Karnataka High Court
A. Y. Nagaraja Rao vs A. R. Venkateshwara Rao on 17 August, 2022
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
MISCELLANEOUS SECOND APPEAL NO.40 OF 2018
BETWEEN:
A. Y. NAGARAJA RAO
S/O. LATE R. YELLAPPA,
AGED ABOUT 74 YEARS,
R/AT DOOR NO. 173,
3RD MAIN ROAD,
P. J. EXTENSION,
DAVANAGERE-577 002.
...APPELLANT
(BY SRI GOVINDARAJU L, ADVOCATE)
AND:
A. R. VENKATESHWARA RAO
SINCE DEAD BY LRS.,
1. SMT. NAGAJYOTHI,
W/O. R. SURESH KUMAR,
D/O. A. R. VENKATESHWARA RAO,
AGED ABOUT 38 YEARS,
HOUSE WIFE,
"SRINIVASA ESTATE",
TALUK OFFICE ROAD,
OPP: SHANKARMATT,
OLD TOWN,
BHADRAVATHI-577 301.
2. SMT. NAGA VEENA
2
W/O. M. P. PANDURANGA RAO,
D/O. A.R. VENKATESHWARA RAO,
AGED ABOUT 36 YEARS,
HOUSE WIFE,
I CROSS, ASHOK NAGAR,
ARB COLONY,
SHIVAMOGGA-577 201.
A. NAGASHREE
SINCE DEAD BY LRS.,
3. D. K. HARISH,
S/O D. K. KRISHNAMURTHY,
AGED ABOUT 30 YEARS,
LORRY DRIVER,
II CROSS, II MAIN,
DURGI NAGAR,
BHADRAVATHI-577 301.
4. SRI. S. Y. AMBERKAR
S/O. LATE R. D. YALLAPPA,
AGED ABOUT 73 YEARS,
R/AT D. NO.8/1,
"ROHINI", I CROSS,
RAMAMURTHY NAGAR MAIN ROAD,
BANASAVADI,
BENGALURU -560 043.
SANTRAVE KAMALA BAI
SINCE DEAD BY LRS.,
5. SRI. S. L. ARAVINDA KUMAR,
S/O. LATE LAKSHMAN RAO,
AGED ABOUT 60 YEARS,
R/AT D. NO. N-D, 2ND FLOOR,
DCM LAYOUT,
DAVANAGERE-577 004.
3
6. SMT. VASANTHA BAI
W/O. E. NARASINGH RAO,
AGED ABOUT 83 YEARS,
C/O. EX. N. VISHWANATHA
PLOT NO.6, SL. NO. 381,
I FLOOR, SEETHA RAM NAGAR,
SAFIGUDA,
HYDERABAD-56.
7. SMT. RUKMINI BAI
W/O. B. NARAYANA RAO,
AGED ABOUT 86 YEARS,
R/AT D. NO. 143 (1), II CROSS,
NEAR GOVT. MIDDLE SCHOOL,
GANDHI BAZAAR,
Bengaluru -560 004.
8. SMT. LALITHA BAI
W/O. NAGOJI RAO E. N.,
AGED ABOUT 81 YEARS,
DRILL MASTER LINE,
AMARAVATHI,
HOSPET-583 211.
BELLARY DISTRICT.
9. SMT. KASTUR BAI
W/O. TELKAR VISHNUPATHI,
AGED ABOUT 66 YEARS,
R/AT 2ND MAIN, 14TH CROSS,
NEAR BOREWELL TANK, K.T.J. NAGAR,
DAVANAGERE-577 003.
10. SMT. G. M. TEJASWINI
W/O. DR. MADHUKAR GHANATHE,
AGED ABOUT 54 YEARS,
RMO QUARTERS,
OPP: HEGDE DIAGNOSTIC CENTER,
PAVILION ROAD,
P.J. EXTENSION,
4
DAVANAGERE-577 002.
11. SMT. DEEPA
W/O. MAHENDRAKAR,
AGED ABOUT 46 YEARS,
KHB COLONY,
SHIvaMOgGA-577 201.
12. J. N. VASUDEVA MURTHY
S/O. J. N. VENKATACHALAPATHI SETTEE,
AGED MAJOR,
PROPRIETOR,
VASU TRADERS,
D. NO.460/4, KAIPET,
DAVANAGERE-577 001.
13. B. RAMESH
S/O. LATE BHEEMAPPA,
AGED ABOUT 52 YEARS,
R/AT NO. 9,
OPP. SOUKYADA NURSING HOME,
NIJALINGAPPA LAYOUT,
DAVANAGERE-577 004.
