Mohammed K A vs Abbas
2022 Latest Caselaw 2879 Kant

                           1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF FEBRUARY, 2022

                        BEFORE

          THE HON'BLE MR.JUSTICE M.G.S.KAMAL

 REGULAR SECOND APPEAL NO.392 OF 2015 (RES)

BETWEEN:
MOHAMMED K. A.,
S/O ADAM KUNHI,
AGED ABOUT 49 YEARS,
R/O KADABA VILLAGE,
PUTTUR TALUK,
D.K. DISTRICT - 571 249.
                                        ... APPELLANT
(BY SRI.MOIDEEN ARAFAT, ADVOCATE FOR
    SRI.SACHIN B.S., ADVOCATE)

AND:

1.     ABBAS,
       S/O ABBU BEARY,
       AGED ABOUT 55 YEARS,
       R/O SANJAY NAGAR, KOORNADAKA,
       KEMMINJE VILLAGE, POST DARBE,
       PUTTUR TALUK, D.K. - 571 249.

2.     SMT. SARAMMA,
       W/O LATE ABBU BEARY,
       AGED ABOUT 85 YEARS,
       R/O PERIYADKA,
       KASABA VILLAGE,
       PUTTUR TALUK D.K. - 571 249.

3.     SMT. BEEPATHUMMA,
       D/O LATE ABBU BEARY,
       AGED ABOUT 85 YEARS,
                          2


     R/O KUDALADDA HOUSE,
     ARYAPU VILLAGE AND POST,
     PUTTUR TALUK, D.K. - 571 249.

4.   SMT. KHATIJ,
     D/O LATE ABBU BEARY,
     AGED ABOUT 54 YEARS,
     R/O AMMUNJE HOUSE,
     ARYAPU VILLAGE,
     PUTTUR TALUK.
     D.K. - 571 249.

5.   SMT. NEBISA,
     D/O LATE ABBU BEARY,
     AGED ABOUT 53 YEARS,
     R/O PANJA, POST PANJA,
     SULLIA TALUK,
     D.K. - 571 249.

6.   SRI. LATEEFA,
     S/O LATE ABBU BEARY,
     AGED ABOUT 48 YEARS,
     R/O MANIA HOUSE,
     PURUSHARAKATTE POST,
     NARIMOGRU VILLAGE,
     PUTTUR TALUK,
     D.K. - 571 249.

7.   ABDUL AZEEZ,
     S/O LATE ABBU BEARY,
     AGED ABOUT 45 YEARS,
     R/O PERIYADKA,
     KASABA VILLAGE,
     PUTTUR TALUK,
     D.K. - 571 249.

8.   MOHAMMED ASHRAF,
     S/O LATE ABBU BEARY,
     AGED ABOUT 43 YEARS,
     R/O PERIYADKA,
                           3


      KASABA VILLAGE,
      PUTTUR TALUK,
      D.K. - 571 249.

9.    NAZEER,
      S/O LATE ABBU BEARY,
      AGED ABOUT 38 YEARS,
      R/O PERIYADKA,
      KASABA VILLAGE,
      PUTTUR TALUK,
      D.K. - 571 249.

10.   ADAM HAJI
      S/O LATE AHAMMED,
      AGED ABOUT 75 YEARS,
      R/O AITHOOR VILLAGE,
      PUTTUR TALUK,
      D.K. - 571 249.
                                       ...RESPONDENTS
(BY SRI.K.SHRIHARI, ADVOCATE FOR R1;
    R4, R6, R8, R10 ARE SERVED;
    SRI.ANANDITHA SRINIVASAN, ADVOCATE FOR R7;
    NOTICE ON R2 HELD SUFFICIENT VIDE ORDER
    DATED 17.10.2019;
    NOTICE TO R3, 5 AND 9 IS HELD SUFFICIENT VIDE
    ORDER DATED 31.05.2021)

      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT & DECREE DATED 23.1.2015 PASSED
IN R.A.NO.101/2012 ON THE FILE OF V ADDITIONAL DISTRICT
AND SESSIONS JUDGE, D.K., MANGALORE, SITTING AT
PUTTUR, D.K., DISMISSING THE APPEAL FILED AGAINST THE
JUDGMENT AND DECREE DATED 21.4.2011 PASSED IN
FDP.No.1/1998 ON THE FILE OF ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, PUTTUR, D.K., ACCEPTING THE COURT
COMMISSIONER REPORT AND HIS FINAL DELIVERY REPORT,
CONSEQUENTLY DRAWING FINAL DECREE.


