Karnataka High Court
Sri. Gurumallappa vs R. Manjunath on 23 December, 2021
Bench: B.M.Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.50094/2019 (GM-CPC)
BETWEEN :
1 . SRI. GURUMALLAPPA
S/O LATE SRI NAGANNA
AGED ABOUT 46 YEARS,
2. SRI. MAHADEVU @ MAHADEVAPPA
S/O LATE SRI NAGANNA
AGED ABOUT 50 YEARS,
3. SMT. GOWRAMMA
W/O LATE SRI. NAGANNA
AGED ABOUT 65 YEARS,
PETITIONER NOS.1 TO 3 ARE
RESIDING AT THUMBUNERALE VILLAGE
CHIKKAIAHNACHATRA HOBLI
NANJANGUD TALUK
MYSORE DISTRICT - 571 129
4. SRI. MAHESHA
S/O LATE SRI. PAPANNA
AGED ABOUT 49 YEARS,
5. SRI. CHINNAIAH
S/O LATE SRI. PAPANNA
AGED ABOUT 44 YEARS,
2
6. SRI. T. P KRISHNA
S/O LATE SRI. PAPANNA
AGED ABOUT 40 YEARS,
PETITIONER NOS.4 TO 6 ARE
RESIDING AT THUMUNERALE VILLAGE
CHIKKAIAHNACHATRA HOBLI
NANJUNGUD TALUK
MYSORE DISTRICT - 571 129
... PETITIONERS
(BY SRI. UDAYA HOLLA, SENIOR ADVOCATE FOR
SRI. CHANDRASHEKAR S, ADVOCATE)
AND :
1. SRI. R. MANJUNATH
S/O LATE R RANGAPPA ALIAS GUNDAPPA
AGED ABOUT 48 YEARS,
NO.966, KABIR ROAD,
MANDI MOHALLA
MYSORE - 570 021
2. SMT. SUSHEELA
W/O LATE SRI R KUMARASWAMY
AGED ABOUT 35 YEARS,
RESIDING AT NO.559
RAILWAY PARALLEL ROAD
9TH CROSS, RPC LAYOUT
VIJAYANAGARA EAST
BANGALORE - 560 040
3. MASTER K MANEESH
S/O LATE R KUMARASWAMY
AGED ABOUT 7 YEARS,
SINCE MINOR
REPRESENTED BY HIS MOTHER
RESIDING AT NO.559,
RAILWAY PARALLEL ROAD
9TH CROSS, RPC LAYOUT
VIJAYANAGARA EAST
3
BANGALORE - 560 040
4. SRI R JAGADISH
S/O LATE R RANGAPPA @ GUNDAPPA
AGED ABOUT 40 YEARS,
RESIDING AT NO.966, KABIR ROAD
MANDI MOHALLA
MYSORE - 570 001
5. SMT. R RAJASHREE
D/O LATE R RANGAPPA ALIAS GUNDAPPA
AGED ABOUT 47 YEARS,
RESIDING AT NO. 966, KABIR ROAD,
MANDI MOHALLA
MYSORE - 570 021
6. SMT. R JAYASHREE
D/O LATE R RANGAPPA ALAIS GUNDAPPA
AGED ABOUT 45 YEARS
RESIDING AT NO.966, KABIR ROAD
MANDI MOHALLA
MYSORE - 570 021
7. SRI. A G NAGARAJU
S/O LATE GOVINDAPPA
AGED ABOUT 60 YEARS,
41, LINGADHEERANAHALLI
'D' GROUP EMPLOYEES LAYOUT,
BANGALORE - 560 091
8. SRI R RANGANNA
S/O TUMNERALE RANGAIAH
AGED ABOUT 70 YEARS,
NO. 2342, BASAVESWARANAGAR
K R MOHALLA
MYSORE - 570 024
9. SRI. G VENKATEGOWDA
S/O LATE SRI. GIRITHIMMAIAH
