IN THE HIGH COURT OF KARNATAHA CIRCUIT BENCH AT DHARWAD DATED THIS THE 4th DAY OF JULY, 2011. Before THE HON’BLE MR.JUSTICE K.GOVINDARAJULU 2002 SUBBAVVA S GANI W/O SANGAPPA GANI Age: 44 YRS, OCC:HOUSEHOLD WORK R/O KOLLU BASAVANABAGEWADI TQ BIJAPUR DIST APPELLANT (By Sri. : ANAND.R.KOLLI, ADV.) AND SHIVABALAWWA W/O LAXMAPPA MARUTAGI 75 YRS, OCC:HOUSEHOLD WOK R/O MUANAL BAGALKOT DIST 2. HANAMANT LAXMAPPA MAUTAGI 45 YRS OCC:SERIVE AT KANORIYA INDUSTRIES BAGALKOT 3. KALLAPPA LAXMAPPA MARUTAGI 40 YRS, OCC:AGRIL R/O MURANAL BAGALKOT 4— 4 MALIYAPPA LAXMAPPA MARUTAGI 38 YRS, OCC:AGRIL R/O MURANAL BAGALKOT DIST 5. RAMAPPA LAXMAPPA MARUTAGI 35 YRS, OCC:AGRIL R/O MURANAL BAGALKOT DIST RESPONDENTS (By Sri, : S.B.HEBBALLI, ADV) THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 23.7.02 PASSED IN OS NO.170/2000 ON THE FILE OF THE I ADDL.CIVIL JUDGE (SR.DN.), BAGALKOT, DISMISSING THE SUIT FILED BY THE APPELLANT FOR PARTITION AND SEPARATE POSSESSION OR SHARE IN COMPENSATION AMOUNT. These RFAs coming on for final hearing this day, the Court delivered the following: JUDGMENT Plaintiff in OS No.170/2000 on the file of I Addi. Civil Judge (Sr.Dn.) Bagalkot, is the appellant in the appeal under Section 96 CPC. 2. Parties will be referred, according to their status found in the court below for convenience. 3. Suit is filed by the plaintiff seeking for partition. It is resisted by the defendants. While so, one of the ground urged by the defendant is that property in Survey No. 173/2A+2B are acquired and thereafter, money is deposited. So, suit as the one framed is not maintainable. 4. Learned trial Judge with the following reason has disbelieved the case of the plaintiff. “Para 10. Ex.P.-5 the record of the right pertaining to RS.No.173/2A/2B measuring 3-Acres 20-guntas is standing in the name of another person Basalingappa Somappa Gani who is having half share in this property. So the defendant are having share only to the extend of 1-Acre 20-Guntas. All the while the evidence of PW- 1 is that she has filed this suit for claiming compensation. So far she has not taken care about the landed or house properties, but when the lands were submerged, it jumped up her mind to claim compensation amount. Ex.P-6 to 8 the resolution copies of the Murnal panchayat will disclose that these documents are patched up to claim compensation. Therefore, the main intention off the party is to get share in the compensation amount. But she has not paid proper court fee. Hence, the court fee paid by the Plaintiff is also not correct and accordingly, the Plaintiff who is not having right to seek partition and possession of 1/6th share is also not entitled to seek share in the compensation amount and accordingly, I answer issue No. 1 and 2 in the negative”. 5, Learned advocate for the defendant contend that the Court should not decide the case for partition in such fashion. Subject -4- has to be decided along with other defence urged by the defendants, so has no objection for remand. 6. Advocate for the Plaintiff on the other hand submits that then being disputed question of facts, seek for order of remand. 7. The judgement recorded by the learned trial judge in OS No. 170/2000 is set aside. 8. The trial Court is directed to restore the suit to its original number permit the parties to lead evidence, allowed all legal aspects that are pennissible under law, decide the case afresh in accordance with law. Both sides to appear before the Court below without fresh notice by 25/8/2011. In the meanwhile the registry to send the LCRs to trial Court. 9. The case is sufficiently old. Learned trial Judge has to decide the case within a span of 6 months provided the plaintiff prosecutes the case without seeking any adjournment. sat TUDGt Vmb