SHIVABASAPPA Vs. SHIVAMMA

JUDGEMENT

(1.) Heard the appellant's counsel and also the counsel appearing for the respondents.

(2.) This appeal is filed challenging the order passed in RA No.44/2018 wherein, the appellate Court has set aside the order passed by the trial Court dtd. 20/11/2018 allowing the application filed under Order 7 Rule 11 and directed the parties to appear before the trial Court and issue summons to the defendant Nos.6 to 8 and trial Court also directed to dispose of the case as early as possible.

(3.) The main contention of the counsel appearing for the appellant before this Court that the trial Court has committed an error in setting aside the order passed by the first appellate Court and when the respondents have admitted the partition dtd. 30/10/2000 and also in the plaint specifically pleaded that schedule 3 properties are allotted in favour of the respondent herein, question of filing one more suit does not arise and also the trial Court fails to take note of the fact that in item No.4 also sought for relief of partition in respect of 4B of the suit schedule properties without seeking for partition in respect of all the joint family properties which are in part of the suit schedule. The counsel also vehemently contend that the plaintiffs are not seeking for re-partition on the ground that partition dtd. 30/10/2000 is not an equitable partition are bad in law or for such other reason. Admitting the partition dtd. 30/10/2000, the only case of the plaintiff is that she is not in possession of the properties which were allotted to her husband share and she is also making the claim in respect of the properties purchased by defendant No.3 subsequent to the said partition and this fact also not been considered by the appellate Court and appellate Court committed an error in even allowing the amendment of plaint neither remanded the matter on a preliminary point as contemplated under Order 41 Rule 23, whereas considered the appeal on merits and thereafter reversed the finding of the trial Court coming to the conclusion that it warrants the remand of the matter as required under Order 41 Rule 23-A of CPC that too after recording of the evidence of plaintiffs, the appellate Court ought not to have remitted the matter on a preliminary point holding rejection of plaint is bad in law. The very approach of the appellant Court is erroneous.