Karnataka High Court
Chandrayya S/O Malakayya ... vs Nirmala W/O Kashinath Wali on 7 April, 2022
Bench: H.T.Narendra Prasad, Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF APRIL 2022
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
R.F.A.No.100128/2016 (PAR)
BETWEEN:
1. CHANDRAYYA S/O MALAKAYYA PACHANAKATTIMATH
AGED 80 YEARS, OCC: AGRICULTURE
R/O: LOKAPUR, TALUK: MUDHOL
PRESENTLY RESIDING AT SARASWATI NAGAR, RAMDURG
DISTRICT: BAGALKOT
2. SANGAYYA S/O MALAKAYYA PACHANAKATTIMATH
AGED 54 YEARS, OCC: AGRICULTURE
R/O: LOKAPUR, TALUK: MUDHOL
PRESENTLY RESIDING AT
SARASWATI NAGAR, RAMDURG
DISTRICT: BAGALKOT.
.. APPELLANTS
(BY SRI.MALLIKARJUNSWAMY B.HIREMATH, ADV.)
AND:
1. NIRMALA W/O KASHINATH WALI
SINCE DEAD BY HER LRS
1A) KASHINATH S/O SIDDARAMESHWAR WALI
AGED 68 YEARS, OCC: RTD MEDICAL PRACTITIONER
R/O: H.NO: 89, 2ND CROSS, AISHWARYA ROYAL LAYOUT,
BEHIND CHRIST SCHOOL
RAJARAJESHWARI NAGAR, BOGADI
MYSURU-570026
2
1B . SHRI DEEPAK S/O KASHINATH WALI
AGED 36 YEARS
OCC: SOFTWARE PROFESSION
R/O: H.NO: 89, 2ND CROSS, AISHWARYA ROYAL LAYOUT,
BEHIND CHRIST SCHOOL
RAJARAJESHWARI NAGAR, BOGADI
MYSURU-570026
1C . SHRI NAVEEN S/O KASHINATH WALI
AGED 34 YEARS
OCC: SOFTWARE PROFESSION
R/O: H.NO: 89, 2ND CROSS, AISHWARYA ROYAL LAYOUT,
BEHIND CHRIST SCHOOL
RAJARAJESHWARI NAGAR, BOGADI
MYSURU-570026
2. SHANKAR S/O BASAWANEPPA SOBARAD
SINCE DECEASED BY HIS LRS
2A . SHAKUNTALA W/O SHANKAR SOBARAD
AGED 61 YEARS
OCC: HOUSEHOLD
R/O: SHIVATEERTH NAGAR, KANBARGI ROAD, BELGAVI
2B . SMT. RAJESHWARI @ MONIKA W/O SHAILENDRA MACHA
AGED 45 YEARS, OCC: HOSUEHOLD WORK
R/O: YASHREE APARTMENT, FLAT NO.302, SY NO. 22/84,
BALAJI NAGAR, DHAKWADI, PUNE-43
STATE MAHARASHTRA
2C . SHRI JAYAPRAKASH @ SUDHIR S/O SHANKAR SOBARAD
AGED 43 YEARS, OCC: BUSINESS
R/O: SHIVATEERTH NAGAR, KANABARGI ROAD, BELGAVI
2D . SHRI SHIVANAND S/O SHANKAR SOBARAD
AGED 41 YEARS, OCC: BUSINESS
R/O: SHIVATEERTH NAGAR, KANABARGI ROAD, BELGAVI
3. SMT. SHANTA W/O CHANABASAPPA BALI
SINCE DECEASED BY HER LRS
3A . SHRI ARUN S/O CHANABASAPPA BALI
AGED 55 YEARS, OCC: SERVICE
R/O: PLOT NO. 1864, SECTOR NO.10, BEHIND KNF,
ANJANEYA NAGAR, BELGAVI
3
3B . SHRI DAYANAND S/O CHANABASAPPA BALI
AGED 53 YEARS, OCC: BANK SERVICE
R/O: PLOT NO. 1864, SECTOR NO.10, BEHIND KNF,
ANJANEYA NAGAR, BELGAVI
4. SMT KUSUMA W/O HEMCHANDRA AKKI
SINCE DECEASED BY LRS
4A . SMT. BEENA NAGRAJ
AGED 48 YEARS, OCC: HOUSE WIFE
R/O: E and F BLOCK
RAMAKRISHNA NAGAR,
MYSURU-570022
4B . MALA D/O KUSUMA AKKI
AGED 43 YEARS, OCC: HOUSE WIFE
R/O: E and F BLOCK
RAMAKRISHNA NAGAR,
MYSURU-570022
4C . GEETA AKKI
AGED 42 YEARS
OCC: HOUSE WIFE
R/O: E and F BLOCK
RAMAKRISHNA NAGAR,
MYSURU-570022
5. SMT. PREMA W/O SUBASHA
@ JAYAPRAKASH SOBARAD
AGED 40 YEARS, OCC: HOUSEHOLD WORK
R/O: PLOT NO. 1875,BEHIND MAL MARUTI TEMPLE,
M M EXTENSION, BELGAVI
6. RAJENDRA S/O SUBHASH
@ JAYAPRAKASH SOBARAD
AGED 43 YEARS, OCC: BUSINESS
R/O: PLOT NO. 1875,BEHIND MAL MARUTI TEMPLE,
M M EXTENSION, BELGAVI
7. KUM. ASHA D/O SUBHASH
@ JAYAPRAKASH SOBARAD
AGED 41 YEARS, OCC: HOUSEHOLD WORK
R/O: PLOT NO. 1875,BEHIND MAL MARUTI TEMPLE,
M M EXTENSION, BELGAVI
4
8. SMT. INDUMATI W/O MOHAN SOBARAD
AGED NOT KNOWN
OCC: HOUSEHOLD WORK
R/O: PLOT NO. 1875,BEHIND MAL MARUTI TEMPLE,
M M EXTENSION, BELGAVI
9. BASAVARAJ S/O MOHAN SOBARAD
AGED 35 YEARS
