Gangadhar Mallikarjun Channi vs Aruna Kotturobasappa Akki
2022 Latest Caselaw 1725 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 4TH DAY OF FEBRUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                  MSA NO.100093/2015 (R.O)
                            C/W
                  MSA NO.100031/2014 (R.O)

IN MSA NO 100093 OF 2015

BETWEEN

SMT. SHARADA
W/O. BASAVARAJ SHETTAR
AGE: 60 YEARS,
OCC: HOUSEHOLD WORK
R/O. ILKAL NEAR VETARINARY HOSPITAL
WARD NO.4, ILKAL, TQ:HUNGUND
DIST: BAGALKOT.
                                               ...APPELLANT

(BY SRI. S B HEBBALLI, ADV., AND
SRI. S. C. HIREMATH, ADV.,)

AND
1.    ARUNA KOTTUROBASAPPA AKKI
      AGE: 59 YEARS,
      OCC: MEDICAL PRACTITIONER,
      R/O. ILAKAL, TQ: HUNAGUND
      DIST: BAGALKOT

2.    KOTTUROBASAPPA
      S/O. VEERAPPA AKKI
      AGE: 65 YEARS,
      OCC: MEDICAL PRACTITIONER,
      R/O. ILAKAL, TQ: HUNAGUND,
      DIST: BAGALKOT
                               2




3.   GANGADHAR MALLIKARJUN CHANNI
     AGE: 57 YEARS,
     OCC: BUSINESS,
     R/O. BEHIND GRAM CHAVADI
     WARD NO. 2, ILAKAL
     TQ:HUNAGUND, DIST: BAGALKOT

4.   SHAKUNTALA
     W/O. CHANDRASHEKHAR CHANNI
     AGE: 52 YEARS,
     OCC: HOUSEHOLD WORK,
     R/O. ILAKAL, NEAR VETARINARY HOSPITAL,
     WARD NO.4, ILKAL,
     TQ:HUNAGUND, DIST: BAGALKOT

5.   MALLAPPA
     S/O. CHANDRASHEKHAR CHANNI,
     AGE: 36 YEARS,
     OCC: HOUSEHOLD WORK
     R/O. ILAKAL, NEAR VETARINARY HOSPITAL,
     WARD NO.4, ILKAL,
     TQ:HUNAGUND, DIST: BAGALKOT

6.   RAKSHITA D/O. CHANDRASHEKHAR CHANNI
     AGE: 27 YEARS,
     OCC: HOUSEHOLD WORK
     R/O. ILAKAL, NEAR VETARINARY HOSPITAL,
     WARD NO.4, ILKAL,
     TQ:HUNAGUND, DIST: BAGALKOT.
                                              ...RESPONDENTS

(BY SRI.SUNIL S DESAI, ADV., FOR R1 AND R2;
R3 AND R4 - NOTICE SERVED;
R5 AND R6 - NOTICE DISPENSED)

     THIS MSA IS FILED UNDER ORDER XLIII RULE 1(U) OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 16.12.2013 PASSED
IN R.A.NO.8/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HUNGUND, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 26.07.2012 PASSED IN FDP
                               3




NO.2/2005, ON THE FILE OF THE SENIOR CIVIL JUDGE, HUNGUND,
PARTLY ALLOWING THE PETITION AND RESPONDENT NO.3 EACH
ARE ENTITLED FOR SEPARATE POSSESSION OF THEIR 1/3RD SHARE
AND RESPONDENT NO.2(A) TO (C) TOGETHER ARE ENTITLED FOR
SEPARATE POSSESSION OF THEIR 1/3RD SHARE.


IN MSA NO 100031 OF 2014

BETWEEN
GANGADHAR MALLIKARJUN CHANNI
AGE: 55 YEARS, OCC: BUSINESS,
R/O: BEHIND GRAM CHAVADI,
WARD NO.2, ILAKAL, TQ: HUNAGUND,
DIST: BAGTALKOT.
                                              ...APPELLANT

(BY SRI. J S SHETTY, ADV.,)

AND
1.    ARUNA KOTTUROBASAPPA AKKI
      AGE: 59 YEARS,
      OCC: MEDICAL PRACTITIONER,
      R/O: ILKAL,
      TQ: HUNAGUND,
      DIST: BAGALKOT.

