- 1 - NC: 2025:KHC-D:6213-DB RFA No. 100529 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 7TH DAY OF APRIL, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO. 100529 OF 2024 (PAR/POS) BETWEEN: SRI. PRASHANT NARASIMHA HEGDE, S/O. LATE NARASIMHA SUBRAYA HEGDE, AGED ABOUT 61 YEARS, RESIDING AT FLAT NO.206, 2ND FLOOR, BENAKA BOOMS, LIBERO APARTMENTS, NEW BELLA ROAD, SEENAPPA LAYOUT, PO. RMV EXTENSION 2ND STAGE, BANGALORE 560094. …APPELLANT (BY SRI. SOURABH HEGDE, ADVOCATE) AND: 1. SRI. GANAPATI NARASIMHA HEDGE, S/O. NARASIMHA SUBRAYA HEGDE, AGED ABOUT 67 YEARS, RESIDENT OF MUREGAR, PO.- KOLIGAR, TALUK - SIRSI. 2. SMT. ASHA (ASHOKA) W/O. GANAPTHI HEDGE, AGED ABOUT 65 YEARS, RESIDENT OF KALTEHALLA SADASHIVALLI, PO.- TARGOD, TALUK- SIRSI. VISHAL NINGAPPA PATTIHAL Digitally signed by VISHAL NINGAPPA PATTIHAL Location: HIGH COURT OF KARNATAKA Date: 2025.04.19 11:28:40 +0530 - 2 - NC: 2025:KHC-D:6213-DB RFA No. 100529 of 2024 3. SMT. VINODA W/O. SUBRAY HEGDE, AGED ABOUT 63 YEARS, RESIDENT OF KALAGINAONIKERI, PO.-MELINA ONIKERI, TALUK-SIRSI. …RESPONDENTS (BY SRI. A.P. HEGDE, ADV. FOR RESPONDENTS NO.2 AND 3) THIS R.F.A. IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC. 1908 PRAYING TO CALL FOR THE RECORDS IN O.S.NO.140/2023 ON THE FILE OF SENIOR CIVIL JUDGE AND PRINCIPAL JUDICIAL MAGISTRATE FIRST CLASS COURT, SIRSI DATED 26.09.2024 AND TO SET ASIDE THE ORDER DATED 26.09.2024 PASSED BY THE SENIOR CIVIL JUDGE AND PRINCIPAL JUDICIAL MAGISTRATE FIRST CLASS COURT, AT SIRSI, IN O.S.NO.140/2023 AND CONSEQUENTLY RESTORE THE SUIT FILED BY THE APPELLANT/PLAINTIFF AND DIRECT THE COURT BELOW TO DECIDE THE CASE ON MERITS, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA - 3 - NC: 2025:KHC-D:6213-DB RFA No. 100529 of 2024 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) Captioned appeal is filed by the plaintiff assailing the order dated 26.09.2024 passed by the Court of Senior Civil Judge and Principal JMFC, Sirsi in O.S.No.140/2023, thereby dismissing the suit filed by plaintiff seeking for partition, as not maintainable. The said order is under challenge. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. 3. Before we proceed to examine the rival contentions, we deem it appropriate to take cognizance of the family tree, which is as under: Narasimha Subray Hegde (died) Susheela Narasimha Hegde (died) (wife) Ganapathi Asha (Ashoka) Vinoda Prashant (Son) (Daughter) (Daughter) (Son) (Married before 1989) (Married before 1989) - 4 - NC: 2025:KHC-D:6213-DB RFA No. 100529 of 2024 4. The learned counsel for the appellant-plaintiff strenuously contended that the procedure adopted by the trial court in dismissing the suit on the ground of maintainability was improper and legally unsustainable. He argued that the learned Judge erred in summarily rejecting the suit without affording the parties an opportunity for a full-fledged trial. Upon a closer perusal of the records, it becomes evident that the trial court did not non-suit the plaintiff merely while deciding the application filed under Section 42 of the Karnataka Court Fees and Suits Valuation Act, 1958. Although the impugned order begins with a reference to the said application under Section 42, the operative portion reveals that the Court also considered the issue of maintainability on merits. 5. The trial Court took note of the fact that defendants No.2 and 3, who are the sisters of the plaintiff had already instituted a suit for partition in O.S.No.38/2023, which is currently pending adjudication. The learned Judge observed that the present suit filed by the plaintiff, seeking partition and separate possession by merely including one additional - 5 - NC: 2025:KHC-D:6213-DB RFA No. 100529 of 2024 property (Sy. No.75, measuring 37 guntas), amounts to a parallel proceeding. The court held that even if the said property was not included in the earlier suit filed by the sisters, the plaintiff had the remedy of asserting his rights by filing a counterclaim in the pending suit, O.S. No.38/2023. 6. In response, the learned counsel for defendants No.2 and 3 submitted that both parties had, in fact, addressed the issue of maintainability, as reflected in the order sheet dated 09.07.2024. He further pointed out that the plaintiff had also submitted written arguments, explaining the reasons behind filing a separate suit for partition during the pendency of the earlier suit filed by the sisters. According to him, the trial court rightly concluded that the present suit was not maintainable, given the availability of an alternative remedy in the form of a counterclaim in the earlier proceeding. 7. We have heard the arguments advanced by the learned counsel for the appellant-plaintiff and the respondent-defendants No.2 and 3. Although notice has not - 6 - NC: 2025:KHC-D:6213-DB RFA No. 100529 of 2024 been served on defendant No.1, we find it appropriate to proceed with the adjudication of this appeal on merits, particularly in light of the rights and interests of defendants No.2 and 3, who are already pursuing a partition suit in O.S. No.38/2023. 