IN THE HIGH COURT OF KARNATAKA AT B ANGALORE

DATED THIS THE 29TH DAY OF MAY 2012

BEFORE

THE HON'BLE MR. JUSTICE ANAND BYRAREDDY

REGULAR FIRST APPEAL No.5 10 OF 2003

BETWEEN:

• 1. S. Krishnappa, Aged about 65 years, Residing at No.401, I Cross Road, VI Main Road, H.A.L. II Stage, Bangalore — 560 022.
• 2. S. Byraiah alias Byranna. Aged 63 years, Residing at No.112/3, 6 "A" Cross, Triveni Road, Yeshwanthapur, Bangalore — 560 022.
• 3. S. Ramaswamappa, Since deceased by His legal representatives,

• a) Munithayamma, Wife of Late Rarnaswarnappa, Aged about 47 years,

• b) Smt. Uma. Wife of Byrappa, Aged 37 years, Nage ndnahalli, Himdhallai Post, Bangalore — 560 066.

• c) Manja. Son of Late Ramaswamappa. Aged about 28 years,

• d) Smt. Munilakshmi, Wife of Raju, Aged about 26 years,

• e) Smt. Kavitha, Wife of Govinda, Aged about 23 years,

• Smt. Yashodha, Wife of Ashoka, Aged 20 years, Residing at Erignahalli, Bijjawara Post, Devanahalli Taluk, Bangalore Rural District.

• g) Santhosh, minor, Son of Late Ramaswamappa, Aged about 20 years,

• h) Shyla, major, Daughter of Late Ramaswamappa, Aged about 15 years, Appellants (g) and (h) are minors,

Represented by natural guardian, Mother Munithayamma,

Appellants No.3(a) (c) (d) (e) (g) and (h) are residing at Vajrahalli, also known as Byanapalya, Talagattapura Post Kanakapura Road, Bangalore -560 062.

4. S. Rajappa, Aged about 56 years,

5. S. Nagappa, Aged about ⁵¹ years,

Appellants No.4 and 5 are Residing at Vajarabally also Known as Byanapalya, Talagattapura Post, Kanakapura Road, Bangalore -560062. ...APPELLANTS

(By ShrL G.Balakrishna Shastry, Advocate)

AND:

1. 5. Narasimhappa, Son of Late Sri. Sonnappa, Aged about 73 years,

Since deceased by his legal representatives

• a) Smt. Vajrarnma. Wife of Late Narasimhappa. Major, Resident of Vajarahalli Also known as Byanapalya, Talagattapura Post, Kanakapura Road, Bangalore — 560 062.

• b) Akkalappa, Son of Late Narasimhappa, Major,

• c) Muniraj, Son of Late Narasimhappa, Major, Respondents No.1 (a) to (c) are Resident of Vajarahalli Also known as Byanapalya, Talagattapura Post, Kanakapura Road, Bangalore — 560 062.

• d) Smt. Kamalamma, Daughter of Late Narasimhappa, Wife of Muniyappa, Major, Residing at Marenahally, Bangalore.

• e) Sri. Narayanaswamy, Son of Late Narasirnhapa, Major,

• f Sri. Puttaraju. Son of Late Narasimhappa, Maj or,

• g) Sri. Chandramma. Daughter of Late narasimhappa, maj or

• h) Sri. Lokesh, Son of Late Narasimhappa, Major,

• i) Sri. Kempanna, Son of Late Narasimhappa, Maj or, Respondents No.1(e) to (i) are Resident of Vajarahalli, Kanakapura Road, Bangalore — 560 062.

[amended vide order dated 9.1.2009]

2. Smt. Jayamma, Wife of Sri. Marappa, Aged about 67 years, Resident of Gubbaiala, Subramanyapura Post, Uttarahalli Hobli, Bangalore —560061.

[amended vide order dated 31.1.20111

RESPONDENTS

(By Shri. C.G.Gopala Swamy, Advocate for Respondent No.2 Shri. N. Krishnananda Gupta, Advocate for Respondents No.1(a to i) $\rightarrow$

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This Regular First Appeal is filed under Section 96 of Code of Civil Procedure, 1908, against the judgment and decree dated 29.3.2003 passed in O.S.No.7706/2000 on the file of the XXII Additional City Civil Judge, Bangalore, (CCH-7), decreeing the suit for partition and separate possession.

This Appeal coming on for Hearing, this day, the court delivered the following:

JUDGMENT

Heard the learned counsel for the appellants and the learned counsel for the respondents.

The appellants were the defendants before the trial $2.$ court in a suit for partition. The suit having been decreed, the appellants are before this court being aggrieved by the finding of the trial court as to the negation of a prior partition set up The added circumstance is that respondent no.2 by them. herein had been impleaded on the footing that she was a necessary party to the suit and the suit had been decreed without her presence. It further transpires that the second

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respondent has, in turn, instituted ^a fresh suit for partition in O.S.No.6712/2010 before the court of the Additional City Civil Judge, Bangalore. which is pending adjudication.

3. In the light of the admitted circumstance that the second respondent was not made ^a party to the suit in O.S.No.770612000 and the ^plaintiff therein being the applicant at whose instance, respondent no.2 has been impleaded, it is appropriate that the fresh suit now filed he adjudicated. In order to avoid inconsistent findings that may arise, it would be necessary, as ^a matter of form, to set aside the judgment, which is the subject matter of the present appeal and remit the matter for consideration along with the present suit filed by the ^plaintiff, from the stage of enabling the ^plaintiff in the present pending suit to file written statement in the suit in O.S.No.770612000, and thereafter, if necessary, to frame such additional issues, as may he necessary and to permit the parties to tender evidence without having to duplicate the evidence

that is already on record, in which regard, the trial court shall be the best judge and accordingly supervise the further proceedings.

4. Without entering upon the merits of the claim of either side, the matter is remanded to the trial court, as already stated, and the judgment, which is impugned in the present appeal, is set aside and the suit in O.S.No.770612000 shall be tried in terms as above, along with the present pending suit in O.S.No.67 12/2010.

5. The learned Counsel for respondent nos.1(a) to (i) seeks extension of the interim order restraining the defendant appellants from alienating the suit property. Since this was an extension of the order passed by the trial court, it is appropriate that the said respondents renew their applications before the trial court and the trial court shall consider the same. The office is directed to remit the papers to the trial court before 5.6.2012.

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The parties shall appear before the trial court without further notice.

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