2.    KOTTUROBASAPPA
      S/O VEERAPPA AKKI,
      AGE: 65 YEARS,
      OCC: MEDICAL PRACTITIONER,
      R/O: ILKAL, TQ: HUNAGUND,
      DIST: BAGALKOT.

3.    SMT. SHANKUTALA
      W/O CHANDRASHEKAR CHENNI
      AGE: 51 YEARS,
      OCC: HOUSE HOLD,
      R/O: ILKAL, NEAR VETERINARY HOSPITAL,
      WARD NO.4, ILAKAL, DIST:BAGALKOT.
                              4




4.   MALLAPPA CHANDRASHEKHAR CHENNI
     AGE: 35 YEARS, OCC: BUSINESS,
     R/O: ILKAL, NEAR VETERINARY HOSPITAL,
     WARD NO.4, ILAKAL,
     DIST:BAGALKOT.

5.   RAKSHITA
     D/O CHANDRASHEKHAR CHENNI
     AGE: 26 YEARS,
     OCC: HOUSE HOLD,
     R/O: ILKAL, NEAR VETERINARY HOSPITAL,
     WARD NO.4, ILAKAL,
     DIST:BAGALKOT.

6.   SMT. SHARADA
     W/O BASAVARAJ SHETTAR
     AGE: 59 YEARS,
     OCC: HOUSE HOLD,
     R/O: ILKAL, NEAR VETERINARY HOSPITAL,
     WARD NO.4, ILAKAL,
     DIST:BAGALKOT.
                                             ...RESPONDENTS

(BY SRI. SUNIL S DESAI, ADV., FOR R1;
R2- NOTICE SERVED, R3, R4 AND R5 - HELD SUFFICIENT)

     THIS MSA IS FILED UNDER ORDER XLIII RULE 1(U) OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 16.12.2013 PASSED
IN R.A.NO.8/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HUNGUND, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 01.08.2012 PASSED IN FDP
NO.2/2005, ON THE FILE OF THE SENIOR CIVIL JUDGE, HUNGUND.


     THESE APPEALS COMING ON FOR ADMISSSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                     5




                            JUDGMENT

These two captioned second appeals are filed by

plaintiff and defendant No.3 in O.S.No.188/1998. For

better understanding and effective adjudication of the

controversy between the parties, I feel it necessary to

cull out genealogical tree of the family, which is as under:

Mallikarjun

Kalavathi (1st def)

Chandrashekhar Sharada Gangadhar (2nd deft) (3rd deft) (plaintiff)

2. The appellant in MSA No.100031/2014 filed a

suit for partition and separate possession in

O.S.No.188/1998 and the appellant in MSA

No.100093/2015, who is sister of plaintiff was arrayed as

defendant No.3. The suit was contested by defendant

No.2-Chandrashekhar. The Trial Court having examined

the rival contentions negatived the contentions of plaintiff

and defendant No.3 insofar as building situated in CTS

No.4496 of Ilakal Town. The Trial Court held that the

building situated in CTS No.4496 is self-acquired property

of defendant No.2. It would be relevant for this Court to

cull out paragraph 17 and the operative portion of the

preliminary decree passed in O.S.No.188/1998, which

would have direct bearing on the controversy between

the parties and the same would also throw sufficient light

as to how the present appellants in both the

miscellaneous second appeals have mislead the FDP

Court in FDP No.2/2005 and by securing modification of

preliminary decree have virtually inflicted irreparable loss

on the purchasers i.e. appellants in R.A.No.8/2013. The

said paragraph 17 and operative portion reads as under:

"17. Issue No.3:- In view of my answer to issue No.1 and 2 in the affirmative, I hold that, the plaintiff and defendants 1 and 2 get 5/16th share each, in all the suit properties except the building constructed in

CTS No.4496 of Ilkal town, as I have held that, the open space in CTS No.4496 is joint family property of plaintiff and of the defendants, and that, the building constructed on the plot of CTS No.4496 of Ilkal town is self acquired property of defendant-2.

With this observation, I hold issue No.3 also, in the affirmative.

18. Issue No.4: in view of the forgoing reasons and in the result, I proceed to pass the following:

ORDER

Suit of the plaintiff is decreed.

