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IN THE HIGH COURT OF DHARWAD BENCH

ON THE 13 TH DAY OF APRIL 2018

BEFORE

THE HON’BLE MR. JUSTICE K.N. PHANEENDRA

C.R.P. NO.100003 OF 2018

BETWEEN :

1. MANJAMMA W/O. MANJUNATH NAIK AGE:52 YEARS, R/O. PADMAYYANA MANE -I VILLAGE-581350 TQ: DIST:UTTARA

2. ISHWAR S/O MANJUNATH NAIK AGE:30 YEARS, R/O. PADMAYYANA MANE MURDESHWAR MAVALLI-I VILLAGE-581350 TQ:BHATKAL DIST:

3. NAGESH S/O MANJUNATH NAIK AGE:28 YEARS, R/O. PADMAYYANA MANE MURDESHWAR MAVALLI-I VILLAGE-581350 TQ:BHATKAL DIST:UTTARA KANNADA

4. SMT LAXMI KOM GANAPATI NAIK AGE:34 YEARS, R/O.KEREGADDE MANE, MOODASHIRALI VILLAGE TQ:BHATKAL-581320 DIST:UTTARA KANNADA

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5. SMT VASANTI KOM MANJUNATH NAIK AGE:32 YEARS, R/O:KENDERIMANE KELGINA VATHARA MADIKERI, BAILURU VILLAGE-581320 TQ:BHATKAL DIST:UTTARA KANNADA ... PETITIONERS

(BY SRI J S SHETTY, ADVOCATE)

AND :

1. JATTAMMA KOM SUBRAY NAIK AGE:ABOUT 57 YEARS, R/O NAREKULI MURDESHWAR-581350 TQ:BHATKAL, DIST:UTTARA KANNADA

2. DURGAMMA KOM MANJUNATH NAIK AGE ABOUT 55 YEARS, R/O. DURGUMANE PO:KATAGAR KOPPA-581320 TQ:BHATKAL, DIST:UTTARA KANNADA.

3. B.A.R.D.C. BANK, CHIEF MANAGER MAIN BRANCH, BHATKAL, TQ. BHATKAL, DIST. UTTARA KANNADA. ... RESPONDENTS

(R1 TO R3 ARE SERVED)

THIS PETITION IS FILED UNDER SECTION 115 OF C.P.C. PRAYING TO SET ASIDE THE ORDER DATED 31.08.2017 ON PRELIMINARY ISSUE NO.4, IN O.S. NO.13/2017 PASSED BY THE SENIOR CIVIL JUDGE & J.M.F.C., BHATKAL, THE COPY OF WHICH HAS BEEN PRODUCED HEREWITH AND MARKED AS ANNEXURE-A.

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THIS PETITION IS COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Heard the learned counsel for the petitioner. The respondents No.1 to 3 though served they remained absent and unrepresented.

2. I have carefully perused the records. A lady by name Jattamma and Durgamma who are respondents No.1 and 2 herein, have filed a suit against the petitioners, in

O.S. No.13/2017 for partition and separate possession of a single suit schedule property i.e., land bearing Sy.

No.661A/17 measuring 3 acres situated at Mavalli-I village. In the said suit, the defendants have taken up the contention that the suit is barred under Order II Rule 2 of

C.P.C. because the plaintiffs had earlier filed a suit for partition and separate possession in O.S. No.20/1995 if at all this property was also a joint family and ancestral property they would have incorporated this property also

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for partition and separate possession. As the said property

was left out from partition in the year 1995 second suit is

not maintainable under Order II Rule 2 of C.P.C. The said

contention of the defendants have been taken care of by

the trial Court and while framing the issues it framed an

issue i.e., issue No.4 with reference to the above said

defence taken up by the defendant. Issue No.4 is framed

in the following manner, “Whether the defendant No.6

proves that suit is hit by Order II Rule 2 of C.P.C. as

averred in paragraph 12 of written statement?”

3. The trial Court has treated the said issue as a preliminary issue and after hearing both the parties has held the said issue in the negative holding that the suit filed by the plaintiff in O.S. No.13/2017 is not hit by Order

II Rule 2 of C.P.C. The said order is called in question before this Court.

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4. The factual aspects of the case as rightly put it by the learned counsel is that there is no dispute that the plaintiffs Jattamma and Durgamma (respondents No.1 and

