SAROJA KRISHNAMURTHY AND ORS. Vs. SHANTHAMMA AND ORS.

JUDGEMENT

(1.) THIS Miscellaneous Second Appeal is filed challenging the judgment dated 03.07.2015 passed by the learned Principal District Judge, Kolar, in R.A. No. 92/2011 thereby setting aside the judgment and decree passed by the Trial Court in O.S. No. 237/2009 and remanding the matter for fresh consideration to the Trial Court with a direction to the Trial Court to take up O.S. No. 237/2009 in respect of item No. 12 only of 'A' schedule property and to consider the same only with regard to the said property along with pending suit in O.S. No. 284/2005 and to pass a judgment afresh with regard to the claim made by the plaintiffs in O.S. No. 237/2009 filed seeking partition and separate possession of item No. 12 of 'A' schedule property along with the consideration of the claim of the plaintiffs for specific enforcement of Agreement to Sell in respect of the very property in O.S. No. 284/2005.

(2.) IT is necessary to notice here that suit O.S. No. 237/2009 for partition and separate possession has been filed by the sisters of defendant No. 1 H.S. Jagannath against defendant No. 1 and other members of the family contending inter alia that the suit schedule properties consisting of 12 properties as described in 'A' schedule and 3 properties as described in 'B' schedule were the joint family properties over which plaintiffs had share.

(3.) SHANTHAMMA had instituted O.S. No. 284/2005 seeking specific enforcement of the said agreement. The said suit is pending on the file of the Civil Judge (Sr. Dn.), Mulbagal. In the present suit O.S. No. 237/2009, defendants including H.S. Jagannath did not file any written statement. Thus, the suit remained uncontested. The Trial Court, after recording evidence of the plaintiffs, decreed the suit allotting respective shares to the plaintiffs and defendants. This judgment was rendered on 24.08.2011. This was challenged by Shanthamma - respondent No. 1 herein in appeal in R.A. No. 92/2011. The lower Appellate Court granted permission to Shanthamma to prosecute the appeal and after hearing, both parties remanded the matter for fresh consideration only with regard to item No. 12 which was the subject matter of the Agreement to Sell dated 15.04.2005 by providing an opportunity to the said Shanthamma.