Plaintiff and defendants 1 and 2 are entitled to 5/16th share each in CTS No.3449/B, and CTS No.1739 of Ilkal town and in open space of CTS No.4496 of Ilkal town and that, defendant-3 is entitled to 1/16th share in all the above said properties. However it is made clear that, for the sake of convenience, an open space of CTS No.4496 measuring 398.83 Sq.Mtrs be allotted to the share of defendant-2, as defendant-2 has already constructed a building in the said CTS No.4496 of Ilkal town.

The defendants are directed to give the share of the plaintiff, within 3 months from the date of the

decree, failing which, the plaintiff can obtain his share in the suit properties by taking recourse to law.

Parties are directed to bear their respective costs. Draw up the preliminary decree accordingly."

3. If the operative portion of the preliminary

decree drawn in O.S.No.188/1998 is taken into

consideration, there should have been no further

litigation insofar as building situated in CTS No.4496 is

concerned. The appellant in MSA No.100031/2014 who is

the plaintiff in O.S.No.188/1998 initiated final decree

proceedings in FDP No.2/2005. In FDP No.2/2005, the

plaintiff has consciously not impleaded the purchasers,

who are claiming title under defendant No.2-

Chandrashekhar, who sold the building along with open

space situated in CTS No.4496. In FDP No.2/2005, both

the appellants herein have reported death of Kalavathi

i.e. their mother and on account of death of Kalavathi,

the preliminary decree was again modified and therefore,

preliminary decree is drawn in FDP No.2/2005 on

26.07.2012. It is this preliminary decree, which has

created all further litigations, which was already put to

rest by the trial Court, which is culled out by me in the

preceding paragraphs. Based on this modified preliminary

decree, the FDP Court has effected partition in FDP

No.2/2005. A copy of the said proceedings are also

placed on record by the counsel appearing for the

purchasers. It would be relevant to cull out operative

portion of the order, which reads as under:

ORDER

The petition is partly allowed. The petitioner and respondent No.3 each are entitled for separate possession of their 1/3rd share and respondent No.2(a) to (c) together are entitled for separate possession of their 1/3rd share.

The petitioner is entitled for separate possession of Part-I which was specifically mentioned as "A" in CTS No.3449/B in the Ground and 1st floor.

The respondent No.2(a) to (c) together are entitled for separate possession of Part-II of which was specifically mentioned as "B" in CTS No.3449/B in the Ground and 1st Floor.

The respondent No.3 is entitled for separate possession of Part-III of which as specifically mentioned as "C" in CTS No.3449/B in the Ground and 1st Floor.

The petitioner is entitled for separate possession of Part-I which was specifically mentioned as "A" in CTS No.4996 i.e., in the vacant site.

The respondent No.2(a) to (c) together are entitled for separate possession of Part-II of which was specifically mentioned as "B" in CTS No.4496 i.e., in the vacant site.

The respondent No.3 is entitled for separate possession of Part-III of which was specifically mentioned as "C" in CTS No. 4496 i.e., in the vacant site.

The petitioner is entitled for separate possession of Part-I which was specifically

mentioned as "A" in CTS No.1739 i.e., in the shop.

The respondent No.2(a) to (c) together are entitled for separate possession of Part-II of which was specifically mentioned as "B" in CTS No.1739 i.e., in the shop.

The respondent No.3 is entitled for separate possession of Part-II of which was specifically mentioned as "C" in CTS No.1739 i.e., in the shop.

The above said properties are situated at Ilkal, Hungund Taluk.

The hand sketch map and report submitted by the court commissioner is part and parcel of the final decree.

Parties to bear their own costs.

Draw final decree accordingly.

4. In terms of final decree drawn by the FDP

Court in FDP No.2/2005, the property i.e. building

situated in CTS No.4496, which was already held as self-

acquired property in the preliminary decree drawn on

15.10.2001, is again made subject matter of final decree

proceedings in FDP No.2/2005. At this stage, it would be

relevant to take note of the fact that preliminary decree

passed on 15.10.2001 in O.S.No.188/1998 has attained

finality. Neither plaintiff nor defendant No.3 has

challenged the preliminary decree passed on 15.10.2001

in O.S.No.188/1998. On the contrary, it was the vendor

and purchasers i.e. defendant No.2, who preferred an

appeal in R.A.No.79/2001 since it was his case that the

abutting open space attached to the building situated in

CTS No.4496 was also his self-acquired property,

however the said contention was negatived by the

Appellate Court and the appeal was dismissed.