     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                             4




                      JUDGMENT

This second regular appeal is filed by the

appellant aggrieved by the judgment and decree

dated 23/01/2015 passed in R.A.No.101/2012 on the

file of the V Additional District and Sessions Judge,

D.K., Mangalore sitting at Puttur, D.K. (for short

hereinafter referred to as 'the first appellate court') in

and by which, the first appellate court while

dismissing the application filed under Section 5 of the

Limitation Act and also dismissed the appeal.

2. Originally a suit in OS.No.59/1995 filed by

respondent No.1 herein against respondent Nos.2 to 9

on the file of Civil Judge (Senior Division) and

Additional C.J.M., Puttur, D.K (for short hereinafter

referred to as 'the Trial court') for relief of partition

and separate possession which was decreed on

20.08.1997. Thereafter, a Final Decree Proceedings

was initiated in FDP.No.1/1998. During the pendency

of the FDP proceedings, the appellant herein who had

purchased 3 acres 5 cents of land bearing

Sy.No.67/1A, forming part of Item No.3 of plaint

schedule property in terms of a registered deed of sale

on 12/08/2005 bearing document No.715/2005-06

from respondent Nos. 2 to 8 herein represented by

respondent No.9 as their power of attorney holder.

The appellant who was not a party in the said original

suit had got himself impleaded in the Final Decree

Proceeding as respondent No.10 vide order dated

03.07.2010.

3. A Court Commissioner was appointed who

filed his report dated 15.02.2011 regarding allotment

of shares. The appellant herein had filed his

objections. The trial Court by its order dated

05.04.2011 had accepted the report of the

Commissioner and had rejected the objections of the

appellant herein. The trial Court had directed the

Commissioner to deliver the possession of the

property as per his proposed allotment to the parties

and had also issued delivery warrant to the Court

Commissioner and posted the matter to 21.04.2011.

The appellant herein had filed an application Order 41

Rule 5 of CPC seeking stay of the operation of the said

order which was rejected by the trial Court by its

order dated 05.04.2011. Thereafter by order dated

18.04.2011 the trial Court had directed the Court

Commissioner to consider the equity of appellant

herein in respect of his title. Thereafter, the trial Court

by order dated 21.04.2011 had accepted the report of

the Court Commissioner and his final delivery report

and directed to draw the final decree.

Aggrieved by the same, the appellant herein filed

the above regular appeal in R.A No.101/2012 seeking

to set aside the order of the trial Court accepting the

report of the Commissioner.

4. That there was a delay of 508 days in filing

the above regular appeal. Consequently, the appellant

filed an application under Section 5 of the Limitation

Act, seeking condonation of delay. The first appellate

court had dismissed the said application for

condonation of delay and had also dismissed the main

appeal as the appellant had failed to make out case on

merits. Aggrieved by the same, the appellant is

before this Court.

5. Sri Moideen Arafat, learned counsel for

Sri Sachin B.S., for the appellant reiterating the

grounds urged in the appeal memorandum submitted;

(i) That the appellant had admittedly

purchased the suit schedule property from

respondent Nos.2 to 9 and even before

passing of the Preliminary Decree, the

appellant was put in possession of the suit

schedule property by virtue of an

agreement and under such circumstances

the decree passed by the trial court

directing the appellant to hand over portion

of 45 cents out of 305 cents of land

purchased by him to respondent No.1 had

resulted in miscarriage of justice.

(ii) That since there is no decree directing

delivery of suit schedule property to

respondent Nos.2 to 9 the courts below

ought to have set aside the report of the

commissioner and restored the possession

to the appellant.

(iii) That since the appellant had good

case on merits, the first appellate court

ought to have condoned the delay and

adjudicated the case on merits instead of

dismissing the same as having barred by

limitation.

Hence, he submits that there is substantial

question of law involved in the matter requiring

consideration.

