- 1 - NC: 2025:KHC-D:10 MSA No. 100146 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 6TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS SECOND APPEAL NO.100146 OF 2024 (RO) BETWEEN: KUBERAPPA S/O. RAMCHANDRAPPA RATHOD, AGE. 58 YEARS, OCC. AGRICULTURE, R/O. NAGAVI THANDA, TQ. AND DIST. GADAG-582101. …APPELLANT (BY SRI RAGHAVENDRA A.PUROHIT, ADVOCATE) AND: 1. PANDAPPA S/O. SOMALAPPA CHAVAN, AGE. 40 YEARS, OCC. COOLIE, R/O. NARASAKOPPA THANDA, TQ. AND DIST. GADAG-582101. 2. SMT. SAVAKKA W/O. JEELAPPA LAMANI @ PAWAR, SINCE DECEASED BY HER LR’S SOMAPPA S/O. JEEVALAPPA PAWAR @ LAMANI, AGE. 53 YEARS, OCC. COOLIE, R/O. NAGAVI THANADA, TQ. AND DIST. GADAG-582101. 3. SHEKRAPPA S/O. JEEVALAPPA PAWAR @ LAMANI, AGE. 50 YEARS, OCC. COOLIE, R/O. NAGAVI THANADA, TQ. AND DIST. GADAG-582101. 4. LAXMAN S/O. JEEVALAPPA PAWAR @ LAMANI, AGE. 48 YEARS, OCC. COOLIE, R/O. NAGAVI THANADA, TQ. AND DIST. GADAG-582101. 5. SHIVAPPA S/O. JEEVALAPPA PAWAR @ LAMANI, AGE. 46 YEARS, OCC. COOLIE, R/O. NAGAVI THANADA, TQ. AND DIST. GADAG-582101. 6. HANAMANTH S/O. JEEVALAPPA PAWAR @ LAMANI, AGE. 44 YEARS, OCC. COOLIE, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:10 MSA No. 100146 of 2024 R/O. NAGAVI THANADA, TQ. AND DIST. GADAG-582101. 7. MANJUNATH S/O. JEEVALAPPA PAWAR @ LAMANI, AGE. 42 YEARS, OCC. COOLIE, R/O. NAGAVI THANADA, TQ. AND DIST. GADAG-582101. 8. RAMAVVA W/O. RAGHU RATHOD, AGE. 40 YEARS, OCC. HOUSE HOLD, R/O. NAGAVI THANADA, TQ. AND DIST. GADAG-582101. 9. SMT. DEVAKKA W/O. DHARMAPPA LAMANI @ KARABHARI, AGE. 62 YEARS, OCC. HOUSE HOLD, R/O. KALASAPUR THANDA, TQ. AND DIST. GADAG-582101. 10. SMT. DRUPATI W/O. JAMBAPPA LAMANI, AGE. 60 YEARS, OCC. HOUSE HOLD, R/O. NAGAVI THANDA, TQ. AND DIST. GADAG-582101. 11. SMT. KAMALAVVA W/O. HAMAPPA LAMANI, AGE. 53 YEARS, OCC. HOUSE HOLD, R/O. ADAVISOMAPUR, TQ. AND DIST. GADAG-582101. 12. SMT. CHANDRAWWA W/O. TIPPANNA LAMANI, AGE. 50 YEARS, OCC. HOUSE HOLD, R/O. NAGAVI THANDA, TQ. AND DIST. GADAG-582101. 13. TULAJAPPA S/O. PEERAPPA LAMANI, AGE. 43 YEARS, OCC. COOLIE, R/O. NAGAVI THANDA, TQ. AND DIST. GADAG-582101. 14. PANDAPPA S/O. PEERAPPA LAMANI, AGE. 40 YEARS, OCC. AGRICULTURE, R/O. NAGAVI THANDA, TQ. AND DIST. GADAG-582101. …RESPONDENTS THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER SECTION 43 RULE 1 (U) OF CPC., A) SET ASIDE THE JUDGMENT AND ORDER DATED 06.11.2024 PASSED BY PRINCIPAL SENIOR CIVIL JUDGE AND CJM, GADAG, IN R.A. NO.75/2020 IN RESERVING THE - 3 - NC: 2025:KHC-D:10 MSA No. 100146 of 2024 JUDGMENT AND DECREE PASSED BY THE PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, GADAG, IN O.S. NO.304/2016, DATED 30.08.2018 AND ETC., THIS MISCELLANEOUS SECOND APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) The present appeal is filed by defendant No.3 in O.S.No.304/2016, challenging the order passed in R.A No.75/2020 dated 06.11.2024 by the Court of Principal Senior Civil Judge and CJM, Gadag (hereinafter referred to as the ‘First Appellate Court’), thereby setting aside the order passed in O.S No.304/2016 dated 30.08.2018 by the Court of Principal Civil Judge and JMFC, Gadag (hereinafter referred to as the ‘Trial Court’) and remanding the matter to the Trial Court. 2. For the purpose of convenience, ranking of the parties is referred to as per their status before the trial Court. 