Karnataka High Court
N.Anand Rao S/O Sri.N.Rangaiah vs Smt.K.R.Radhika W/O Sri. H. Ravindra on 26 July, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2024:KHC-D:9469-DB
RFA No. 100107 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO. 100107 OF 2019 (PAR/POS)
BETWEEN:
1. N. ANAND RAO, S/O. SRI. N. RANGAIAH,
AGE: 62 YEARS, OCC: BUSINESS,
R/O: "SEVEN HILLS"
PLOT NO.9, GANDHINAGAR,
NEAR MARKET, 18TH WARD, BELLARY.
2. SMT. N. VASANTHA, W/O. SRI. N. ANANDA RAO,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O: "SEVEN HILLS"
PLOT NO.9, GANDHINAGAR,
NEAR MARKET, 18TH WARD, BELLARY.
...APPELLANTS
(BY SRI. GODE NAGARAJA, ADVOCATE)
AND:
Digitally signed
by GIRIJA A
BYAHATTI
Location: HIGH
1. SMT. K.R. RADHIKA, W/O. SRI. H. RAVINDRA,
COURT OF AGE: 49 YEARS, OCC: HOUSEHOLD,
KARNATAKA
R/O: SOMESHWARA EXTENSION,
DODDABALLAPUR TOWN,
BANGALORE RURAL DISTRICT.
2. SMT. SARAWSWATHAMMA,
W/O. LATE SRI. H. JANARDHAN,
AGE: 76 YEARS, OCC: HOUSEHOLD,
R/O: NO.9 KHB COLONY,
GANDHINAGAR, 1ST CROSS, BELLARY,
ALSO AT PLOT NO.44, ANTHAPUR COLONY,
BELLARY-533101.
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NC: 2024:KHC-D:9469-DB
RFA No. 100107 of 2019
3. H. SURESH, S/O. LATE. SRI. H. JANARDHAN,
AGE: 56 YEARS, OCC: BUSINESS,
R/O: NO.9 KHB COLONY,
GANDHINAGAR, 1ST CROSS, BELLARY,
ALSO AT PLOT NO.44, ANTHAPUR COLONY,
BELLARY-533101
4. H. HAREESH, S/O. LATE SRI. H. JANARDHAN,
AGE: 50 YEARS, OCC: BUSINESS,
R/O: NO.9 KHB COLONY,
GANDHINAGAR, 1ST CROSS, BELLARY,
ALSO AT PLOT NO.44, ANTHAPUR COLONY,
BELLARY-533101
5.
SMT. SHYALAJA, D/O. LATE. PADMANABHA,
AGE: 52 YEARS, PCC: HOUSEHOLD,
R/O: NO.9 KHB COLONY,
GANDHINAGAR, 1ST CROSS, BELLARY,
ALSO AT PLOT NO.44, ANTHAPUR COLONY,
BELLARY-533101 ...RESPONDENTS
( SRI. J. YUGANDHAR, ADVOCATE FOR C/R1;
R2 SERVICE HELD SUFFICIENT, NOTICE TO R3, R4 AND R5 SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
ORDER 41 RULE 1 R/W UNDER SECTION 96 OF THE CODE OF CIVIL
PROCEDURE, PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE
ORDER AND DECREE DATED 28/11/2018 PASSED BY THE PRINCIPAL
SENIOR CIVIL JUDGE AND C.J.M. BALLARI IN F.D.P.NO.23/2011 AND
I.A.NO.6 FILED BY THE APPELLANTS HEREIN MAY KINDLY BE
ALLOWED AS PRAYED FOR AND GRANT SUCH ANY OTHER RELIEFS
WHICHEVER DEEMS FIT TO THIS COURT UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE AND ALLOW THIS APPEAL WITH
COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.07.2024 AND COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT', THIS DAY, T.G.SHIVASHANKARE GOWDA J.,
PRONOUNCED THE FOLLOWING:
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NC: 2024:KHC-D:9469-DB
RFA No. 100107 of 2019
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
and
HON'BLE MR.JUSTICE T. G. SHIVASHANKARE GOWDA
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA) In this appeal, respondent Nos.5 and 6 have challenged the order passed in Final Decree Proceedings No.23/2011 on 28.11.2018 by the Principal Senior Civil Judge and C.J.M., Ballari (for brevity 'the FDP Court').
