BLE MR JUSTICE K.NATARAJAN ORAL JUDGMENT This appeal is filed by the appellant/plaintiff under Section 96 of CPC., for setting aside the order passed by the Trial Court in O.S.No.734/2015 dated 04.11.2019, for having rejecting the plaint of the appellant on the application filed by the respondent/defendant under Order VII Rule 11(a) of CPC. 2. Heard the arguments of learned counsel for the appellant as well as respondent. 3. The parties before the Trial Court are, the appellant is the plaintiff and the respondents are the defendants before the Trial Court. 4. The ranks of the parties is retained as before the trial Court, for the sake of convenience. 5. The case of the plaintiff before the Trial Court is that, the plaintiff and the respondent Nos.1 to 3 said to be children of one Doddasonnappa, they are having ancestral property. The father Doddasonnappa died intestate, leaving behind his two wives namely, first wife Narayanamma died - 4 - NC: 2025:KHC:2733 RFA No. 2313 of 2019 leaving behind her children namely, S.K.Kempanna, the first defendant herein, Jayamma, the plaintiff herein, and Subashchandra the 2nd defendant herein. The second wife by name Kempamma died leaving behind only son Doddapapaiah, the 3rd defendant herein to succeed his estate and they are all members of undivided joint family members governed by Mithakshara School of Hindu Law. They also produced the genealogical tree. It is submitted that the suit schedule properties are the joint family properties. The plaintiff and defendants are in joint possession and enjoyment of the suit schedule properties. She came to know that the defendants by colluding with each other without showing the name of the plaintiff got changed the khatha into their names vide MR.No.4/2001-02, M.R.No.1/2001-02 and M.T.No.01/2001-02. The defendants also filed the suit for partition O.S.No.2105/2006 and it was decreed on 28.06.2011, in that suit also defendants not made the plaintiff as party and obtained the decree and the same is not binding on the plaintiff. Hence, prayed for grating 1/4th share in the suit schedule properties. - 5 - NC: 2025:KHC:2733 RFA No. 2313 of 2019 6. Summons were issued to the defendants, accordingly, defendants appeared. The 1st defendant appeared and filed IA.No.5 under Order VII Rule 11(a) for rejection of plaint. It is contended by the defendant that originally the property belongs to one Mayanna, who said to be having two children namely Channappa and Munichannappa. The Channappa having three sons namely Dodda Sonnappa, late Mayanna and Gudiyappa. The Munichannappa having two sons namely Chikkasonnappa and Narayanappa. The said Narayanappa filed the suit in OS.No.473/1996 for partition, the same was compromised on 30.09.1997, a decree was passed and partition was registered between them. Subsequently, share fallen to the family members of the first defendant and his brothers 'A' schedule property in OS.No.473/1996, has been jointly enjoyed by the brothers of the defendant Nos.1 to 3 and the first defendant filed a suit against his brothers and mother(2nd wife of his father) in OS.No.2105/2006, and suit was decreed, the same was upheld by the first appellate court and Hon'ble High Court of Karnataka. After dismissal of the appeal, the second defendant filed the suit, they suppressed the partition held in the year 1997 itself. Therefore, once - 6 - NC: 2025:KHC:2733 RFA No. 2313 of 2019 partition was held by way of court decree, the plaintiff being a daughter is not entitle for any share or cannot be considered as co-parcener, subsequent to 25.12.2004, as the partition already effected in the family members. Therefore, the plaint itself is liable to be rejected. Hence, prayed for dismissing the appeal. 7. The Trial Court after hearing the arguments, allowed the interlocutory application filed by the respondent/ defendant and rejected the plaint. Accordingly, the appellant/plaintiff is before this court. 8. The learned counsel for the appellant has contended that the Trial Court committed an error in rejecting the plaint only based upon the written statement and averments made by the respondent in the application that cannot be looked into. Where there is no reference in respect of earlier suit in OS.No.473/1996 and compromise decree and partition effected in the family members, there is nothing referred in OS.No. 2105/2006, it was among the defendant Nos.1 to 4 by excluding plaintiff. Therefore, the plaintiff is not aware about the earlier partition, the suit properties are the joint family - 7 - NC: 2025:KHC:2733 RFA No. 2313 of 2019 property, the plaintiff and defendants are entitle for the share. Therefore, she is entitle for 1/4th share. The Trial Court without looking into the factual issue, based upon the defendants contention rejected the plaint which is not correct. Hence, prayed for setting aside the same and remitting back to the Trial Court for the fresh trial. 