3. The plaintiff filed suit for the relief of partition and separate possession of suit schedule properties by claiming 1/7th share in the suit schedule properties. It is - 4 - NC: 2025:KHC-D:10 MSA No. 100146 of 2024 pleaded that the suit properties are ancestral and joint family properties of the plaintiff and defendants. The Trial Court has passed an order on I.A No.4 filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) and the said suit was dismissed by the Trial Court. It is submitted that the defendant filed an application under Order VII Rule 11(a) of the CPC, but in the impugned order, the correct provision invoking Order VII is not stated. Moreover, the trial Court has simply stated Order VII Rule 11 without mentioning clauses of Rule 11 of the CPC. 4. The learned counsel appearing for the appellant/defendant No.3 submitted that there was already partition in the family with regard to suit properties and therefore there is no cause of action to file the suit. Further, it is submitted that the suit properties were tenanted land and have got occupancy rights and as per Section 2(12) of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as the ‘Act’), the plaintiffs being married daughters are not entitled to share in the suit schedule properties. Therefore submitted that there is no cause of action to file - 5 - NC: 2025:KHC-D:10 MSA No. 100146 of 2024 the suit and it is correctly considered by the Trial Court, thus dismissed the suit, which is wrongly reversed by the First Appellate Court. Therefore, learned counsel for the appellant prays this Court to set aside the order passed by the First Appellate Court by confirming the order passed by the Trial Court. 5. Whether the plaintiffs being married daughters are entitled for partition in the suit properties or not entitled does not mean that the suit does not have cause of action. Further, as per contention taken by the defendant that there was already partition, then it is a matter of fact which is to be proved by the defendants and the pleading of previous partition in the family does not amount that the suit is not having cause of action. Therefore, the Trial Court has committed an error in dismissing the suit by rejecting the plaint. 6. The Trial Court by mentioning only Order VII Rule 11 of the CPC, thus the plaint is rejected without mentioning the clause of Rule 11 of the CPC. The Trial Court ought to have mentioned under which clause of Rule 11 the - 6 - NC: 2025:KHC-D:10 MSA No. 100146 of 2024 application is filed and passed the order. The same error is perpetuated in the order passed by the First Appellate Court. 7. Therefore, just because there was partition as per pleading of the defendant, it is a matter of fact to be tried before the trial Court, hence, it does not mean that there is no cause of action to prefer suit. Therefore, rejection of plaint under Order VII Rule 11 of the CPC is not correct. 8. Further, whether married daughters are entitled for share in the suit schedule properties does not amount to there is no action in preferring the suit. Therefore, the Trial Court has committed an error in rejecting the plaint and dismissing the suit, which is correctly reversed by the First Appellate Court by remanding the suit to the Trial Court for fresh consideration. 9. In view of the said observations, the appeal stands dismissed as being devoid of merit. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE PMP List No.: 2 Sl No.: 28