Karnataka High Court
Smt Chikkammanni vs Sri Puttaswamy on 7 December, 2021
Bench: K.S.Mudagal
W.P.No.14114/2020
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
WRIT PETITION NO.14114/2020 (GM-CPC)
BETWEEN:
1. SMT. CHIKKAMMANNI
W/O LATE ERAIAH,
AGED ABOUT 59 YEARS
2. SHRI SURESH
S/O LATE ERAIAH
AGED ABOUT 37 YEARS
3. SMT. KALA
D/O LATE ERAIAH
AGED ABOUT 41 YEARS
PETITIONERS NO.1 TO 3 ARE
R/AT 3RD CROSS, GANDHI NAGAR
MANDYA CITY - 571 401.
4. SMT. YASHODA
W/O SHIVARAMU AND
D/O LATE ERAIAH
R/AT GANTAGOWDANAHALLI
VILLAGE, KEREKODU HOBLI
MANDYA TALUK - 571 405.
... PETITIONERS
(BY SRI K.M.SANATH KUMARA, ADVOCATE)
AND:
1. SHRI PUTTASWAMY
S/O LATE BORAIAH
AGED ABOUT 68 YEARS
R/AT 2763, 3RD CROSS
GANDHINAGAR,
MANDYA CITY - 571 401
W.P.No.14114/2020
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2. SHRI B.K. KUMARA
3. SHRI D. RAJU
4. SMT. M.R.RENUKA
5. SHRI SUBRAMANYA M.R.
6. SHRI C.A.SHIVALINGAIAH
7. SHRI M.C.SHANKARAIAH.
... RESPONDENTS
(BY SRI BHARGAVA D. BHAT, ADVOCATE FOR
SRI P.B.AJIT, ADVOCATE FOR R1;
VIDE ORDER DATED 07.12.2020 R2 TO R7 ARE DELETED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 09.06.2020 PASSED BY THE LEARNED FIRST
ADDITIONAL SENIOR CIVIL JUDGE AT MANDYA ON THE MEMO
DATED 18.11.2019 IN F.D.P.NO.2/2001 AT ANNEXURE-N AND
ETC.
THIS WRIT PETITION COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Aggrieved by the order of the I Additional Senior
Civil Judge and CJM, Mandya on the memo of first
respondent, respondent Nos.4(a to c) in F.D.P.No.2/2001
have preferred the above petition.
2. Respondent No.1/Puttaswamy filed
O.S.No.12/1990 against his father Boraiah and brother
B.K.Kumara for partition and separate possession of his
W.P.No.14114/2020
1/3rd share. The suit was decreed on 06.09.1994 granting
1/3rd share to the first respondent in the suit schedule
properties. Challenging that order, defendants in the said
suit filed R.A.No.48/1994 before District Court, Mandya,
which came to be dismissed on 10.06.1999 confirming the
judgment and decree of the trial Court.
3. On 08.12.1999, respondent No.2/defendant
No.2 sold the portion of suit schedule item No.1 property
to Eraiah. The first respondent filed F.D.P.No.2/2001
against his father and brother. Eraiah was also impleaded
in the said suit as respondent No.4.
4. Pending F.D.P.No.2/2001, Boraiah, father of
the first respondent and purchaser Eraiah died. The
petitioners came on record in FDP as the legal
representatives of Eraiah. Eraiah had filed I.A.No.15 in
F.D.P.No.2/2001 claiming that after purchasing the
property, he has developed the property, therefore,
property purchased by him shall be allotted to his share.
The trial Court dismissed that application on 15.07.2009.
W.P.No.14114/2020
5. Aggrieved by that order, Eraiah preferred
W.P.No.26729/2009 (GM-CPC) before this Court. This
Court vide Annexure-D dated 26.07.2011 allowed the
petition setting aside the order dated 15.07.2009 passed
by the trial Court. This Court further directed that the trial
Court shall reconsider the issue with regard to equitable
partition and kept open all the contentions of the parties
for consideration. Thereafter, the trial Court took up
I.A.No.15 and main matter in F.D.P.No.2/2001 for
consideration.