2. The appellants were the respondent Nos.5 and 6, respondent No.1 was the petitioner and respondent Nos.2 to 5 were respondent Nos.1 to 4 before the FDP Court. Hence, for the sake of convenience, parties shall be referred to as per their status before the FDP Court.
3. The brief facts of the case are, the petitioner as plaintiff has filed a suit in O.S.No.74/2006 against the respondent Nos.1 to 4/defendants No.1 to 4, seeking grant of partition and separate possession of her share in three properties consists of item No.1, a house property in -4- NC: 2024:KHC-D:9469-DB RFA No. 100107 of 2019 Kh.No.9, K.H.B.Colony, 1st Cross, Gandhinagar, Ballari and item Nos.2 and 3, two landed property situated at Somasamudra village, Ballari taluk. The suit came to be decreed by judgment and decree dated 16.12.2010 granting 6/25th share in favour of the petitioner, 6/25th share each in favour of respondent Nos.1 to 3 and 1/25th share in favour of respondent No.4. Challenging the said judgment and decree, the defendant No.4 has filed RFA No.3052/2011, defendant Nos. 1 to 3 have filed RFA No.3044/2011. By common judgment dated 29.11.2002, both the appeals came to be dismissed by this Court. Thereby, the litigation reached the finality.
4. In execution of preliminary decree, the plaintiff as petitioner has filed F.D.P.No.23/2011. In the F.D.P. proceedings, the present appellants were arrayed as respondent Nos.5 and 6, as purchasers of item No.1 of the suit schedule property from respondent No.2 as per the sale deed dated 24.11.2005. Before the F.D.P. Court, originally the respondent Nos. 5 and 6 placed ex-parte. -5-
NC: 2024:KHC-D:9469-DB RFA No. 100107 of 2019 On 27.04.2017, they have filed an I.A.No.V under Order X Rule 7 read with Section 151 of the Code of Civil Procedure. The said application came to be rejected on the ground that, in the suit they were not granted any preferential right. Against the said order, they have filed W.P.No.109414/2017, before this Court. The said writ petition came to be dismissed on 20.09.2018, however permitting the respondent Nos. 5 and 6 to participate in the F.D.P. proceedings, on payment of cost of Rs.5,000/- to the petitioner.
5. The F.D.P. Court by order dated 14.03.2017 has appointed a City Surveyor of ADLR Office, Ballari in respect of item No.1 and Taluk Surveyor in respect of item Nos.2 and 3 as Court Commissioners and to suggest the feasibility of effecting division of the properties. The City Surveyor filed a report on 22.09.2017 mentioning that division of item No.1 is not possible unless demolition of the building. As per order dated 06.02.2018, FDP Court issued a fresh direction to the Court Commissioner to -6- NC: 2024:KHC-D:9469-DB RFA No. 100107 of 2019 submit possible demarcation of item No.1. On 20.02.2018, the Court Commissioner has filed a fresh proposal in 'A' and 'B' form. On 12.03.2018, respondent No.2 proposed to buy the share of the petitioner at its market value, which came to be rejected by the petitioner.
6. The appellants/respondent Nos.5 and 6, filed objections to the report of the Court Commissioner and also sought for an enquiry regarding feasibility of effecting partition of the properties. After hearing both parties, the FDP Court has rejected their objections. Appellants/Respondent Nos.5 and 6 have also filed I.A.No.6 under Section 3(1) read with Section 2 of the Partition Act, 1893 ('the Act' for brevity) seeking permission to purchase item No.1 at the market value pertains to share of the petitioner. The application came to be rejected and the FDP Court allowed the petition, allotted the share in favour of the petitioner as suggested by the Court Commissioner and order to draw final decree. -7-
NC: 2024:KHC-D:9469-DB RFA No. 100107 of 2019 Aggrieved by the same, appellants/respondent Nos.5 and 6 have filed this appeal on various grounds.
7. We have heard the arguments of Sri.Gode Nagaraja, learned counsel for the appellants/respondent Nos.5 and 6 and Sri.J.Yugandhar, learned counsel for petitioner.
