LALITAWWA AND ORS. Vs. VEERANAGOUDA AND ORS.

JUDGEMENT

(1.) This is a plaintiffs' Miscellaneous Second Appeal, filed against the judgment and decree dated 20.09.2012 made in RA No. 58/2009 on the file of the Fast Track Court, Ranebennur, allowing the appeal, setting aside the judgment and decree of the trial court and remanded the matter to the trial court for fresh disposal in accordance with law, as early as possible by giving equal opportunity to all the parties, by impleading necessary parties to the suit therein and include all the joint family properties in the suit.

(2.) The appellants/plaintiffs filed the suit O.S. No. 122/2005 for partition and separate possession of their 1/4th share in the suit schedule properties, contending that the father of the defendant Nos. 1 and 2, and husband of defendant No. 3/Nmganagouda Patil and husband of plaintiff No. 1/Rudragouda Patil and defendant No. 4 are the brothers and plaintiff No. 2 is the sister. There was a partition in the family among the plaintiffs and defendants in the year 1990 and in this regard, there was a Tippani dated 13.01.1990 and accordingly, M.E. No. 4327 was certified on 14.03.1990. The said partition was made during the lifetime of the father of defendant Nos. 1 and 2 and husband of defendant No. 3/Nmganagouda Patil. The plaintiffs and defendants are enjoying their respective shares separately. At the time of said partition, the present suit properties were kept in common and accordingly, mutation entry was made in respect of the said properties. Now, the relationship between the plaintiffs and defendants is strained and hence, the plaintiffs demanded their share in the suit properties. The defendants denied the same. Hence, they have filed the present suit.

(3.) The 1st defendant filed the written statement and defendant Nos. 2 and 3 adopted his written statement and denied the entire plaint averments and specifically contended that there was a partition in the year 1990 and Tippani was made on 13.01.1990. Accordingly, ME No. 4327 was certified on 14.03.1990 and partition took place during the lifetime of Ninganagouda but, they denied that the suit properties were kept in common. The present suit is bad for non -joinder of necessary parties, as the plaintiffs have not included all the joint family members in the present suit. The propositus/Veeranagouda is having eight children -four sons and four daughters. After the death of Veeranagouda, all the family members could not continue jointly. The have made Apsat hissa in their family properties. But, there is no legal partition between the plaintiffs and defendants. The 1st son of Veeranagouda i.e., Shidlingappagouda is no more, who is having wife by name Champakka, who is alive and residing at Kadaramandalagi and she is not included in the present suit. Champakka is having daughters by name Channavva who died at Dholivali village, Harihar Taluk. She was having children by name Basavaraja, Halanagouda, Sureshgouda and Ashokagouda. The said persons were not included in the present suit. Rudragouda is also no more. Plaintiff No. 1 is the son of Rudragouda. Ninganagouda is having the legal representatives i.e., defendant Nos. 1 to 3. Defendant No. 4 is the legal representative of Naganagouda. He was also having daughter by name Kamalavva and she is also not included in the present suit. Plaintiff No. 2 is the daughter of Mahananda. Parvathavva is also the daughter, who is also no more and he is having children by name G.K. Rudresh, G.K. Shankarappa, G.K. Vageeshappa, G.K. Sureshappa and G.K. Nagaraja. The said persons were also not included in the present suit. Hence, the suit of plaintiffs is bad for non -joinder of necessary parties. Therefore, the defendants pray for dismissal of the suit.