6. By order at Annexure-E dated 14.08.2017, the
trial Court allowed F.D.P.No.2/2001. So far as item No.1
trial Court granted 5/9th share towards eastern portion of
item No.1 of the plaint schedule properties to respondent
No.1 and dismissed I.A.No.15. Thereby prayer of the
petitioners for allotment of eastern portion of item No.1
property to their share was rejected.
7. The petitioners challenged that order before V
Additional District and Sessions Judge, Mandya in RA
No.47/2017. The First Appellate Court by order at
W.P.No.14114/2020
Annexure-G dated 24.09.2018 allowed R.A.No.47/2017
and remanded the matter to the trial Court for fresh
consideration adhering to the directions issued by this
Court in W.P.No.26729/2009.
8. In R.A.No.47/2017 the interim stay was
granted in favour of the petitioners staying the order at
Annexrue-E passed in F.D.P.No.2/2001. The petitioners
claim that despite such interim order, on 25.04.2018 in
wrongful execution of the order in F.D.P.No.2/2001, they
were dispossessed. Therefore, on 26.04.2018, they filed
application as per Annexure-H under Section 94(e) read
with Section 151 of CPC seeking restitution of their
possession. Against the order in R.A.No.47/2017, decree
holder filed MSA No.27/2019 which came to be dismissed
on 29.07.2019.
9. When things stood thus, respondent
No.1/decree holder filed memo before the trial Court on
18.11.2019 requesting the Court to consider I.A.Nos.14
and 15 first, then to proceed with the matter. Admittedly,
the application for restitution was filed on 26.04.2018 that
W.P.No.14114/2020
was much later to I.A.No.15 dated 15.06.2009. Therefore,
the reference in the memo as I.A.No.14 cannot be the
reference to the application dated 26.04.2018 for
restitution. Both submit that I.A.No.14 was filed by
petitioners for rejection of Commissioner's report. The
said memo was opposed by the decree holders. The trial
Court by the impugned order held that it considers
I.A.No.15 first in view of the directions issued by this Court
in W.P.No.26729/2009 and R.A.No.47/2017.
10. Final Decree Proceedings was to demarcate
the shares of the parties in terms of the preliminary
decree. I.A.No.15 was filed by the purchaser to allot
property purchased by him to his share. He claims that,
that amounts to equitable partition. Claim of the decree
holder was also for grant of equitable share in terms of the
preliminary decree. The application dated 26.04.2018 was
by the purchasers for restitution of their possession. If at
all they are entitled to the relief under I.A.No.15, then
they will be entitled to restitution under the application
dated 26.04.2018. Therefore, all the questions were
overlapping on each other.
W.P.No.14114/2020
11. Since the order dated 26.07.2011 was passed
by this Court in W.P.No.26729/2009 much prior to the
subsequent development i.e. dismissal of I.A.No.15 dated
18.04.2017 and order of the First Appellate Court in
R.A.No.47/2017, the trial Court and First Appellate Court
could not have resorted to the interpretation that order
dated 26.07.2011 barred the trial Court from considering
claim of the decree holder for grant of final decree or claim
of the petitioners under I.A.No.15 for equitable partition or
their application for restitution. Considering all the said
applications and main matter together could have disposed
of the litigation which is pending for more than 20 years.
12. Under the aforesaid facts and circumstances,
the trial Court was not justified in holding that I.A.No.15
will be considered first and then it proceeds further in
F.D.P.No.2/2001. The said order is unsustainable.
Therefore, the petition is allowed.
The trial Court shall consider I.A.No.15 and I.A.
dated 26.04.2018 for restitution, the Commissioner's
report and the main matter together as expeditiously as
W.P.No.14114/2020
possible. In that process, the trial Court shall also
consider the question of equitable partition and dispose of
the matter within a period of six months from the date of
receipt of the copy of this order.
Sd/-
JUDGE
pgg