AGED ABOUT 62 YEARS,
4
R/O CHENNALINGANAHALLI
LOKKANAHALLI HOBLI
KOLLEGALA TALUK
CHAMARAJANAGAR DISTRICT - 571 443
10. SMT. M KALPANA
D/O LATE M C MUDDAPPA
AGED ABOUT 50 YEARS,
NO.6/1, 14TH CROSS
AGARAHARA DASARAHALLI
BANGALORE - 560 079
11. SRI. KATHYAYINI
D/O LATE SMT. JAYAMMA
AGED ABOUT 50 YEARS,
RESIDING AT VEERAKERALAM
COIMBATORE - 641 007
12. SMT. TILAKA
D/O LATE SMT. JAYAMMA
AGED ABOUT 45 YEARS
RESIDING AT VEERAKERALAM
COMIBATORE - 641 007
13. SRI. MADHUSUDHAN
S/O LATE SMT. JAYAMMA
AGED ABOUT 40 YEARS,
RESIDING AT VEERAKERALAM
COIMBATORE - 641 007
14. SMT. CHIKKA THIMMAMMA
W/O LATE SRI. RANGASWAMY
AGED ABOUT 80 YEARS,
NO. 403, DEVAMBA AGRAHARA
K R MOHALLA
MYSORE - 570 004
15. SMT. LAKSHMI
D/O LATE SRI KOTAPPA,
AGED ABOUT 65 YEARS,
5
RESIDING AT NO.165,
HEBBAL ROAD, METAGALLI
MYSORE - 570 016
16. SMT. SUNANDA
D/O LATE SRI KOTAPPA
AGED ABOUT 55 YEARS,
RESIDING AT NO.165,
HEBBAL ROAD,
METAGALLI
MYSORE - 570 016
17. SRI. GURUMALLAPPA
S/O LATE SRI. MAHADEVAPPA
MAJOR
R/O HOSKOTE VILLAGE
CHIKKAIAHNA CHATRA HOBLI
NANJANGUDU TALUK
MYSORE DISTRICT - 571 129
18. SMT. SHIVALINGAMMA
W/O LATE SRI T G PARASHIVAMURTHY
MAJOR,
R/O THUMBUNERALE VILLAGE
CHIKKAIAHNA CHATRA HOBLI
NANJANAGUDU TALUK
MYSORE DISTRICT - 571 129
19. SRI. SIDDAMALLESH
S/O LATE T G PARASHIVAMURTHY
MAJOR,
R/O THUMBUNERALE VILLAGE
CHIKKAIAHNA CHATRA HOBLI
NANJANAGUDU TALUK
MYSORE DISTRICT - 571 129
20. SRI. GULAPPA
S/O LATE SRI. NINGAPPA
MAJOR,
THUMBUNERALA VILLAGE
6
CHUKKAIAHNA CHATRA HOBLI
NANJANGUD TALUK
MYSORE DISTRICT - 571 129
... RESPONDENTS
(BY SRI. T.N.RAGHUPATHY, ADVOCATE FOR R1 TO R3,
R7, R9 TO R13;
NOTICE SERVED ON R17 TO R19;
NOTICE HELD SUFFICIENT TO R4 TO T6;
NOTICE D/W TO R15, R16 AND R20 ALONG WITH STEPS
TO BRING THE LRS OF R14)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 20.08.2019 (ORDER HOLDING FDP IS
MAINTAINABLE) (ANNX-AD) AND 30.08.2019 (ORDER
ISSUING COMMISSIONER'S WARRNAT) (ANNX-AE) PASSED
BY THE SENIOR CIVIL JUDGE AND JMFC AT NANJANGUD
IN FDP NO.27/2014 AND DISMISS THE FDP NO.27/2014
PENDING ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC AT NANJANGUD.
THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are some of the respondents in
F.D.P.No.27/2014 on the file of the Senior Civil Judge,
Nanjangud (for short, 'the civil Court'). The petitioners
have impugned the civil Court's order dated 20.08.2019
as also its order dated 30.08.2019. The civil Court by
the first order dated 20.08.2019 has rejected the first
petitioner's objections on the maintainability of the
application for drawing up of final decree and the civil
Court, by its subsequent order dated 30.08.2019, has
issued Commissioner's warrant for partition of the suit
schedule properties.
2. The facts necessary for decision in the light
of the rival submissions are stated briefly thus:
Sri.Thumnerala Rangaiah was married to Smt.
Venkatamma (the first wife) and Smt. Alamma (the
second wife); Sri. Kotappa is his son from the first wife
and Sri. Rangappa and six [6] others are his children
from the second wife. Sri.Kotappa's daughters viz.,
Smt. Jayamma , Smt. Lakshmi and Smt. Sunanda have
transferred two [2] properties under the sale deed dated
19.08.1998 and 03.08.1998 in favour of Sri.Naganna
S/o Late Sri.Nagappa and Sri.Papanna S/o Late
Sri.Devappa respectively. While transferring these
properties in favour of the aforesaid, they have
represented that Sri. Kotappa was the absolute owner
and on his demise, they have succeeded to his interest
in the properties.
3. The aforesaid Sri. Rangappa and his six [6]
sisters have filed their suit for partition in O.S.
No.92/1999 on the file of the Civil Judge (Senior
Division) and JMFC, Nanjangud. They have included
these properties transferred in favour of Sri. Naganna
and Sri. Papanna and four [4] other properties. The
property transferred in favour of Sri. Naganna is listed
as suit Item No.1 and the property transferred in favour
of Sri. Papanna is listed as suit Item No.4. The
aforesaid Sri.Ranganna and his sisters have partially
succeeded in the suit in O.S.No.92/1999.
4. The suit is partly decreed by the judgment
dated 16.11.2005 declaring that Sri.Ranganna and his
sisters (the plaintiffs) would be entitled to 7/8th share
and Sri.Kotappa's daughters (the vendors - the first to
third defendants) would be entitled to 1/8th share in the
property transferred in favour of Sri. Papanna and two
[2] other properties (suit Item nos.4 to 6). However, the
claim of Sri.Ranganna and his sisters (the plaintiffs)
insofar as the property transferred in favour of Sri.
Naganna and two [2] other properties (suit Item Nos. 1
to 3) is dismissed.
5. The original defendants impugned the civil
Court's judgment dated 16.11.2005 insofar as the
declaration of 7/8th share in suit Item Nos. 4 to 6 in
R.F.A.No.176/2006, and the original plaintiffs filed their
cross objections in R.F.A.CROB.No.39/2006 impugning
the dismissal of the suit insofar as suit Item Nos.1 to 3
properties. Sri. Papanna died on 10.11.2011 but his
legal representatives were not brought on record either
in the appeal or in the cross objection.
6. It is now undisputed that in the cross
objection, notice was not even issued either to him or
Sri. Naganna. A Division Bench of this Court has
disposed of the appeal in R.F.A.No.176/2006 as against
the deceased Sri. Naganna and Sri.Papanna as having
abated, and has allowed the Cross-Objections in
R.F.A.CROB.No.39/2006 holding that the Sri.Ranganna
and his sisters (the plaintiffs) would be entitled for 7/8th
share even in the suit item Nos. 1 to 3.
Consequentially, Sri.Ranganna and his sisters (the
plaintiffs)/ their legal representatives would be entitled
for 7/8th share even in these two properties transferred
in favour of Sri. Naganna and Sri. Papanna.
7. During the pendency of the aforesaid
appeal/cross appeal, the original plaintiffs have filed
final decree proceedings in F.D.P.No.3/2006. It is
stated on behalf of the petitioners that the original
plaintiffs did not prosecute the same because of the
pendency of the appeal and cross-objections, but with
the disposal of these proceedings by the Division Bench,
the original plaintiffs/their legal representatives have
filed the present F.D.P.No.27/2014. It is also stated
that Sri.Naganna died on 25.06.2015. The present
controversy is as regards the two properties purchased
by Sri.Nagappa and Sri.Papanna, and the controversy is
at the instance of the petitioners who claim under them.