8. It is contended by the learned counsel for the appellants/respondent Nos. 5 and 6 that the petitioner has obtained the decree in O.S.No.74/2006 in a fraudulent manner without arraying the appellants as party to the suit in spite of knowing fully well that they are the purchasers of suit item No.1 property. Such purchase was before filing of the said suit. The appellants are the bonafide purchasers of the share of respondent Nos.1 to 4. The appellants are ready to purchase the share of the petitioner also and they filed I.A.No.6 before the FDP Court. But unfortunately, the Court has dismissed the application by exercising its power beyond the jurisdiction. The first report of the Court Commissioner clearly explains -8- NC: 2024:KHC-D:9469-DB RFA No. 100107 of 2019 that the item No.1 is not divisible. The FDP Court has not followed the fundamental principles as enumerated under Sections 2 and 3 of the Act. Portion Nos.II and III were allotted to the petitioner subject to deposit of Rs.4,68,000/- to be payable to the appellants, which is contrary to the principles laid down in Sections 2 and 3 of the Act. Item Nos.2 and 3 of the decree schedule are fertile lands, which fetch good market value. Respondent No.4 is ready to compensate the petitioner by giving equitable land in item Nos.2 and 3. If the petitioner accepts the said land, partition will be a partition by metes and bounds and equity can be achieved.
8(a) It is further contended that the FDP Court has committed an error in holding that portion No.VI, which is equivalent to portion Nos.I and II to an extent of 355 sq.ft. marked as 'ABCD' portion, is common passage. The Trial Court has erroneously held that portion No.VI is equivalent to portion Nos.I and II as common passage and also 82.5 sq.ft. stair case creating common usage rights in -9- NC: 2024:KHC-D:9469-DB RFA No. 100107 of 2019 favour of the petitioner. Hence, the matter requires to be remanded back to the FDP Court to examine the non- feasibility of division of item No.1 compensating the petitioner by allotting the portion of landed property in item Nos.II and III or sale of the share of the petitioner in favour of the appellants equivalent to the market value. He sought for remand of the matter to FDP Court to redo the exercise.
9. Per contra, learned counsel for the petitioner has contended that the appellants with an intention to defeat the interest of the petitioner have purchased the property knowing the consequences and they are not the necessary party to the suit for determination of share of the petitioner. The petitioner is having a legal share in all the suit schedule properties and they urged their right before the Trial Court and the suit came to be decreed granting 6/25th share. The appellants being the purchasers ventured to purchase the property where the petitioner is having a joint ownership. They cannot blow
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NC: 2024:KHC-D:9469-DB RFA No. 100107 of 2019 hot and cold that they are entitled to claim equity. Suit item No.1 property is not a bit and piece of land, it is a huge residential and commercial building situated in Ballari city consists of 7 shops as well as house on the backyard totally measuring 3750 sq.ft. of sital area. The appellants in collusion with the Court Commissioner have got filed the report indicating that the property is not divisible. When such a huge property is amenable for division, there is no question of applying Section 2 or Section 3 of the Act. For this reason, the FDP Court has directed the Court Commissioner to re-do the report and to propose the allotment of share as per the preliminary decree. 9(a) It is further contended that, the Court Commissioner has filed a fresh report with a specific demarcation, providing common usage right in staircase, common passage to go to the backyard house, ground floor of the complex, first floor and the second floor portion is carved out. The portions suggested for allotment is equal to the share of the parties as decreed. For the
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NC: 2024:KHC-D:9469-DB RFA No. 100107 of 2019 reason of excess measurement of 130 sq.ft., the Commissioner has made assessment of value based on the market price and accordingly, the petitioner was directed to deposit Rs.4,68,000/-. In compliance of the order, said amount has been deposited the said amount before the FDP Court. The order of the FDP Court is based on the correct materials and there is no scope for putting the property under the sale. The intention of the appellants is to force the petitioner to sell her share of property in their favour, which is not sustainable in law. Even giving up of the share in item No.1 and taking equal share in item Nos.2 and 3 does not arise as the agricultural land has been properly divided. There is no question of petitioner taking share in the agricultural property equivalent to the share in the building. The report of the Commissioner is proper, the FDP Court has rightly accepted the report and he supported the impugned order.
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NC: 2024:KHC-D:9469-DB RFA No. 100107 of 2019
10. We have given our anxious consideration to the arguments advanced on behalf of both parties and perused the materials on record.
11. Now the points that arise for our consideration are:
(i) Whether the partition effected by the FDP Court is in contravention of Section 3(1) read with Section 2 of the Partition Act, 1893?
(ii) Whether the impugned order calls for our interference?
Re: Point No.(i):
12. The description of item No.(i) of the suit schedule in the preliminary decree is as follows:
"The house property in Kh.No.9 of the K.H.B.Colony, 1st Cross, Gandhinagar, Bellary."
