Karnataka High Court
Smt.Neelamma vs Smt.M. Nagaveni @ Nagavenamma on 20 July, 2022
Bench: K.S.Mudagal, M.G.S. Kamal
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JULY, 2022
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR.M.G.S.KAMAL
R.F.A.No.100138/2016 (PART. & SEP. POSSN.)
BETWEEN
1. SMT.NEELAMMA W/O MALLANA GOUDA
@ MALLIKARJUN GOUDA,
AGE: 75 YEARS, OCC: AGRICULTURE,
R/O: SHANKARABANDE-583103,
TAL and DIST: BALLARI.
2. M.YERRAPPA S/O MALLANA GOUDA
@ MALLIKARJUN GOUDA,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: SHANKARABANDE-583103,
TAL and DIST: BALLARI.
Digitally signed by J
MAMATHA
Location: High Court
J of Karnataka,
3. M.LOKANA GOUDA S/O MALLANA GOUDA
MAMATHA Dharwad Bench
Dharwad.
Date: 2022.07.20
13:15:08 +0530 @ MALLIKARJUN GOUDA,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: SHANKARABANDE-583103,
TAL and DIST: BALLARI.
4. SMT.B.M.LEELA W/O LATE S NAGAPPA
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: MALLIKARJUN NILAY, 5TH CROSS,
SATYASAI COLONY, WARD NO.19,
BALLARI-583101. ... APPELLANTS
(BY SHRI NANDISH F.PATIL, FOR
SHRI F.V.PATIL, ADV.)
R.F.A.No.100138/2016
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AND
1. SMT.M. NAGAVENI @ NAGAVENAMMA
W/O DODDABASAPPA @ DODDANAGOUDA
AGE 60 YEARS, OCC SINECURE (HOUSEHOLD)
R/O SIRIGERI-583120, TQ SIRUGUPPA,
DIST BELAGAVI.
2. SMT.MANJULA W/O MANJUNATHA GOUDA
D/O LATE DODDABASAPPA @ DODDANAGOUDA,
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O: YELABENCHI-58311
TQ and DIST: BALLARI.
3. SMT. LOKESHWARI W/O BASAVARAJ
D/O LATE DODDABASAPPA @ DODDANAGOUDA,
AGE: 38 YEARS, OCC: HOUSEHOLD,
R/O: ALBANUR-584128, TQ: SINDHANUR,
DIST: RAICHUR.
SHANKARBANDA M.BASAVARAJ
S/O LATE KATTEBASAPPA
SINCE DECEASED BY HIS LRS,
4. SMT. M LAXMI W/O LATE M.BASAVARAJ,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: PRABHUDEVA COMPOUND,
DOOR NO.21, REDDY STREET,
WARD NO.12, KUDURE GALEPPA LANE,
BALLARI-583101.
5. SMT.MANJULA W/O NAGARAJ
D/O LATE BASAVARAJ,
AGE: 30 YEARS, OCC: HOUSEHOLD,
R/O OPP: KUMARSWAMY TEMPLE,
H.NO.3, VEERABHADRESHWARA NILAYA,
NEAR FIRE STATION, BALLARI-583101.
6. KUMAR.SARVAGNA S/O LATE M.BASAVARAJ,
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: PRABHUDEVA COMPOUND, REDDY STREET,
WARD NO.12, DOOR NO.21
KUDURE GALEPPA LANE, BALLARI-583101.
R.F.A.No.100138/2016
-3-
7. CHI.ASHOK S/O LATE M.BASAVARAJ,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O: PRABHUDEVA COMPOUND,
DOOR NO.21, REDDY STREET,
WARD NO.12, KUDURE GALEPPA LANE,
BALLARI-583101.
8. SHIVASHANKARAPPA S/O LATE KATTEBASAPPA
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: SHANKARABANDE-583103,
TAL and DIST: BALLARI.
9. SHANKARBANDA M POMPANA GOUDA
S/O LATE KATTEBASAPPA
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: OBANNA NIVAS, 1st CROSS
MARATHA GALLI, DEVINAGAR,
BALLARI-583101.
10. SMT.LAKSHMI W/O LATE CHIDANANDAPPA
AGE: 50 YEARS, OCC: LANDLADY
R/O: SHANKARABANDE-583103,
TAL and DIST: BALLARI.
11. PALAKSHI S/O LATE KATTEBASAPPA
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: SHANKARABANDE-583103,
TAL and DIST: BALLARI.