8. The following point would arise for our consideration is : Whether the learned Judge was justified in dismissing the suit as not maintainable by having taken note of the fact that respondent/defendants No.2 and 3 have already filed a suit for partition and same is pending consideration in O.S.No.38/2023? Finding on point formulated as under: 9. Before delving into the merits of the order impugned in this appeal, we have carefully perused the pleadings, particularly paragraph No.15 of the plaint, which, in our considered opinion, bears significant relevance to the core controversy at hand. This specific averment appears to shed light on the motivation behind the plaintiff instituting the - 7 - NC: 2025:KHC-D:6213-DB RFA No. 100529 of 2024 present suit for partition, despite the existence of an earlier suit—O.S. No.38/2023 filed by his sisters (defendants No.2 and 3 herein) seeking similar relief. The contents of paragraph No.15, in our view, serve as a crucial piece of the narrative and appear to be the fulcrum on which the plaintiff seeks to justify the maintainability of the present suit. 10. Paragraph No.15 of the plaint discloses that the plaintiff’s specific grievance regarding the omission of certain properties most notably Sy. No.75 measuring 37 guntas in the earlier partition suit filed by the sisters. The plaintiff avers that despite being co-sharers and co-parceners, the sisters deliberately excluded this particular property, which according to him, is part of the joint family estate. He further asserts that he has a legitimate share in said property, and since the earlier suit does not encompass the entirety of the joint family properties, the need arose to institute a separate suit for comprehensive adjudication of all properties allegedly belonging to the joint family. 11. The plaintiff also emphasizes that he was not made a party to the partition suit in respect of certain properties - 8 - NC: 2025:KHC-D:6213-DB RFA No. 100529 of 2024 and that the scope of the earlier suit is too narrow to accommodate his claims in totality. On this premise, he contends that filing an independent suit was both necessary and justified, as the only feasible legal recourse available to ensure that all properties, including the omitted ones, are brought within the fold of partition proceedings. 12. In light of the above, and given the significance of these assertions in understanding the plaintiff’s stand, we find it necessary and appropriate to extract paragraph No.15 of the plaint in full, so as to appreciate the factual foundation of the present appeal in a holistic manner. “15. The plaintiff submits that the first defendant has engaged the marriage of his son and his son Santosh Hegde marriage was solemnized luxuriously on 25.03.2012 since he has passed the UPSC exam and employed in Indian Railways as a IRS officer. During that period the plaintiff is struggling to survive his daughter borrowing money from several banks and friendly persons and the first defendant is not at all worried about the daughter of the plaintiff. After luxurious marriage of his son/Childers the first defendant has sold the 37 guntas cultivated good yielding arecanut land in survey No.75 of Muregar village as his share in the property and received the entire sale consideration and for the said sale neither the 2nd and 3rd - 9 - NC: 2025:KHC-D:6213-DB RFA No. 100529 of 2024 defendant nor the father and mother of the parties herein has not raised any objection since all of them knows that as per the Vantani Karar/partition and subsequent mutation No.465 the Plaintiff and First defendant only have Right, title and interest in the properties muted in their name, and plaintiff has given his consent since he will get his share of 37 guntas in remaining cultivated properties. The said sale was completed based on the Vantani Karar/Partition and subsequent mutation No.465, and the said sale deed was registered as document No.SRS-1-04268-2012-13, Book I and stored in CD No.SRSD53 of the sub-registrar office, Sirsi on 15.03.2013. The copy of the sale deed is produced herewith as Annexure-J.” 13. Similarly, we also deem it fit to cull out paragraph No.7 of the written argument filed by the plaintiff, which reads as under : “07. It is submitted that the plaintiff has filed the above suit on 26.08.2023 for proper reliefs in respect of suit schedule properties. After initiation of the above suit, the plaintiff has served the summons from this Hon'ble court in O.S.No.38/2023 i.e, during September 2023. The suit filed by the 2nd & 3rd defendant is against the plaintiff and the 1st defendant and the plaintiffs in O.S.No.38/2023 has limited claim/partial partition over the limited suit schedule properties mentioned in O.S.No.38/2023. The plaintiff in the above suit has filed the suit against all properties which includes properties claimed by the plaintiffs in O.S.No.38/2023. Further the plaintiffs in - 10 - NC: 2025:KHC-D:6213-DB RFA No. 100529 of 2024 O.S.No.38/2023 has not claimed any share in the moveable schedule 'B' properties and in House property and godown building and also undivided suit schedule properties mentioned in the schedule 'C' in the above case.” 14. Upon a