Karnataka High Court
Nanjundaswamy vs Lakshmamma on 17 August, 2022
Bench: S Vishwajith Shetty
WP 1288/2019
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
W.P.No.1288/2019 (GM-CPC)
BETWEEN:
NANJUNDASWAMY
S/O RAJEGOWDA
AGED ABOUT 30 YEARS
R/O BHERYA VILLAGE
HOSA AGRAHARA HOBLI
K.R. NAGARA TALUK
MYSORE DISTRICT - 571 60. ... PETITIONER
(BY SRI YOGESH V KOTEMATH, ADV.)
AND:
1. LAKSHMAMMA
W/O LATE KRISHNEGOWDA
AGED ABOUT 67 YEARS.
2. B.K. JAGADESH
S/O LATE KRISHNEGOWDA
AGED ABOUT 42 YEARS.
3. K. DINESH
S/O LATE KRISHNEGOWDA
AGED ABOUT 40 YEARS
4. SHOBHA
W/O DEVARAJ
D/O LATE KRISHNEGOWDA
AGED ABOUT 38 YEARS.
5. MADHURA
D/O RAJEGOWDA
AGED ABOUT 34 YEARS
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6. VASANTHAMMA
W/O RAJEGOWDA
AGED ABOUT 50 YEARS
7. RAJEGOWDA
S/O LATE SANNAPPAGOWDA
AGED ABOUT 58 YEARS.
ALL ARE RESIDING AT
BHERYA VILLAGE, HOSA
AGRAHARA HOBLI, K.R. NAGARA
TALUK MYSORE DISTRICT - 571 601. ... RESPONDENTS
(BY SRI SYED AKBAR PASHA, ADV., FOR R-1 TO R-4;
VIDE ORDER DATED 17.10.2019 NOTICE DISPENSED
WITH FOR R-5 TO R-7)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH ORDER
VIDE ANNEXURE-G DATED 02.08.2018 PASSED BY THE
PRINCIPAL CIVIL JUDGE AND JMFC, K.R.NAGARA IN
F.D.P.NO.14/2016.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. This writ petition under Article 227 of the
Constitution of India has been filed with a prayer to quash
the order dated 02.08.2018 passed by the Principal Civil
Judge & JMFC, K.R.Nagara, in FDP.No.14/2016 vide
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Annexure-G, and also to quash the entire proceedings in
FDP.No.14/2016.
2. Heard the learned Counsel for the parties and also
perused the material on record.
3. Brief facts of the case leading to the filing of this
petition are, O.S.No.7/1991 was filed by the petitioner and
respondents 5 & 6 herein for partition and separate
possession of the joint family property. The said suit was
decreed and the plaintiffs were held entitled for 1/4th
share in the suit schedule property.
4. Land bearing Sy. No.35/1 measuring 3 acres 6
guntas was one of the items of the suit schedule property
in O.S.No.7/1991. Earlier petitioner's father Rajegowda
had sold an extent of 1 acre 23 guntas in land bearing Sy.
No.35/1 in favour of one Krishnegowda and since the said
sale was made in violation of the order of temporary
injunction in O.S.No.7/1991, the Trial Court while
decreeing the suit O.S.No.7/1991 had also held that the
sale deed executed by Rajegowda in favour of
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Krishnegowda on 14.03.1991 was null and void and not
binding on the plaintiffs in O.S.No.7/1991.
5. Krishnegowda, who is the husband of respondent
no.1 and father of respondents 2 to 4 herein had filed
O.S.No.36/1992 seeking the relief of declaration of his title
in respect of the property purchased by him from
Rajegowda under the sale deed dated 14.03.1991. The said
suit was dismissed and the judgment and decree passed in
the said suit O.S.No.36/1992 was confirmed by this Court
in R.S.A.No.1590/2009. While dismissing R.S.A.
No.1590/2009, this Court has observed that the sale deed
executed by Rajegowda and his father was valid only to the
extent of their share in the said property and it will not
bind the interest of the children of Rajegowda.
6. After the disposal of R.S.A.No.1590/2009,
respondents 1 to 4 herein who are the wife and children of
Krishnegowda have filed final decree proceedings before
the Trial Court in FDP.No.14/2016. In the said
proceedings, after entering appearance, the petitioner
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herein had filed objections contending that the final decree
proceedings was not maintainable having regard to the fact
that there was no preliminary decree in favour of
respondents 1 to 4 herein or their father late
Krishnegowda. However, the Trial Court has overruled, the
said objection and proceeded to appoint the Court
Commissioner for bifurcating the suit schedule property as
per the preliminary decree in O.S.No.7/1991. Being
aggrieved by the same, the petitioner is before this Court.