13. Petitioner is granted 6/25th share whereas, defendant Nos.1 to 3/respondent Nos.1 to 3 were granted 6/25th share each and defendant No.4/Respondent No.4
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NC: 2024:KHC-D:9469-DB RFA No. 100107 of 2019 was granted 1/25th share. Though the description of the property did not contain the measurement and details of the existence of building and vacant space, it is undisputed that the said property consists of shop premises, ground floor, first floor and second floor with a staircase, and on the backyard of the shop building, there is a separate residential house with separate access from the main road. The records show that the sital measurement is 75 feet x 50 feet, out of which, the shops in the ground floor consist of 432 sq.ft., 612 sq.ft. each in the first and second floor; a house property in the said site consists of 1160 sq.ft. in the ground floor and 580 sq.ft. in the first floor. The photographs of the building property are also made available in the records.
14. Under the preliminary decree, the petitioner was allotted 6/25th share. The entire property is to be divided into 25 parts. The petitioner is entitled to 900 sq.ft. of sital area. The extent of shop building will be 432 (ground floor)+ 612(first floor) + 612 (second floor) =
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NC: 2024:KHC-D:9469-DB RFA No. 100107 of 2019 1656 sq.ft.; then share of the petitioner comes to 397.44 sq.ft. In the house property i.e., 1160 (ground floor) + 580 (first floor) = 1740 sq.ft. the share of the petitioner comes to 417.6 sq.ft. Open yard around the house is 1650 sq.ft. , the share of the petitioner comes to 396 sq.ft. In order to meet the equity, the petitioner has to be given share in the open yard, house building and also shopping complex and it comes to 2110.44 sq.ft. This extent is not a small portion. The division of share shall be value based equity and in this regard, the Court Commissioner has assessed the market value of the entire property and carved out the share of the petitioner equivalent to her share of 6/25th. Hence, we hold that the item No.1 is divisible among the parties as suggested by the Court Commissioner.
15. We have perused the report of the Commissioner. The Commissioner has noted the topography of the entire property, open yard, shop building and also the house. He has prepared a sketch
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NC: 2024:KHC-D:9469-DB RFA No. 100107 of 2019 dividing the property into Portion-I, II, III, IV and V as below as per sketch 'A'. :
(I) 82.50 sq.ft. small shop;
(II) 82.50 sq.ft. of staircase;
(III) 495 sq.ft. of 3 shops each measuring 16½x10 sq.ft. in the ground floor, 3 shops in the first and second floors;
(IV) 1650 sq.ft. of passage space around the house located abutting to shopping complex;
(V) 1440 sq.ft. of RCC House with first floor house measuring 30 x 21 sq.ft.
The proposal made by the Court Commissioner for division of the entire property is shown in Sketch 'B' in portion I to VI as follows:
(I) 495 sq.ft. - 3 shops in ground floor, 2 shops in first floor, 1 shop in second floor;
(II) 165 Sq.Ft - 1 shop in ground floor, 1 shop in first floor;
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NC: 2024:KHC-D:9469-DB RFA No. 100107 of 2019 (III) 760 Sq.Ft - northern portion of house; (IV) 760 Sq.Ft - Middle portion of house; (V) 820 Sq.Ft - Southern portion of house; (VI) 750 Sq.Ft - Common passage.
16. The petitioner is allotted one shop located in the ground floor, above the said shop, one shop in the first floor, as shown in portion-II. Northern portion of the house as shown in portion - III in Sketch 'B'. The petitioner is also granted rights for common usage of the passage marked as 'ABCD' and staircase shown in portion
- II in Sketch 'A'.
17. The report of the Commissioner also shows allotment of 3 shops in the ground floor, 2 shops in the first floor, a shop in the second floor as shown in portion-I in Sketch 'B', middle and southern portion of the house as shown in portion -IV and V in Sketch 'B', with common usage of the passage marked as 'ABCD' and staircase shown in portion - II in Sketch 'A', in favour of
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NC: 2024:KHC-D:9469-DB RFA No. 100107 of 2019 appellants/respondent Nos. 5 and 6. In view of said option given by the Court Commissioner, the Trial Court has rightly held that there is a feasibility of division and such division is equitable.
18. Adverting to the argument of the learned counsel for the appellants that FDP Court ought to have applied Section 3(1) read with Section 2 of the Act, it is relevant to extract said provisions of law as under:
"2. Power to Court to order sale instead of division in partition suits.- Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.