B. SIDDESH
SINCE DEAD BY LRS.,
14. KALPANA B. P.
W/O. LATE B. SIDDESH,
AGED ABOUT 44 YEARS,
R/AT NO.9,
OPP. SOUKYADA NURSING HOME,
NIJALINGAPPA LAYOUT,
DAVANAGERE-577 004.
15. KUM. B. S. RASHMI
D/O. LATE B. SIDDESH,
AGED ABOUT 21 YEARS,
REPRESENTED BY THEIR
5
GUARDIAN AND NATURAL MOTHER,
SMT. KALPANA,
R/AT NO.9,
OPP. SOUKYADA NURSING HOME,
NIJALINGAPPA LAYOUT,
DAVANAGERE-577 004.
16. CHI. B. S. RAKSHIT
S/O. LATE B. SIDDESH,
AGED ABOUT 19 YEARS,
REPRESENTED BY HIS
GUARDIAN AND NATURAL MOTHER,
SMT. KALPANA,
R/AT NO.9,
OPP. SOUKYADA NURSING HOME,
NIJALINGAPPA LAYOUT,
DAVANAGERE-577 004.
....RESPONDENTS
(BY SRI N S BHAT, ADVOCATE FOR R1 AND 2;
R3, 14 AND 16 ARE SERVED AND UNREPRESENTED;
NOTICE TO R3, 5 TO 12 AND 15 ARE
DISPENSED WITH VIDE ORDER DATED 17.03.2021)
THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER
ORDER XLI RULE 1(U) OF THE CODE OF CIVIL PROCEDURE.,
AGAINST THE JUDGMENT AND DECREE DATED 08.12.2017
PASSED IN RA NO.24 OF 2016 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE, DAVANAGERE, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
19.12.2015 PASSED IN FINAL DECREE PROCEEDINGS NO.06 OF
2004 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE,
DAVANAGERE AND FURTHER MATTER IS REMANDED TO THE
TRIAL COURT TO RE-APPRECIATE THE EVIDENCE AND
DOCUMENTS.
IN THIS APPEAL ARGUMENTS BEING HEARD, JUDGMENT
RESERVED, COMING ON FOR "PRONOUNCEMENT OF ORDERS",
THIS DAY, THE COURT MADE THE FOLLOWING:
6
JUDGMENT
This Miscellaneous Second Appeal is filed by the
respondent No.2 in Regular Appeal No.24 of 2016 on the file of
the Principal Senior Civil Judge, Davanagere challenging the
judgment and decree dated 08th December, 2017, setting aside
the judgment and decree dated 19th December, 2015 in Final
Decree Proceedings No.6 of 2004 on the file of Principal Civil
Judge Davanagere, drawing up of the Final Decree Proceedings.
2. For the sake of convenience, the parties in this appeal
are referred to with their rank and status before the Final Decree
Proceedings.
3. The relevant facts for adjudication of this appeal are
that original plaintiff (A.R. Vekateshwara Rao) has filed Original
Suit No.1073 of 1989 before the Additional Munsiff Court,
Davanagere seeking partition and separate possession in respect
of the suit schedule properties and the said suit came to be
decreed, holding that the parties to the suit are entitled for one-
eighth share in item No.1 and 10/90th share in item No.2 of the
petition schedule properties. In the meanwhile, some of the
parties to the suit have alienated the suit schedule property.
Being aggrieved by the same, the purchasers of the schedule
properties have filed Regular Appeal No.77 of 1994 and Regular
appeal No.81 of 1994 (A.Y. Lakshman Rao and A.Y. Nagaraja
Rao-appellant herein) and the Appellate Court modified the
share of the parties. Thereafter, plaintiffs have filed Final Decree
Proceedings No.6 of 2004 before the trial Court praying for
partition by appointing a competent person to execute the
decree. In the Final Decree Proceedings, Commissioner was
appointed to divide the property and as such, the report of the
Commissioner was filed before the said proceedings. The Court
commissioner, in his report observed that the residential
property is indivisible and as such decided to value the property
on the basis of the report of the Sub-Registrar and as such the
property was valued at Rs.71,00,000/. Pursuant to the same,
the FDP Court offered the property for purchase among the
members of the family, whereby the appellant herein offered to
buy the property and considering the same the Final Decree
Proceedings were drawn up holding that the appellant herein is
intending to purchase the share of other sharers by depositing
the amount of Rs.55,86,695/-. In the meanwhile, the
purchasers of the undivided shares of A.Y. Ramachandra Rao
and Swamy Y. Amberker, preferred Regular Appeal No.24 of
2015 before the First Appellate Court challenging the order dated
19th December, 2015. The First Appellate Court, after
considering the material on record, by its judgment and order
dated 08th December, 2017,allowed the appeal and as such, set
aside the judgment and decree dated 19th December, 2015 in
Final Decree Proceedings No.6 of 2004 and as such remanded
the matter to the trial Court to re-appreciate the evidence and
documents afresh. Feeling aggrieved by the same, the
respondent No.2 in FDP has preferred this appeal.