7. Learned Counsel for the petitioner submits that the
Trial Court was not justified in entertaining the final
decree proceedings instituted by respondents 1 to 4 herein
when undisputedly there is no preliminary decree passed
either in their favour or in favour of their father. He
submits that merely on the basis of the observations made
by this Court in R.S.A.No.1590/2009, the final decree
proceedings cannot be initiated as the said order is not an
executable order.
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8. Per contra, learned Counsel appearing for
respondents 1 to 4 submits that undisputedly late
Krishnegowda had purchased 1 acre 23 guntas in Sy.
No.35/1 from late Rajegowda and his father. This Court
while disposing of R.S.A.No.1590/2009 has observed that
the sale deed executed in favour of Krishnegowda would be
valid to the extent it relates to the share of late Rajegowda
and his father. He also submits that the suit in
O.S.No.7/1991 is a collusive suit, and therefore, no final
decree proceedings is initiated pursuant to the preliminary
decree passed in the said suit and this has prevented
respondents 1 to 4 herein from making any claim to their
rights in the land bearing Sy. No.35/1 pursuant to the sale
deed dated 14.03.1991. He further submits that the
Regular Second Appeal arising out of O.S.No.7/1991 is
pending before this Court in R.S.A.No.1650/2009, and
therefore, in the event this Court comes to the conclusion
that the final decree proceedings is not maintainable
before the Trial Court, he may be granted liberty to make
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necessary application to implead respondents 1 to 4 herein
in the said second appeal.
9. I have carefully appreciated the arguments addressed
by both the parties and also perused the material on
record.
10. The undisputed facts of the case are, the father of
respondents 1 to 4 herein had purchased an extent of 1
acre 23 guntas in Sy. No.35/1 which is the subject matter
of the suit in O.S.No.7/1991. Sy. No.35/1 totally
measured 3 acres 6 guntas. This Court while disposing of
R.S.A.No.1590/2009 has observed that the sale deed dated
14.03.1991 executed in favour of late Krishnegowda who is
the husband of respondent no.1 and father of respondents
2 to 4 herein would be valid to the extent of the rights of
late Rajegowda and his father in Sy. No.35/1. Respondents
1 to 4 herein or late Krishnegowda were not parties to
O.S.No.7/1991. Merely for the reason that this Court while
disposing of R.S.A.No.1590/2009 has made an observation
that the sale deed dated 14.03.1991 executed in favour of
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Krishnegowda by Rajegowda and his father would be valid
to the extent of their rights in Sy. No.35/1, it would not
entitle either Krishnegowda or his wife and children to file
final decree proceedings before the Trial Court, when
admittedly there is no preliminary decree in their favour. It
is also not in dispute that they are not parties to the
preliminary decree passed in O.S.No.7/1991. Under the
circumstances, I am of the considered view that the Trial
Court had erred in entertaining the final decree
proceedings initiated by respondents 1 to 4 herein on the
basis of the preliminary decree in O.S.No.7/1991 and on
the basis of the observations made by this Court in
R.S.A.No.1590/2009. Consequently, the order passed by
the Trial Court on 02.08.2018 in FDP.No.14/2016
appointing the Court Commissioner for the purpose of
bifurcating Item no.2 (Sy. No.35/1 of the suit schedule
property) as per the preliminary decree in O.S.No.7/1991
is also bad in law and the same cannot be sustained.
Accordingly, the following order.
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11. The writ petition is allowed. The order dated
02.08.2018 passed by the Principal Civil Judge & JMFC,
K.R.Nagar, in FDP.No.14/2016 at Annexure-G and so also
the entire proceedings in FDP.No.14/2016 pending before
the Trial Court are quashed. It is open for respondents 1 to
4 herein to initiate appropriate proceedings before the
proper forum including filing necessary application in
R.S.A.No.1650/2009 for safeguarding their rights in
property bearing Sy. No.35/1 which late Krishnegowda
had purchased under the registered sale deed dated
14.03.1991 and if such proceedings is initiated, the same
would be required to be considered in accordance with law.
Sd/-
JUDGE
KK