3. Procedure when sharer undertakes to buy.- (1) If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the Court shall order a
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NC: 2024:KHC-D:9469-DB RFA No. 100107 of 2019 valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained, and may give all necessary and proper directions in that behalf."
By reading the above provision, it is clear that the Court has to order for sale, if the division of property cannot reasonably or conveniently be made. If any shareholder applies for leave to buy at a valuation, the share as defined under Section 2 of the Act, then the Court shall order for valuation of the share or shares and offer to other sharers to sell the property.
19. In the instant case, the total extent of the property is 3750 sq.ft. which consists of commercial building, shops, residential house, open yard and passage. If the property is divided, the extent of land that the petitioner is entitled to is considerably bigger and it can be made use of by her. It is the contesting defendants including the appellants, who are ready to buy share of the petitioner at the market value for which the petitioner is not willing. But at the same time, there is no offer from them whether they are willing to sell their share of
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NC: 2024:KHC-D:9469-DB RFA No. 100107 of 2019 property in favour of the petitioner. When a party pleads equity, he must also do equity. When there is no counter proposal for selling their share of property, it is not proper on the part of the appellants to ask the petitioner to sell away her share of property in their favour. Hence, having regard to the extent of land and the report of the Court Commissioner, which clearly show that the petitioner can enjoy one shop each in the ground and first floor of the building and portion of house, the argument of the appellants/respondent Nos.5 and 6 is not substantiated by conduct.
20. Adverting to the argument of Sri.Gode Nagaraj that, petitioner can be compensated in the agricultural lands i.e., in item Nos.2 and 3, the agricultural lands cannot be equated with commercial complex. The petitioner has fought the litigation since 2006 and she has to enjoy the fruits of the decree. The appellants being the subsequent purchasers cannot curtail her right to enjoy the usufructs after long period of 18 years. Hence, the
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NC: 2024:KHC-D:9469-DB RFA No. 100107 of 2019 proposed apportionment of shares is not in contravention of Section 3(1) or Section 2 of the Act. The intention of the appellant/respondent Nos.5 and 6, seeking remand is to gain more time to force the petitioner to come to their terms for sale of their portion, as there are successful in acquiring 19/25th share in the entire item No.1. We do not found any valid reason or force in the request for remand for redoing the whole process.
21. As referred to supra, the report of the Court Commissioner clearly points out that the he has considered the value of the property as per the prevailing market price. Keeping that in mind, the property was divided as Portion Nos.I to VI in Sketch 'B'. The appellants are allotted 3 shops in the ground floor, 2 shops in the first floor, a shop in the second floor as shown in portion-I in Sketch 'B'. Middle and southern portion of the house as shown in portion -IV and V in Sketch 'B', with common usage of the passage marked as 'ABCD' and staircase shown in portion - II in Sketch 'A'. In fact, major portion
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NC: 2024:KHC-D:9469-DB RFA No. 100107 of 2019 of ground floor area out of 50 x 75 sq.ft. will be under the control of the appellants only whereas, the petitioner is given only enjoyment of one shop in the ground and first floor of the commercial building with a common usage right of staircase, portion house and right of usage of 'ABCD' passage as approach to said portion of home. We are persuaded to hold that the Court Commissioner has applied his mind in demarcating the Portions I to V and given option to the petitioner and the appellants/respondent Nos. 5 and 6, which is more equitable than the sale option offered to the petitioner. We answer point No.(i) accordingly.
Re: Point No.(ii):
22. We have carefully perused the impugned order. As discussed supra, FDP Court has considered the division of the properties on the basis of the market value, the allotment of share to the petitioner to an extent of 6/25th share and allotting the remaining property in favour of appellants/respondent Nos. 5 and 6. The FDP Court also
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RFA No. 100107 of 2019
gone to an extent of compensating the
appellants/respondents No.5 and 6 by excess
measurement of 130 sq.ft. on account of allotment of shops. FDP Court has directed the petitioner to deposit Rs.4,68,000/-. Equity is done not only to the petitioner but also to appellants/respondent Nos. 5 and 6. Under such circumstances, we do not find any error or illegality in the impugned order. We answer point No.(ii) in the negative.
23. In view of our discussion supra, the appeal is devoid of merits, in the result, the following:
ORDER Appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE KNM/GAB List No.: 1 Sl No.: 40