5. The purchasers, feeling aggrieved by the final

decree drawn in FDP No.2/2005 have challenged before

the Appellate Court in R.A.No.8/2013. The Appellate

Court having taken note of all the significant details has

rightly come to the conclusion that the building situated

in CTS No.4496 was already held to be self-acquired

property of defendant No.2, under whom the present

respondents 1 and 2, who are appellants in

R.A.No.8/2013, have purchased it under registered sale

deed for valuable consideration. The Appellate Court was

of the view that the preliminary decree dated 15.10.2001

holding that defendant No.2 is absolute owner of building

situated in CTS No.4496 has attained finality and

therefore, the FDP Court had no jurisdiction to examine

the feasibility of the partition insofar as building situated

in CTS No.4496. It is in this background that the

Appellate Court was of the view that final decree drawn in

FDP No.2/2005 allotting 1/3rd share each to plaintiff,

defendant No.3 and the legal heirs of deceased No.2 in

building situated in CTS No.4496 is erroneous. There is a

categorical finding recorded by the Appellate Court that

there is no mistake on the part of FDP Court, but it is on

the part of present appellants herein. The Appellate Court

has also observed that even the counsels on record were

under bounden duty to bring true facts to the notice of

the FDP Court. Therefore, the Appellate Court was of the

view that the final decree drawn in FDP No.2/2005 insofar

as building situated in CTS No.4496 is palpably erroneous

and therefore, has prayed to remand the matter.

6. Learned counsel Sri. S.B. Hebballi, appearing

for appellant in MSA No.100093/2015 would vehemently

argue and contend before this Court that the preliminary

decree was modified on 26.07.2012 in FDP No.2/2005

and therefore, the present respondents 1 and 2, who

claim that they have purchased CTS No.4496 from

defendant No.2 are not at all necessary party and they

have no locus-standi to challenge the decree drawn in

FDP No.2/2005. He would also submit to this Court that

since preliminary decree dated 26.07.2012 has attained

finality and the final decree drawn in FDP No.2/2005 is in

terms of the preliminary decree modified by the FDP

Court and therefore, Appellate Court ought to have

rightly dismissed the appeal filed by respondents 1 and 2,

purchasers.

7. Learned Counsel Sri. J. S. Shetty, arguing in

the same vein, would however bring to the notice of this

Court few additional facts apart from what is already

brought to the notice by Sri. S. B. Hebbali appearing for

appellant in MSA No.100031/2014. He would submit to

this Court that in FDP No.2/2005, there was status-quo

order against defendant No.2, which was passed on

25.01.2005 and therefore, defendant No.2 could not have

created encumbrance on the building and open space and

therefore, the society where the defendant No.2 has

raised loan could not have auctioned the building situated

in CTS No.4496 as well as abutting open space, which

was already held to be an ancestral property by the

Court. He would further submit to this Court that

respondents 1 and 2-purchasers are auction purchasers

and therefore, their rights are subject to the result of

proceedings in FDP No.2/2005. Since the FDP Court has

modified the preliminary decree on 26.07.2012 and

consequently 1/3rd share each is allotted to plaintiff,

defendant No.3 and the legal heirs of defendant No.2, the

respondents 1 and 2-purcahsers have no semblance of

right and title and since they have purchased building in

CTS No.4496 in violation of status quo order, no right and

title would pass on respondents 1 and 2.

8. Heard the learned counsel appearing for the

appellants in both the appeals and the learned counsel

appearing for respondents 1 and 2-purchasers.

