M Jayanna & Others vs K M Shivamurthy & Others

N S Sanjay Gowda, J

Sri K.M.Shivamurthy, the 1st respondent herein instituted a suit in O.S.No.897/2018 seeking a direction to defendants 7 and 8 (appellants herein) to allot him 1/4th share in land bearing Sy.No.10 measuring 5 acres 27 guntas situate in Kannalli Village, Yeshwanthpura Hobli, Bengaluru North Taluk.

The claim of Shivamurthy was based on the ground that he was the son of Mallappa and Mallappa had three brothers and the suit property was a coparcenary property and as a consequence, he was entitled to succeed to the share of his father Mallappa.

In the said suit, an application was filed by defendants 7 and 8 under Section 11 of CPC for rejecting the suit on the principles of res judicata. It was sought to be contended that one K.P.Sambashivaiah and two others had instituted a suit in O.S.No.971/2012 seeking partition and in the said suit, Shivamurthy was the 10th defendant and the Trial Court, ultimately, in the said suit had held that the suit property had already been subjected to partition and in the light of this finding, the claim of Shivamurthy would not be tenable. The Trial Court, by the impugned order, has rejected the said application and hence, the revision.

From the narration above, it is clear that Shivamurthy had not filed the earlier suit seeking partition. Thus, the suit filed by Shivamurthy cannot be dismissed on the ground that it is hit by Section 11 of CPC. It is to be noticed here that O.S.No.971/2012 had been filed by K.P.Sambashivaiah and two others and any finding recorded therein cannot obviously bind Shivamurthy or preclude him from filing a fresh suit, if he has an independent right over the property.

The Trial Court, in my view, was justified in passing the impugned order. Consequently, the revision petition is dismissed.

However, it is needless to state that the petitioners would be at liberty to urge that the findings recorded in O.S.No.971/2012 would be binding on it and the suit for partition filed by Shivamurthy would be untenable.

Having regard to the fact that the suit is of the year 2018, the Trial Court shall make an endeavour to dispose of the suit at the earliest, subject to the co-operation of both the parties.