SMT.MANGALAMMA W/O RUDRA GOUDA
DIED ON 11.11.2015
SINCE DECEASED BY HER LRS,
12. SHRI.POMPANAGOUDA S/O RUDRAGOUDA,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: MUSTGATTI-583103,
TAL and DIST BALLARI.
13. SMT.HAMPAMMA W/O BASANAGOUDA,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: MUSTGATTI-583103,
TAL and DIST BALLARI.
R.F.A.No.100138/2016
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14. SMT.HEMAVATI W/O POMPANAGOUDA,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O: GENOKIHAL-583103,
TAL and DIST: BALLARI.
15. SMT.BHAGYAMMA W/O POMPANA GOUDA,
AGE: 61 YEARS, OCC: SINECURE (HOUSEHOLD)
R/O: HAVINAHAL-583103,
TAL and DIST: BALLARI.
16. SMT.UMADEVI W/O VISWANATH,
AGE: 45 YEARS, OCC: SINECURE (HOUSEHOLD)
R/O: MARIAMMANAHALLI-583222,
TAL: HOSPET, DIST: BALLARI.
17. SMT.VIJAYALAKSHMI W/O YERRAPPA GOUDA,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: SIRIGERI-583120, TAL: SIRUGUPPA,
DIST: BALLARI.
18. SMT.SULOCHANAMMA W/O MARE GOUDA,
AGE: 40 YEARS, OCC: HOUSEWIFE,
R/O: C/O DR.N.PRAHALAD,
SRINIVASA NILAYA, 3RD WARD,
KALAMMA STREET, BALLARI-583101.
19. SMT.BHAGEERATHI W/O LATE S.NAGAPPA,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O: DHANALAKSHMI CAMP,
SHANKARABANDE POST-583103,
TAL and DIST: BALLARI. ... RESPONDENTS
(BY SHRI B.CHIDANANDA, ADV. FOR R1 TO R3,
SMT.PALLAVI S.PACHHAPURE, ADV. FOR R4,
R6 TO R9 AND R11,
SHRI CHETAN T.LIMBIKAI, ADV. FOR R5, R6, R8,
R10 TO R12 AND R15 TO R17,
NOTICE TO R14 SERVED,
NOTICE TO R13, R18 AND R19-SERVICE HELD SUFFICIENT)
THIS APPEAL IS FILED U/S 96 (1) READ WITH ORDER
XL1 RULE 1 OF CPC, 1908, AGAINST THE JUDGMENT AND
R.F.A.No.100138/2016
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DECREE DATED 16.02.2016 PASSED IN F.D.P.No.20/2016 ON
THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, BALLARI,
PARTLY ALLOWING THE PETITION FILED UNDER SECTION 54
READ WITH SECTION 151 CPC.
THIS APPEAL COMING ON FOR FURTHER HEARING ON
07.07.2022 AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Respondents 11 to 13 and 15 in F.D.P.No.20/2006
on the file of the I Addl. Senior Civil Judge, Ballari, have
preferred the above appeal challenging the order for
drawing up of the final decree. Respondents 1 to 3 in this
case were the petitioners in the said case. Respondents 4
to 19 were respondents 1 (a) to (d), respondents 2 to 10
and 14 in the said case. For the purpose of convenience
the parties will be referred to henceforth according to their
ranks before the trial Court.
2. The petitioners/plaintiffs are the wife and
daughters of one Doddana Gouda. The pedigree of the
family is as follows:
R.F.A.No.100138/2016
Nagappa (died 1975)
Gouramma (died)
Ishwarappa Katte Basappa
(died 13.03.1999) (died 1998)
= Gouramma (dead) =Hanmantamma
(died 1983)
Mallikarjungouda Nagappa
(2001) (2006)
=Neelamma Bhagirati=M.B.Leela (alive)
Nagaratna
Renuka Shaila Manjunath
Susheelamma Yerappa Basavaraj Lokanath Laxmidevi
Doddagouda Basavaraj Chidanand Mangalamma Bhagyama Shivshankar Pampanagouda Palax Uma Vijaya Sulochana
(died 1978) (D-1) =Laxmidevi(D-4) (D-6) (D-7) (D-2) (D-3) (D-5) (D-8) (D-9) (D-10)
=Nagaveni =Laxmidevi
(plf-1) (D-1A)
Ramanagouda Rajashekhargouda Virupaxi Madhavi
=Rudragouda
Manjula Lokeshwari
(P-2) (P-3)
Pamapnagouda Hampamma Hemavati Doddanagouda
=Hemavati
Sarvadnya Manjula Ashok Pavitra Shantamma Shivashankar
(D-1C) (D-1B) (D-1)
3. Doddana Gouda the husband of plaintiff No.1
predeceased his father Kattebasappa. Plaintiff Nos.1 to 3
being the wife and daughters of
Doddagowda filed O.S.No.249/2002 against defendants/
respondents 1 to 10 seeking partition and
separate possession of their share in the suit schedule
properties. They claimed that there was a partition
between Ishwarappa and Kattebasappa. Doddana Gouda
R.F.A.No.100138/2016
being the son of Kattebasappa was entitled to a share in
the properties inherited by Kattebasappa from his father.