8. Sri. Udaya Holla, the learned Senior counsel
for the petitioners, submits that the petitioners'
grievance with the impugned order holding that the final
decree proceedings is maintainable and next issuing
Commissioner's warrant is twofold:
[a] Firstly, the original plaintiffs/their legal
representatives want to rely upon the judgment in the
aforesaid Regular First Appeal and Cross Objection to
assert a share not only in the suit Item No.4 but also in
suit Item No.1 though the legal representatives of Sri.
Papanna, who had purchased Item No.4 and who had
died by the date of the disposal, were not brought on
record. The original plaintiffs/legal representatives
cannot even rely upon this judgment in the appeal and
the cross objection insofar as suit Item No.4 because it
is undisputed that Sri. Naganna is not even served with
notice of the cross objections.
[b] Secondly, the civil Court could not have
issued Commissioner's Warrant without first examining
whether the purchasers/their legal representatives (Sri.
Naganna and Sri Papanna and their legal
representatives) would be entitled for working out of
equities as against their vendors' share in the other suit
schedule properties viz., suit schedule Item Nos.2, 3, 5
and 6.
9. Sri. T.N.Raghupathy, the learned counsel for
the original plaintiffs/their legal heirs, submits that the
original plaintiffs/legal representatives would not object
to the petitioners' claim for working out of the equities
as against their vendors' share in the aforesaid
properties, but that should only be after due enquiry
with appropriate opportunity to all the concerned.
Insofar as Sri. Uday Holla's first submission, Sri.
T.N.Raghupathy submits that the petitioners, who have
not called in question the Division Bench's judgment in
the aforesaid Regular First Appeal and Cross Objection
on any ground much less sought for modification of
such judgment either because Sri. Naganna was not
served with the cross-objections or otherwise, cannot
contest the consequential decree in the final decree
proceedings.
10. It is obvious from these rival submissions
that the petitioners and the respondents who claim
under the original plaintiffs and the purchasers, do not
contest that the petitioners can seek for working out
equities as against their vendors' share in the suit
schedule Item Nos.2, 3, 5 and 6 properties, and in fact,
the civil Court could decide on the working out of such
equities only after due enquiry. This enquiry must
necessarily precede any issuance of Commissioner's
warrant. Therefore, the petitioners are entitled to
succeed insofar as their challenge to the issuance of the
Commissioner's warrant by the civil Court on
30.08.2019.
11. As regards the contention that the
petitioners' rights to the properties cannot be affected
because their predecessors-in-interest, Sri. Naganna
and Sri. Papanna, were not duly served or the respective
legal representatives were not brought on record, this
Court must observe that the petitioners can only urge
these grounds in a properly instituted proceeding and
not in the present final decree proceedings. Therefore,
the civil Court has rightly rejected the objection in this
regard. As such, there is no reason for interference with
the civil Court's finding on the maintainability of the
petition on such ground.
12. However, this Court must observe that
subject to all just exceptions in law, the petitioners,
notwithstanding the disposal of this writ petition,
should be at liberty to take appropriate recourse in law
insofar as the Division Bench's judgment and the Cross-
Objections as regards their ground that Sri. Naganna
and Sri. Papanna were not served with the notice of
Cross-objections and the respective legal representatives
were not brought on record. Therefore, the following:
ORDER
The petition is allowed in part and the
civil Court's order dated 30.08.2019 in
F.D.P.No.27/2014 is quashed and the civil
Court is called upon to hold an enquiry on
the petitioners' claim to work out equities as
against their vendors (the original
and 6 properties with due opportunity to all
the concerned.
Sd/-
JUDGE
RB
