Friday, 1 March 2019

Whether court can direct parties to include more properties in suit for partition?

 Party to the suit cannot be forced or compelled to include the properties which are found in Exhibits before the Court as is done in the present case. The Trial Court has misdirected itself while passing the impugned judgment in the present suit. The preliminary issue with regard to whether the suit is bad for non-joinder of necessary parties and whether the suit of the plaintiffs is for partial partition as such the suit is not maintainable, are the issues which are to be answered along with other issues in the suit. The Trial Court fell into error in not answering all the issues. The Trial Court has committed an error in directing the parties to include the properties mentioned in Ex. D4 to Ex. D7. It is for the parties, either the plaintiffs or defendants to include the properties to the suit schedule for partition. 

IN THE HIGH COURT OF KARNATAKA

Writ Petition No. 44513 of 2014 (GM-CPC)

Decided On: 06.08.2018

C.S. Sundaresha  Vs. C.S. Ananthalakshmi and Ors.

Hon'ble Judges/Coram:
Shankar Ganapathi Pandit, J.

Citation: AIR 2019 Karnat 5


1. Aggrieved by the judgment dated 11-08-2014 passed in O.S. No. 35/2008 on the file of the Senior Civil Judge at Hunsur, the petitioners are before this Court under Article 227 of the Constitution of India.

2. The petitioners are plaintiffs and respondents are defendants in O.S. No. 35/2008 filed for partition, separate possession and mesne profits. Based on the pleadings, the Trial Court framed as many as 12 issues and one additional issue. The parties led their evidence on all the issues and the trial was complete. When the matter reached the stage of arguments, the trial Court treated issue Nos. 6 and 7 as preliminary issues and heard the arguments on the said issues. After hearing the parties on the said two issues, the Trial Court passed the following order:

"Plaintiffs are directed to include the documents mentioned in Exs. D4 to D7 in the suit schedule and proceed with the matter.

With this observation, suit is; closed for the present, keeping open the liberty to both parties to get the matter re-open only after inclusion of properties mentioned in Exs. D4 to D7 in the suit schedule with full description."

By the above said order, the Trial Court closed the suit keeping open liberty to both parties to get the matter re-opened only after inclusion of properties mentioned at Ex. D4 to Ex. D7, which order is impugned in the present writ petition.

3. Heard the learned counsel for the petitioners as well as the respondents and perused the writ papers.

4. Learned counsel for the petitioners submits that the judgment of the Trial Court is wholly erroneous and the Trial Court could not have passed such an order closing the suit, keeping open the liberty to both parties to reopen the suit only after inclusion of the properties mentioned in Ex. D4 to Ex. D7. It is also submitted that it is for the parties to include the properties in a partition suit and court cannot force or compel the parties to include the properties. It is his further submission that the judgment of the Trial Court is opposed to Order XIV, Rule 2 of CPC. Having recorded the evidence of both the parties on all the issues, the court, in accordance with Order XIV, Rule 2 of CPC ought to have answered all the issues in the suit. Even the said two issues which were taken up by the Court are not answered properly in the judgment. Therefore, he prays that the impugned judgment may be set aside and the matter may be remanded to the Trial Court for fresh consideration on all issues.

5. On the other hand, learned counsel for the respondents would also submit that Trial Court is not justified in passing such a judgment wherein the Trial Court closed the suit keeping open the liberty to both parties to reopen the suit by including the properties mentioned in Ex. D4 to Ex. D7 for partition. It is also his submission that it is for the parties in a partition suit either plaintiff or defendant to include the properties, whether it is joint family or coparcener property or properties available for partition to include the same to the suit schedule.

6. Having heard the arguments of the learned counsel for the petitioners as well as the respondents and on perusal of the judgment dated 11-08-2014 in O.S. No. 35/2008, I am of the view that the Trial Court has committed an error in passing the impugned judgment, which requires to be set aside. It is an admitted fact that both parties have led then-evidence on the issues framed by the Trial Court. Having heard the arguments on issue Nos. 6 and 7 treating those two issues as preliminary issues, the Trial Court has failed to answer even those two issues properly. Further under Order XIV, Rule 2 of CPC the Court has to answer all the issues. Issue Nos. 6 and 7 taken up in the case on hand also are not answered properly in the judgment. Party to the suit cannot be forced or compelled to include the properties which are found in Exhibits before the Court as is done in the present case. The Trial Court has misdirected itself while passing the impugned judgment in the present suit. The preliminary issue with regard to whether the suit is bad for non-joinder of necessary parties and whether the suit of the plaintiffs is for partial partition as such the suit is not maintainable, are the issues which are to be answered along with other issues in the suit. The Trial Court fell into error in not answering all the issues. The Trial Court has committed an error in directing the parties to include the properties mentioned in Ex. D4 to Ex. D7. It is for the parties, either the plaintiffs or defendants to include the properties to the suit schedule for partition. The judgment of the Trial Court, viewed from any angle would not stand to reasons. Hence, the judgment dated 11-08-2014 in O.S. No. 35/2008 is set aside, the matter is remanded to the Trial Court for fresh consideration on all the issues.

7. With the above observations, the writ petition is allowed.


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