IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2025 PRESENT THE HON'BLE MRS. JUSTICE ANU SIVARAMAN AND THE HON'BLE DR. JUSTICE K.MANMADHA RAO REGULAR FIRST APPEAL NO.1979 OF 2021 (PAR) BETWEEN: 1 . 1(a). N. GOPAL N CHUGH S/O NICHALDAS SINCE DEAD, BY HIS LRS., NEETA GOPAL CHUGH W/O LATE GOPAL N CHUGH AGED ABOUT 64 YEARS R/AT. FLAT No.1901 AND 1902 EMBASSY HABITAT NEAR MOUNT CARMEL COLLEGE VASANTHNAGAR BENGALURU-560 052 1(b). SANJAY GOPAL CHUGH S/O LATE GOPAL N CHUGH AGED ABOUT 46 YEARS R/AT. FLAT No.1901 AND 1902 EMBASSY HABITAT NEAR MOUNT CARMEL COLLEGE VASANTHNAGAR BENGALURU-560 052 1(c). AMIT GOPAL CHUGH S/O LATE GOPAL N CHUGH AGED ABOUT 41 YEARS R/AT. FLAT No.1901 AND 1902 EMBASSY HABITAT NEAR MOUNT CARMEL COLLEGE - 2 VASANTHNAGAR BENGALURU 560 052 ALL ARE PRESENTLY R/AT SAVITHRI NIVAS 106, RAILWAY PARALLEL ROAD KUMARA PARK WEST BENGALURU-560 020 ...APPELLANTS (BY SRI. MANIAN K.B.S., ADVOCATE) AND: 1 . 1(a). VANDANA G THAKUR ALIAS N. SHOBHA W/O GOPAL DAS D THAKUR SINCE DEAD BY HER LRS., VINITHA MOHAN KUMAR W/O MOHAN KUMAR AGED ABOUT 46 YEARS R/AT.111/8, RAGHURAM COLONY GANDHI ROAD SALEM-636 007 1(b). SHEETAL G THAKUR W/O VIJAY ARJUN DAS AGED ABOUT 41 YEARS FLAT No.107, SV ARCADE APARTMENT KODICHIKANNAHALLI, MN ROAD NEAR SBI OFFICERS PRIME RESIDENCY SEENAPPA LAYOUT, BOMMANAHALLI BENGALURU-560 068 1(c). PREETAL G THAKUR W/O PRASHANT NAGPAL AGED ABOUT 31 YEARS R/A DOOR No.600, 11TH CROSS 4TH MAIN, 3RD STAGE GOKULAM, MYSURU-570 002 2 . KAMLESH S/O PRAKASH N. No.34B, 8TH BLOCK - 3 KORAMANGALA VILLAGE BENGALURU-560 037 3 . MURALI N CHUGH ALIAS GULLU ALIAS GULAM MOHAMMED S/O LATE NICHALDAS No.25/26, NEW BAGALUR LAYOUT 3RD MAIN, LINGARAJAPURAM BENGALURU-560 005 4 . RAJKUMARI ALIAS SANGEETHA W/O RAMESH LAL CHABRIA C/O TAKCHAND AND CO. ITARI BAZAR NAGPUR-440 002 …RESPONDENTS (BY SRI. S. VENKATESHWARA BABU, ADVOCATE FOR SRI. A. SHIVARAMA, ADVOCATE FOR R1(a) TO R1(c); SRI. ARUN GOVINDRAJ, ADVOCATE FOR R2 & R4; NOTICE TO R3 IS HELD SUFFICIENT V/O DATED 13.06.2023) THIS RFA IS FILED UNDER ORDER 41 RULE 1 OF CPC, 1908, AGAINST THE ORDER DATED 23.08.2021 PASSED IN FDP.No.141/2010 ON THE FILE OF 6TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, ALLOWING THE PETITION FILED UNDER ORDER XX RULE 18 R/W SEC. 151 OF CPC AND ETC. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 16.07.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN J., PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE DR. JUSTICE K.MANMADHA RAO - 4 CAV JUDGMENT (PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN) This appeal is filed challenging the order dated 23.08.2021 passed by the VI Additional City Civil and Sessions Judge in FDP No.141/2010. 2. We have heard Shri. Manian K.B.S, learned counsel appearing for the appellants, Shri. S. Venkateshwara Babu, learned counsel as instructed by Shri. A Shivarama, learned counsel appearing for respondents No.1(a) to 1(c) and Shri. Arun Govindraj, learned counsel appearing for respondents No.2 and 4. 3. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. 4. Nichaldas Motoomal, father of defendant No.1 was a partner in M/s Nichaldas Gopaldas and Company ('firm' for short). He purchased Schedule A, C and D properties in his wife Savithri Devi's name using partnership income. After his death, his son Prakash Nichaldas became a partner and Prakash died leaving behind his pregnant wife - 5 and minor son, the plaintiff. Defendant No.2 converted to Islam and was disqualified from claiming any shares. Prakash's wife and the plaintiff filed O.S.No.117/1984, claiming the business was a Joint Hindu Family Business and sought Prakash's share in the firm. The suit was compromised wherein the plaintiff relinquished all claims over the suit schedule properties in exchange of monetary compensation as full and final settlement. 5. Respondent No.2 filed O.S.No.8516/1999 before the XXXVIII Additional City Civil Judge, Bengaluru ('trial Court' for short) seeking partition and separate possession of 1/4th share in the suit schedule A, B, C, E, F and G properties and 1/2 share in suit schedule D property, to declare the comprise decree as null and void and to direct defendant No.1 to render accounts of the partnership firm and pay mesne profit for the suit schedule properties. 6. The suit was partly decreed, holding that the plaintiffs, defendants No.3 and 4 are entitled to partition and separate possession of their 1/4th share in the suit schedule - 6 properties and Savithri Bai's 1/4th share in the assets and business of the firm. The plaintiff was also held entitled to mesne profits from date of suit till date of possession of their 1/4th share. Defendant No.1 was directed to render accounts of the firm for the period from the date of filing the suit till drawing up of final decree. 7. Aggrieved by the judgment passed by the trial Court, defendants No.1, 2 and 5 filed RFA No.1374/2009. The plaintiff also filed cross objections challenging the trial Court's decision denying them a share in Schedule D and G properties. The Division Bench of this Court upheld the trial Court's judgment observing that the trial Court had correctly appreciated the oral and documentary evidence on record and arrived at proper findings on all issues. The appeal and cross objections were dismissed finding no grounds for interference with the decision of the trial Court. 