6. Per contra, Sri K. Shrihari, learned counsel

for the respondent No.1 submitted that no prejudice is

caused to the appellant in the Final Decree Proceeding

as he has been allotted the share which his vendors,

namely respondent Nos. 2 to 9 were entitled to and

the appellant being the purchaser from the co-sharers

of the property cannot claim more than what they

were entitled to. That the first appellate court has

even dealt with merits of the case, as could be seen in

the reasoning assigned even while dismissing the

application for condonation of delay and as such no

substantial question of law is involved in this appeal

requiring consideration. Hence, sought for dismissal

of the appeal.

7. Heard learned counsel for the parties.

Perused the records.

8. It is not in dispute that the appellant is a

purchaser of 3 acres 5 cents of land forming a part of

Item No.3 of plaint 'A' schedule property in terms of

deed of sale dated 12/08/2005 that is during the

pendency of the Final Decree proceedings in FDP

No.1/1998 from respondent Nos.2 to 8 represented by

respondent No.9 as their Power of Attorney. That the

appellant got himself impleaded in the Final Decree

Proceeding in FDP No.1/1998 as respondent No.10.

The appellant had filed his objection to the report of

the Commissioner regarding partition and allotment of

shares to the parties. The trial Court by its order

dated 05.4.2011 had accepted the report of the

Commissioner dated 15.02.2011 and rejected the

objections of the appellant. The trial Court by order

dated 18.04.2011 had directed the Commissioner to

consider the equity of the appellant to the extent of

his share. The said order was challenged by the

appellant in the Writ petition No.27220/2011 which

was dismissed by this Court by order dated

1.03.2012.

9. That in the meanwhile, the trial court by its

order dated 21/04/2011 in the Final Decree

Proceeding had accepted the final report regarding

delivery of the properties to the parties along with the

sketch furnished by the Court Commissioner. The

appellant had been given complete opportunity by the

trial court in the Final Decree Proceedings.

10. The first appellate Court while dealing with

the delay of 508 days in filing the above appeal has

also dealt with the merits of the case of the appellant.

The appellant has not given any justifiable reason

regarding the delay in filing the appeal. The first

appellate Court has taken note of the order of this

Court in W.P.No.27220/2011 wherein this Court while

dismissing the said petition has observed at para-3 as

under:

"It is not in dispute that the petitioner is claiming an agreement of sale. It is open to the petitioner to work out his remedy in so far as the agreement is concerned against respondent No.1. The Commissioner has taken care to allot the share to purchaser on the basis of the sale deed, and has protected the interest of the purchaser. Hence, I find just and equitable order has been passed by the Court below and there is no ground to interfere with the same. However, liberty is reserved to the petitioner to work out his remedy against respondent No.1 on the basis of alleged agreement."

11. As seen in paragraph 17 of the judgment

and order of the first appellate Court, the learned

counsel for the appellant during the argument has

submitted that the appellant has no grievance against

respondent No.1 who has been given the property as

per the Commissioner report. It is admitted by the

appellant that out of 3 acres 5 cents of land in

Sy.No.67/1A purchased by the appellant, 45 cents

has been allotted to the share of the respondent No.1

as per the preliminary decree and the appellant had

no grievance in this regard. The allotment and

delivery of possession of the shares in the land by the

Court Commissioner is according to the entitlement of

the parties as per the preliminary decree passed in OS

No.59/1995. The appellant who was the purchaser

during pendency of FDP is entitled for the shares only

to the extent of the entitlement of his vendors namely

respondent Nos. 2 to 8. If during the final decree

proceedings equities have been adjusted and portion

of land which was not the entitlement of respondent

Nos. 2 to 8 has been allotted to respondent No.1, the

appellant cannot have any grouse. These aspects of

the matter have also been taken into consideration by

first appellate Court in the impugned judgment and

order.

12. It is under the aforesaid circumstances,

while dismissing the application for condonation of

delay the first appellate Court has observed that the

appellant has not shown any bonafides and has not

explained the grounds to condone the delay besides

not making out an arguable case on merits of the

appeal.

13. In the above facts and circumstances of the

matter, no substantial question of law is involved in

this appeal requiring consideration. In the result, the

following:

ORDER

i) Regular Second Appeal No.392/2015

filed by the appellant is dismissed.

      ii)   The   judgment      and   decree   dated

            23/01/2015            passed           in

RA.No.101/2012 by the first appellate

court is confirmed.

Sd/-

JUDGE

Mkm