9. Per contra learned counsel for the respondents has contended that the prior partition among the family members are not in dispute, it is an admitted fact that the family of the defendants have got the share in OS.No.473/1996, the plaintiff is having knowledge about the said suit and decree and the share fallen to the family of his father i.e., Doddasonnappa has been enjoyed by the brothers and among them there was no partition, therefore defendant No.1 filed the suit in OS.No.2105/2006 against brother and obtained 1/3rd share in the suit schedule property by way of decree. Once the decree has been passed, partition was effected, it was registered partition, as per explanation to the 6(A) of the Indian Succession Act, the plaintiff cannot be a co-parcenar as per explanation to the provision. Therefore, the suit itself is barred - 8 - NC: 2025:KHC:2733 RFA No. 2313 of 2019 by law and it is supported the order passed by the Trial Court. Hence, prayed for dismissing of the appeal. 10. Having heard the arguments and perused the records, the point that arises for my consideration is; 1) Whether the Trial Court justified in rejecting the plaint as the suit is barred by law based upon the averments made by the defendant in the interlocutory application or written statement, which call for the interference? 11. On careful perusal of the pleading, the plaintiff never stated in the plaint that the suit schedule property was fallen to the share of their family or father under the partition effected in OS.No.473/1996. Where as stated that the suit schedule property is the ancestral property and jointly in possession of the plaintiff and the defendants. And it is undivided joint family properties of their father. However, she has stated that she came to know the defendants by colluding with each other without showing the name of the plaintiff got changed the khatha into their names vide MR.No.4/2001-02, M.R.No.1/2001-02 and M.T.No.01/2001-02. The defendants also filed the suit for partition in O.S.No.2105/2006 and it was - 9 - NC: 2025:KHC:2733 RFA No. 2313 of 2019 decreed on 28.06.2011, in that suit also defendants not made the plaintiff as party and obtained the decree and the same is not binding on the plaintiff. A copy of the decree and plaint also produced in O.S.No.2105/2006. I have verified the plaint as well as judgment passed in O.S.No.2105/2006. On careful reading of the plaint filed by the very first defendant/respondent Kempanna in OS.No.2105/2006, he never stated there was a partition among the family members in O.S.No.473/96 and it was compromised on 30.09.1997 and the suit schedule property was fallen to the share of the plaintiff and defendant Nos.1 to 3 in the earlier suit in O.S.No.473/96. There is no reference in the plaint as well as the judgment passed by the Trial Court in OS.No.2105/2006. Nowhere it is stated by either parties that the suit schedule properties were partitioned among the joint family members of the ancestral i.e., grand children of Mayanna i.e., Chikka Sonnappa, Narayanappa who are the sons of Munichannappa and Doddasonnappa who is the father of the defendant No.1, and Mayanna and Gudiyappa who are the sons of Channappa. But the judgment shows that the property was joint family property, therefore the plaintiff Kempanna (Defendant No.1) is - 10 - NC: 2025:KHC:2733 RFA No. 2313 of 2019 entitle for 1/3rd share and suit was decreed, which is challenged by the plaintiff in the present suit, that the said decree is not binding to the plaintiff. As stated above on the pleadings, decree as well as judgment in OS.No.2105/2006, there is no reference regarding the prior partition held between the family members prior to 2005 i.e., 30.09.1997. Of course the pleadings has been reverted by the defendant in the written statement. The Trial Court based upon the statement and the defence taken by the respondent/defendant and considered there was a earlier partition in OS.No.473/96, it is not the case of the plaintiff in the suit and not the case of the defendant in the earlier suit in OS.No.2105/2006. Therefore, when the defence taken in the pleadings the Trial Court required to be adjudicated the matter by framing the necessary issues in respect of the plaint averments as well as defence taken by the defendants. Based upon the defendant statement the plaint cannot be rejected. Of course it is settled possession of law. As per the explanation when there is a earlier partition prior to cut of date i.e., 20.12.2004 if any registered partition among the family members or decree of partition in earlier suit, daughter cannot be entitle for the share in the ancestral property, - 11 - NC: 2025:KHC:2733 RFA No. 2313 of 2019 subsequent to the amendment if the partition already effected. Such being the case the Trial Court based upon averments made in the written statement and defence taken by the defendant cannot be considered as a ground for rejecting the plaint. Therefore, the orders under challenge required call for the interference. Accordingly, the appeal is allowed. The order passed by the Trial Court for rejection of the plaint is hereby set aside. The matter is remitted back to the Trial Court for framing of necessary issues. The contentions taken by the defendants are kept open. Sd/- (K.NATARAJAN) JUDGE SRK List No.: 1 Sl No.: 47 CT:SK