8. Defendant No.3 and the plaintiff filed FDP No.141/2010 seeking division of suit schedule properties A to C, E and F by metes and bounds. A Civil Engineer was - 7 appointed as Court Commissioner to inspect and submit a report. The feasibility of divisions as suggested by the Commissioner was not accepted by the parties. The Court allowed the petition observing that division of properties was not feasible as the parties did not mutually agree and held that the parties can sell the same in public auction and apportion the sale proceeds between them as per their respective share as declared in the decree. 9. Defendant No.1 prefers this appeal seeking to declare the decree dated 12.06.2009 passed by the trial Court as null and void and set aside the judgment of the trial Court and Division Bench of this Court and also the final decree proceedings. 10. The learned counsel appearing for the appellant contended that O.S.No.8516/1999 is barred under Order XXIII Rule 3A of Code of Civil Procedure, 1908 as an earlier compromise decree dated 02.07.1984 had attained finality. The trial Court committed a jurisdictional error by passing a preliminary decree in O.S.No.8516/1999, ignoring the - 8 binding nature of the prior decree. The plaintiff had averred that these properties were assets of the firm wherein respondent No.2's father Late Prakash and defendant No.1's father Gopaldas were equal partners holding 50% shares each. 11. However, the trial Court passed the judgment on the erroneous assumption that Savithri Devi was one of the four partners holding a 1/4th share and without impleading the firm's partners as necessary parties to the suit. The said suit is filed after 15 years by the same plaintiff. As per Section 14 of the Partnership Act, the properties are the firm's properties and that the trial Court could not have adopted two different basis for sharing the business income and the assets of the firm. The trial Court committed an error in treating the properties as the absolute properties of Savithri Devi. 12. In support of his contentions, he has relied on the following citations:- • R Rajanna v. S.R Venkataswamy & Others reported in (2014) 15 SCC 47; - 9 • R. Janakiammal v. S.K. Kumarasamy (Deceased) through LRs and Others reported in (2021) 9 SCC 114, and • State of Haryana and Another v. Kartar Singh (Dead) through LRs reported in (2013) 11 SCC 375. 13. The learned counsel appearing for respondents No.2 and 4 on the other hand contended that the final decree proceedings was held in accordance with law and do not warrant interference of this Court. The preliminary decree was upheld and confirmed by the Division Bench of this Court, which cannot be revisited in this appeal. 14. In support of his contentions, he has relied on the following citation:- • Venkata Reddy and Others v. Pethi Reddy reported in 1962 SCC OnLine SC 320. 15. Having considered the contentions advanced, the only question which requires a consideration is whether the orders of the Court which is subjected to this appeal requires any interference. The order under challenge is the final decree in FDP No.141/2010. The FDP was filed in - 10 respect of the preliminary decree in O.S.No.8516/1999. The appellant was defendant No.1 in the suit. The suit was decreed on 12.06.2009 and a preliminary decree was passed holding that the plaintiffs are entitled to 1/4th share in suit A to C, E and F schedule properties. The said preliminary decree was subjected to an appeal by defendants No.1, 2 and 5 in RFA No.1374/2009. A cross objections was also filed by the plaintiffs. The appeal as well as the cross objections were dismissed by the Division Bench of this Court by its judgment dated 21.01.2015. It is thereafter, that the FDP was filed by the plaintiffs in the Original Suit. 16. The FDP Court considered the Commissioner's report as well as the contentions of the parties and found that 1/4th share of the properties would come to about 13002 sq.ft. each. The parties did not accept the divisions suggested by the Commissioner. Therefore, the Court held that the division of the properties by metes and bounds is not possible. The parties were permitted to auction the properties and apportion the sale proceeds. The preferential - 11 right of the parties to the suit in the auction was also recognized. 17. The appellant challenges the said order on the ground that the preliminary decree was wrongly passed and the partition suit itself was not maintainable. We are of the opinion that the preliminary decree was not open to challenge by the appellants in these proceedings which arise out of passing of the final decree. The contentions raised by the appellants as against the preliminary decree which has already been subjected to an appeal and has been affirmed are completely misconceived and cannot be countenanced. 18. From a consideration of the appeal memorandum as also from the arguments raised by the appellants before this Court, we notice that there are no contentions urged in the appeal as against the final decree and the arguments are raised as against the preliminary decree and as regards the maintainability of the partition suit. 19. We are of the opinion that such contentions cannot be urged in this appeal. Since no valid grounds have been raised as against the final decree, we are of the - 12 opinion that the appeal is devoid of merits. The appeal fails and the same is accordingly dismissed with costs. All pending interlocutory applications shall stand dismissed. Sd/- (ANU SIVARAMAN) JUDGE Sd/- (DR. K.MANMADHA RAO) JUDGE cp*