2 herein) have filed suit in O.S. No.20/1995. The said suit was for declaration of plaintiffs entitlement for 1/3 rd share

in all the suit schedule properties and also for equitable

partition in the said properties by metes and bounds and

for such other reliefs. In the said suit admittedly the

present property which is involved in O.S. No.13/2017 has

not been incorporated. The plaintiffs in O.S. No.13/2017

in fact has contended that, the plaintiffs and one late

Manjunath are the children of Krishna Thimmappa Naik

and suit schedule property bearing Sy. No.661 measuring

3 acres was granted to late Manjunath S/o. Krishna by the

Deputy Commissioner, , as a Manager of the joint

family and the suit property was self-acquired property of

their father. As such they were entitled for 1/3 rd share in

the suit schedule property. Therefore, it is clearly averred

in the plaint that the suit schedule property is also a joint

: 6 : family property, but admittedly, it was left out in the earlier suit. The plaintiffs argued on issue No.4, stating that the earlier suit was filed thinking that, the said property was a self-acquired property of late Manjunath as such the said suit property was not included in the earlier suit. Therefore, on that ground the plaintiffs have filed a fresh suit for partition and separate possession of the said property subsequently after coming to know that, the said property is also a joint family property. They have given their own explanation stating that, Sy. No.661 was standing earlier in the name of the Government upto 1994 and the name of Manjunath was entered during the year

1995-1996 as per MR. No.A4542 and as such the said property was mutated in the name of Sri Manjunath and earlier it was in the name of the Government. The original suit was filed by the plaintiffs who have felt that, the said property was not available for partition, and therefore, the same was not incorporated in the earlier suit.

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5. Per contra, the defendants have stated that, whether it is a joint family property or a self-acquired property, it should be decided by the Court at the time of the disposal of the case on merits after providing opportunity to both the parties. If at all the defendants are able to show to the Court that it was a joint family property and it was well within the knowledge of the plaintiffs when they filed suit in O.S. No.20/1995 then only the Court can ascertain whether bar under Order II Rule 2 of C.P.C. is applicable and whether the plaintiffs are entitled for partition of suit property. Instead of providing opportunity of leading evidence, the Court has decided it as a preliminary issue which is not proper.

6. It is seen from the orders passed by the trial

Court that, the Court itself has stated at paragraph 12 at page 8 that, the specific contention of the plaintiffs that, the suit property was a self-acquired property of late

Manjunath and under that impression the same was not

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included in the earlier suit. That contention was

considered by the Court and opined that, it is too

premature stage to decide whether the suit schedule

property was self-acquired property of late Manjunath or

the joint family property. That can only be decided after

fullfledged trial. Inspite of the trial Court coming to that

conclusion, decided the said issue as a preliminary issue.

It should not have decided the said legal point i.e.,

whether Order II Rule 2 of C.P.C. bars the second suit by

treating the said issue as a preliminary issue.

7. The Court also held that the cause of action which arose for the purpose of filing of the suit in O.S.

No.20/1995 and O.S. No.13/2017 are altogether different.

Here I would like to say that the cause of action is nothing but connection between bundle of facts pleaded and proved by the parties which has to be considered by the

Court on considering various aspects of the case including the evidence. Therefore, issue cause of action in any case

: 9 : cannot be treated as a preliminary issue, but it should be decided as one of the issues while answering other issues framed by the Court. In the event of defendant who has taken up the said contention is able to show to the Court by means of giving cogent and convincing evidence to the

Court that this property was also very much available for partition at the time of filing of the suit in O.S. No.20/1995 and that, the said factum of availability of the property for partition was very well within the knowledge of the plaintiff and inspite of that they have left out that property then the Court has to appreciate such evidence adduced by the defendant and the plaintiff in order to answer such issue.

Therefore, in my opinion, the trial Court has decided the said issue in a premature manner without providing opportunity to both the parties to lead evidence on the said point.

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8. The provision under Order II Rule 2 of C.P.C. also in my opinion to be taken note of which reads as follows :

“Suit to include the whole claim – (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim - Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs – A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation – For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”

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9. Order II Rule 2 of C.P.C. sub-clause (1) says that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Therefore, here the court has to give a finding with regard to the existence of cause of action in the earlier suit and the subsequent suit and whether the plaintiff is entitled to file separate suit in respect of the property which has not been claimed by the plaintiffs though there was any opportunity for the plaintiff to claim share in that property also. Therefore, even on reading of the above said provision, the cause of action for the purpose of both the suits have to be taken into consideration by the Court and it can only be done on the basis of fullfledged trial.

Therefore, I am of the opinion that the trial Court is not right in treating the said issue No.4 as a preliminary issue and decide the same. Under the above said circumstances, the order passed by the Senior Civil Judge and J.M.F.C., Bhatkal, dated 31.08.2017 is liable to be set aside. It is made clear that the said issue also should be

: 12 : tried along with the other issues and finding has to be given while giving finding on other issues while disposing of the suit on merits. With these observations, the following order is passed :

ORDER

i. The petition is allowed.

ii. Consequently, the order dated 31.08.2017

in O.S. No.13/2017 on preliminary issue

No.4 is hereby set aside.

iii. The trial Court has to consider the said

issue after providing opportunity to both the

parties to lead evidence on all the issues

framed and the said issue also shall be

decided along with the other issues.

Whatever the observation made by the trial

Court and this Court with reference to any

cause of action and entitlement of the

plaintiff to file suit subsequently, all those

facts which are discussed in any manner

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shall not be taken into consideration at the

time of deciding the suit on merits. It

should be purely based on the pleadings

and evidence that may be adduced by the

parties to the suit.

SD/- JUDGE

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