close and careful reading of paragraph No.15 of the plaint, it becomes evident that the primary allegation raised by the plaintiff is directed against defendant No.1, Ganapati. The plaintiff has asserted that defendant No.1 has alienated the southern portion of the land measuring 37 guntas situated in Survey No.75. Simultaneously, it is alleged that the northern portion of the same extent, i.e., 37 guntas, continues to remain in the possession of the family. The plaintiff contends that the said alienation was effected pursuant to an oral partition between two brothers, which was later formalized by a corresponding mutation entry bearing No.465. The plaintiff further submits that he gave his consent to the said transaction based on the assurance or belief that he would be allotted the remaining 37 guntas of land. However, a meticulous reading of paragraph No.15 clearly reveals that the filing of the present suit, being the second suit for partition, by the plaintiff who - 11 - NC: 2025:KHC-D:6213-DB RFA No. 100529 of 2024 is admittedly a practicing Advocate is legally misconceived and unwarranted, particularly when the relief now sought could have been appropriately addressed in the previously instituted suit for partition. 15. This Court has, in a catena of judgments, consistently reiterated that in a suit for partition, all parties to the proceedings are treated as plaintiffs. In the instant case, the present plaintiff, who has been arrayed as defendant No.2 in O.S.No.38/2023, seeks to raise a defence to the effect that a suit for partial partition is not maintainable. It is to be noted that such a defence can very well be raised in the written statement in the pending suit. Moreover, he is not precluded from asserting that one of the family properties has been omitted in the initial suit. Subject to payment of the requisite court fee, the plaintiff is fully at liberty to seek appropriate relief with respect to the said omitted property within the framework of the pending partition suit in O.S.No.38/2023. - 12 - NC: 2025:KHC-D:6213-DB RFA No. 100529 of 2024 16. By instituting the present suit, the plaintiff appears to have added an unnecessary layer of complexity to an already pending matter. It is frequently observed in partition litigation that when sisters initiate legal proceedings to claim their rightful share in the family properties, the male members, especially brothers, often resort to strategies that complicate and delay the proceedings, with the objective of obstructing or deferring the realization of the sisters' lawful entitlements. This case appears to follow a similar pattern. Upon close scrutiny of the pleadings and the arguments advanced by the plaintiff in the written submissions, it is evident that the plaintiff has made a weak and unconvincing attempt to introduce unnecessary complications by filing a second suit for partition, despite having a viable remedy available in the already pending suit. Entertaining such a second suit would result in serious prejudice to defendants No.2 and 3 who are the sisters by subjecting them to additional litigation and financial strain, thereby defeating the very purpose of expeditious and effective adjudication in partition matters. - 13 - NC: 2025:KHC-D:6213-DB RFA No. 100529 of 2024 17. The learned Trial Judge, while dealing with the matter, has undertaken a careful and thorough examination of the averments made in the plaint. After due consideration, the learned Judge has rightly addressed the grievance of the plaintiff and has, in paragraph No.12 of the order under challenge as well as in the operative portion, clearly indicated the course of action available to the plaintiff. Specifically, the learned Judge has preserved the liberty of the plaintiff to assert his claim and seek relief with respect to the omitted property in the pending partition suit bearing O.S.No.38/2023. Such a direction not only ensures procedural propriety but also prevents multiplicity of proceedings. 18. In view of the above observations, this Court is of the considered opinion that the learned Trial Judge was fully justified in holding that the present suit for partition in O.S.No.140/2023 is not maintainable. It is a settled principle of law that members of a joint family cannot file multiple independent suits for partition when a comprehensive suit by one of the members is already pending. Encouraging such a - 14 - NC: 2025:KHC-D:6213-DB RFA No. 100529 of 2024 practice would not only prejudice the substantive rights of the parties but would also place an undue burden on the judicial system. Therefore, the dismissal of the present suit by the learned Judge adheres to the settled legal principles governing partition actions and requires no interference. The impugned order is sound, both in law and reasoning, and accordingly stands confirmed. 19. For the following reasons, we answered point formulated in the ‘affirmative’. In the result, we pass the following : ORDER Appeal is dismissed as devoid of merits. All contentions of parties are kept open. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE CKK LIST NO.: 1 SL NO.: 22