R/O: PLOT NO. 1875,BEHIND MAL MARUTI TEMPLE,
M M EXTENSION, BELGAVI
10 . KUM. JYOTI D/O MOHAN SOBARAD
AGED 38 YEARS
R/O: PLOT NO. 1875,BEHIND MAL MARUTI TEMPLE,
M M EXTENSION, BELGAVI
NOW RESIDING AT
NO. 1988, SECTOR NO.9
M M EXTENSION, BELGAVI
11 . KUM ARATI D/O MOHAN SOBARAD
AGED 30 YEARS
R/O: PLOT NO. 1875,BEHIND MAL MARUTI TEMPLE,
M M EXTENSION, BELGAVI
PRESENTLY RESIDING AT SAMBRANI
TALUK: HALIYAL, DISTRICT: BELGAVI
.. RESPONDENTS
(BY SRI.SHIVARAJ S.BALLOLI, ADV. FOR R1(A-C),
R2(A-D) SERVED; APPEAL AGAINST R3(A) DISMISSED;
APPEAL AGAINST R11 DISMISSED AS NOT PRESSED;
R3(B), R5, R6, R7, R8, R9 & R10 SERVED;
NOTICE TO R4(A-C) & R2(B) IS DISPENSED WITH)
THIS APPEAL IS FILED UNDER ORDER XLI RU1 R/W SECTION
96 OF CPC SEEKING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 03.10.2009 PASSED BY THE III ADDITIONAL CIVIL JUDGE
(SR.DN.) & ADDL. MACT, BELAGAVI AT BELAGAVI IN
O.S.NO.103/1994 AND CONSEQUENTLY DISMISS THE SUIT
INSOFAR AS ITEM NO.5 TO 20 ARE CONCERNED.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
RAJENDRA BADAMIKAR, J. DELIVERED THE FOLLOWING:
5
JUDGMENT
This appeal is filed under Order XLI Rule 1 r/w
Section 96 of CPC by the appellants with leave of the
court to challenge the judgment and decree dated
03.10.2009 passed by the III Additional Civil Judge
(Sr.Dn.) and Additional MACT, Belagavi in
O.S.No.103/1994 whereby the learned Senior Civil Judge
has decreed the suit filed by the plaintiff/respondent No.1
herein for partition and separate possession.
2. For the sake of convenience, parties shall be
referred with the original ranks occupied by them before
the trial court.
3. Brief factual matrix leading to the case are
that, plaintiff has filed a suit in O.S.No.103/1994 seeking
her 1/6th share in the suit schedule properties on the
ground that suit schedule properties are joint family
properties and she is having share in the said suit
schedule properties. During the pendency of the suit,
defendant No.1 who is the brother of the plaintiff died
and suit was dismissed for not taking any steps against
him. Apart from that, defendant No.2 who was sister of
the plaintiff also died during the pendency of the suit and
since no steps were taken for bringing the legal
representatives of deceased defendant No.2, the suit
against defendant No.2 also came to be dismissed as
abated. Hence, it is evident that defendant Nos.1 and 2
were coparceners and though suit was dismissed against
them without bringing the legal heirs, the trial court
proceeded with the matter and finally decreed the suit by
granting 1/6th share in favour of plaintiff/respondent No.1
herein.
4. The present appellants were not parties in the
suit and defendant No.1 has availed loan from the Bank
of Maharashtra by mortgaging the suit schedule
properties at item Nos.5 to 20 prior to 1982 and as he
failed to repay the loan amount, O.S.No.110/1982 came
to be filed by the bank. The said suit came to be decreed
against defendant No.1 and execution petition
No.273/1994 was filed. In the execution petition,
defendant No.1 with the leave of the court alienated suit
schedule item Nos.5 to 20 to the present appellants and
the bank loan was cleared and as such, execution
petition came to be closed in view of discharge of loan.