9. I have culled out the operative portion of the

first preliminary decree in O.S.No.188/1998. The

operative portion would clinch the issue insofar as

building situated in CTS No.4496 is concerned. The Court

has recorded a categorical finding that building situated

in CTS No.4496 is self-acquired property of defendant

No.2. This decree has attained finality and nobody has

questioned the preliminary decree dated 15.10.2001 and

therefore, the adjudication of rights insofar as building

situated in CTS No.4496 is concerned, it has attained

finality and the Trial Court has held that it is self-acquired

property of defendant No.2. On perusal of the operative

portion of the decree passed in O.S.No.188/1998 would

also indicate that the Trial Court has also categorically

held that the open space attached to CTS No.4496

measuring 398.03 sq. mtrs has to be allotted to the share

of defendant No.2. Therefore, the appellant in MSA

No.100031/2014, who is the plaintiff, having not

challenged the first preliminary decree dated 15.10.2001,

was not justified in including the building situated in CTS

No.4496 in final decree proceedings. Therefore, I am of

the firm view that there is clear suppression of

preliminary decree passed in O.S.No.188/1998 insofar as

building situated in CTS No.4496 is concerned. Therefore,

the consequent modification of preliminary decree on

account of death of mother of the plaintiff and defendant

No.3 i.e. Kalavathi modifying the shares and the

consequent final decree drawn by the FDP Court in FDP

No.2/2005 insofar as building situated in CTS No.4496 is

one without jurisdiction. This is a classic case of abuse of

process at the instance of both the appellants. The

plaintiff and defendant No.3, who are appellants before

this Court were party to the proceedings. It was well

within their knowledge about preliminary decree in

O.S.No.188/1998 and the Trial Court has clearly held that

building situated in CTS No.4496 is self-acquired property

of defendant No.2. Therefore, it was incumbent on the

part of plaintiff to only include the open space abutting

CTS No.4496 and the plaintiff was under a bounden duty

to implead the purchasers to workout feasibility of

partition insofar as open space abutting to CTS No.4496

is concerned.

10. Both the appellants may contend that they had

absolutely no notice in regard to sale by defendant No.2

at the instance of co-operative bank but however, the

fact that purchasers are in exclusive possession of the

building and consequently their names were mutated in

property extract, it would amount to constructive notice.

If these significant details are taken into consideration,

then I am of the view that the final decree drawn by the

FDP Court by including the building situated in CTS

No.4496 is one without jurisdiction and the same is

contrary to preliminary decree passed in O.S.No.188/

1998. The subject matter of FDP No.2/2005 was only

open space abutting to building situated in CTS No.4496.

Even that open space cannot be straightaway allotted to

the family members of the appellants herein as there is

already an observation in operative portion of

O.S.No.188/1998 that since it is attached to the building

situated in CTS No.4496, the Court has to examine the

equity and allot it to defendant No.2. This finding would

enure to the benefit of purchasers as they have stepped

into the shoes of defendant No.2-vendor. In the light of

the observation made supra, I am of the view that the

remand order passed by the Appellate Court is in

accordance with law and the same does not suffer from

any infirmity.

11. The appellants before this Court have

unnecessarily ventured into dragging the purchasers in

one more round of litigation in respect of building

situated in CTS No.4496. If the preliminary decree drawn

in O.S.No.188/1998 has attained finality, the present

appellants have no right to re-litigate and claim share in

the building situated in CTS No.4496 and by consciously

adding building situated in CTS No.4496 in FDP

NO.2/2005, they have deliberately mislead the FDP Court

and the FDP Court has granted 1/3rd share to plaintiff,

defendant No.3 and legal representatives of defendant

No.2 in CTS No.4496. This is nothing but sheer abuse of

process of law. The claim of appellant in residential house

in CTS No.4496 was already rejected and suit was

dismissed. Therefore, taking advantage of death of

defendant No.1, appellants have not only sought for

modification of share but have succeeded in getting a

preliminary decree even in respect of residential house,

which was already rejected in O.S.No.188/1998. Courts

are bound to take judicial notice of the fact that many

unscrupulous parties take advantage of the fact that

either costs are not awarded or nominal costs are

awarded on unsuccessful parties. The appellants have

deliberately and intentionally laid false claim even in

respect of residential house. Though appellant in MSA

No.100031/2014 claims that she has not filed FDP and

therefore, requests this Court not to impose cost, the said

contention deserves to be out rightly rejected. Appellate

Court having taken note of preliminary decree dated

15.10.2001 has set aside the order and matter is

remitted back to trial Court to reconsider the matter.

Defendant No.3 has not accepted the remand order, but

the same is challenged in MSA No.100031/2014.

Therefore, defendant No.3 is equally guilty and has to

bear exemplary cost. Appellants have deliberately

prolonged harassment on purchasers in lingering on

frivolous litigation.

12. Therefore, I am of the view that both the

appeals are liable to be dismissed by imposing costs of

Rs.25,000/- each. Accordingly, the appeals are dismissed

on cost of Rs.25,000/- each.

13. The present appellants can pursue the final

decree only subject to deposit of costs imposed by this

Court. On such deposit of costs by the appellants, the

said amount shall be paid to respondents 1 and

2/purchasers on proper identification.

14. In view of disposal of the appeals, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

SD/-

JUDGE YAN