4. This Court, by order dated 17th March, 2021 formulated
the following substantial question of law:
"Whether the trial Court having directed sale of
the schedule properties inter-se between the parties
could have set aside the Commissioner's report which
was mutually accepted by the parties?"
5. Heard Sri Govindaraju L, learned counsel for the
appellant and Sri N.S. Bhat, learned Counsel for respondents 1
and 2.
6. Sri Govindaraju L, learned counsel for the appellant
argued that the appellants in RA No.24 of 2016 are strangers,
claiming to be the purchasers of undivided shares owned by A.Y.
Ramachandra Rao and Swamy Y. Amberkar respectively, and
they are not members of the family, and as such, the purchasers
had no right to claim partition by metes and bounds in the
residential property of the joint family and accordingly, he
submitted that the impugned judgment and order passed by the
First Appellate Court requires to be interfered with in this appeal.
7. Sri N.S. Bhat, learned counsel appearing for the
respondents supports the impugned order.
8. In the light of the submission made by the learned
counsel appearing for the parties, I have carefully examined the
finding recorded by the courts below. Final Decree Proceedings
No.6 of 2004 is arising out of the judgment and decree dated
08th April, 1994 in Original Suit No.1073 of 1989, whereby the
trial Court has held that the parties to the suit are entitled for
one-eighth share in item No.1 and 10/90th share in item No.2 of
the petition schedule properties. Thereafter, Regular Appeal
No.77 of 1994 and Regular Appeal No.81 of 1994 were filed
before the First Appellate Court, whereby the First Appellate
Court modified the judgment and decree of the trial Court.
Thereafter, Final Decree Proceedings No.6 of 2004 was filed
before the trial Court, seeking division of property as per
preliminary decree. In the said proceedings, Court
Commissioner was appointed to execute the preliminary decree
and the Court Commissioner opined that the properties are
indivisible and as such decided to value the property on basis of
the Report of the Sub-Registrar and as such, the properties were
valued at Rs.71,00,000/-. The trial Court offered the property
for sale in favour of the parties to the proceedings and pursuant
to the same, the appellant herein offered to buy the schedule
properties for sum of Rs.55,86,695/- and accordingly, the trial
Court passed the order dated 19th December, 2015. On careful
examination of the order dated 19th December, 2015, the trial
Court, rightly passed the order based on the report of the Court
Commissioner and as such allotted the entire properties in
favour of the appellant herein having deposited the amount of
Rs.55,86,695/-. Undisputably, the appellants in Regular Appeal
No.24 of 2016 are not parties in Original Suit No.1073 of 1989.
In that view of the matter, the judgment and order dated 08th
December, 2017 passed by the First Appellate Court is incorrect
and further the First Appellate Court, on wrong notion of facts,
remanded the matter to the trial Court for fresh disposal. The
Final Decree Proceedings Court, having come to the conclusion
that the division of the property is not feasible and as such,
appointed the Court commissioner and in terms of the report of
the Court Commissioner as well as the report of the Sub-
Registrar, fixed the sale of property for sum of Rs.71,00,000/-
and as the appellant herein offered to purchase the schedule
property for Rs.55,86,695/-, gave primacy to the one of the
members of the joint family of original propositus-Yellappa. In
that view of the matter, the First Appellate Court has committed
an error in remanding the matter to the trial Court for fresh
consideration by setting aside the same, knowing fully well that
the trial Court has directed the sale of schedule properties inter-
se between the parties based on the Court Commissioner report
and therefore, the finding recorded by the First Appellate Court
is contrary to law and same is required to interfered with in this
appeal and as such, the substantial question of law framed
above, favours the appellant herein. In the result, I pass the
following:
ORDER
(1) Miscellaneous Second Appeal allowed;
(2) Judgment and Order dated 08.12.2017 passed
in Regular Appeal No.24 of 2016 on the file of
the Principal Senior Civil Judge and
Davanagere is set aside;
(3) Judgment and decree dated 19.12.2015
passed in FDP No.6 of 2004 on the file of the
Principal Civil Judge, Davanagere is confirmed.
Sd/-
JUDGE
lnn