However, when the suit in O.S.No.103/1994 was filed by
the plaintiff, none of these facts were pleaded and suit
came to be decreed.
5. When the final decree proceedings were filed,
the notice was issued to the present appellants and they
obtained certified copy of the preliminary decree in
O.S.No.103/1994 and approached this court by filing this
appeal. They have also sought leave of the court and the
leave was accordingly granted.
6. Learned counsel for the appellants would
contend that suit against defendant Nos.1 and 2 who are
coparceners being dismissed, the trial court ought to
have dismissed the suit in its entirety, but the trial court
has erroneously proceeded in the absence of coparceners
and decreed the suit by awarding 1/6th share in favour of
the dead persons. He would contend that appellants have
purchased the suit schedule properties when defendant
No.1 with the leave of the court has alienated the suit
properties and as such, they claim to be the bonafide
purchasers and they have been kept under darkness
during the earlier proceedings. As such, he would seek
for allowing the appeal by setting aside the impugned
judgment and decree insofar as it relates to item Nos.5
to 20.
7. Per contra, learned counsel appearing for the
respondents would support the impugned judgment. He
would contend that though two coparceners died and the
share was allotted to them to the extent of 1/6th share
each and it did not prejudice the rights of legal
representatives. Hence, he would seek for dismissal of
the appeal.
8. We have heard the learned counsel appearing
for the appellants as well as learned counsel for the
respondents at length and perused the records. Now the
following point would arise for our consideration:
"Whether the judgment and decree passed
by the trial court is erroneous and perverse so as
to call for any interference by this court?"
9. It is evident from the records that plaintiff has
filed O.S.No.103/1994 for partition and separate
possession of her 1/6th share. Defendant No.1 is the
brother of the plaintiff and defendant No.2 is the sister of
the plaintiff. Suit against defendant Nos.1 and 2 came to
be dismissed for non-taking proper steps. It is also an
admitted fact that against dismissal order passed against
defendant No.1, the plaintiff has approached the District
court by filing regular appeal in R.A.No.1014/2009 on the
file of the V Additional District and Sessions Judge,
Belagavi and the said appeal also came to be dismissed
by confirming the dismissal order passed against
defendant No.1. Under such circumstances, when the
dismissal order as against defendant No.1 stands
confirmed, the trial court could not have proceeded with
the matter on merits and that too when defendant No.2
who is one of the coparcener also died and the case
against her is abated. The trial court erroneously
proceeded with trial of the matter in the absence of
necessary parties. The trial court ought to have given an
opportunity to the plaintiff to implead necessary parties,
and without exercising the said option, the trial court was
to dismiss the suit in its entirety. However, the records
disclose that in the absence of two coparceners
defendant Nos.1 and 2, the trial court proceeded to
decree the suit and the entire approach of the trial court
is erroneous.
10. Learned counsel for the respondents would
contend that the matter may be remanded by exercising
power under Order XLI Rule 33 of CPC, but the said
provision cannot be exercised as question of granting
leave to the plaintiff to bring the legal heirs of defendant
No.1 or defendant No.2 cannot be granted and that has
reached finality in R.A.No.1014/2009 and the said order
is not challenged in any court of law. Further, no cross-
objection were also filed by the plaintiff or other
defendants. Under such circumstances, the trial court has
failed to consider any of these aspects and plaintiff has
failed to implead the purchasers of the suit schedule
properties and even she has not impleaded the bank to
which suit properties were mortgaged and this approach
of the plaintiff cannot be appreciated. Hence, it is evident
that there was an attempt to play fraud on the court as
well as on bank and plaintiff cannot succeed by such
wrong method in getting a decree. The person who
approaches the court is required to approach the court
with clean hands and his conduct should be blemishless
throughout. But in the instant case, things speak
different story. The judgment and decree passed by the
trial court affects the right of purchasers and the
mortgage was prior to 1982 itself and it is evident that
sale was executed in favour of the appellants with the
leave of the court in E.P.No.273/1994. Under these
circumstances, the appellants ought to have been
impleaded as necessary parties and that was also not
done. Hence, the trial court without considering any of
these aspects in a mechanical way decreed the suit which
has resulted in miscarriage of justice against the present
appellants. Hence, the judgment and decree passed by
the trial court does not stand for the judicial scrutiny and
it is perverse and arbitrary. As such, it calls for
interference by this court and the appeal needs to be
allowed. Accordingly, we answer the point under
consideration in the affirmative and proceed to pass the
following:
ORDER
The appeal is allowed.
The judgment and decree dated 03.10.2009 passed
by the III Additional Civil Judge (Sr.Dn.) and Additional
MACT, Belagavi in O.S.No.103/1994 is set aside. The suit
of the plaintiff stands dismissed.
However, the plaintiff and other defendants are at
liberty to workout their remedy for partition in respect of
other joint family properties at Sl.Nos.1 to 4 and 21 to
23.
In view of disposal of the appeal, all pending I.A's
do not survive for consideration and the same are
dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
MBS/-