The said suit was contested by respondents/defendants 1
to 10.
4. On contest, the trial Court by the judgment
and decree dated 01.02.2006 partly decreed
O.S.No.249/2002 awarding 15.57/100th share to the
plaintiffs in suit schedule A, B and item No.1 of C schedule
properties. Since the present appellants and
respondent No.19 were not parties to the said suit they
filed R.F.A.No.771/2008 challenging the judgment and
decree in O.S.No.249/2002 along with an application
seeking permission to file the appeal though they are not
parties to the suit or decree.
5. The appellants and respondent No.19 claimed
that they are the heirs of Ishwarappa and the plaintiffs in
O.S.No.249/2002 have included the properties fallen to the
share of Ishwarappa also without impleading them as
R.F.A.No.100138/2016
parties to the suit, thereby obtained the decree against
their interest behind their back.
6. This Court on hearing the parties and
considering the merits by the judgment dated 29.06.2009
dismissed RFA No.771/2008 holding that if the appellants
and respondent No.19 are not parties to the suit, the said
decree does not bind them and if they are claiming any
independent right over the suit properties it is open to
them to question the same by raising objections under
Order XXI Rule 97 CPC.
7. After the dismissal of R.F.A.No.771/2008 one
Brahmaramba claiming to be the daughter-in-law of the
present appellant No.1 filed R.F.A.No.4188/2013
(Part./Possn.) seeking to set aside the judgment and
decree in O.S.No.249/2002 again on the same ground as
claimed in R.F.A.No.771/2008. This Court by the
judgment dated 28.08.2017 dismissed the said appeal on
the ground that the similar appeal in R.F.A.No.771/2008 is
already dismissed on merits.
R.F.A.No.100138/2016
8. In the meantime, the decree holders filed
F.D.P.No.20/2006 before the I Addl. Senior Civil Judge,
Ballari, seeking the final decree in terms of the preliminary
decree in O.S.No.249/2002. Pending R.F.A.No.771/2008,
the appellants filed IAs-2 to 6 in F.D.P.No.20/2006 seeking
their impleadment as respondents 11 to 15. The trial
Court ignoring the judgment in RFA No.771/2008 and
objections of plaintiffs, by order dated 14.09.2009 and
26.11.2009 allowed the said applications holding that they
are necessary parties to the final decree proceedings.
9. On the application of the plaintiffs/respondents
1 to 3 the trial Court appointed the Tahsildar of
Ballari taluk for inspection of the suit lands and to submit
the report demarcating the shares of the plaintiffs. The
Commissioner on executing the commission work
submitted his report. The records indicate that for dividing
plaint schedule 'B' properties i.e., house property, an
advocate was appointed as Commissioner. He submitted
his report.
R.F.A.No.100138/2016
10. In his report the Tahsildar/Commissioner
proposed for division of plaint schedule 'A' item Nos.1 to 9
and 15 lands only. Regarding plaint schedule 'A' item No.8
to 14 he submitted that there was difference in the extent
of properties shown in the decree and shown in the record
of rights. Therefore, that could not be divided.
11. The appellants and respondent No.19 filed
objections to the Commissioner's (Tahsildar) report again
claiming that their properties are included in the shares to
be allotted to the plaintiffs/respondents 1 to 3 and
commission work is not properly executed. The trial Court
on hearing the parties by the impugned order accepted the
Commissioner's report so far as item Nos.1 to 6, 8, 9, 15
of 'A' schedule properties and directed to draw the
preliminary decree accordingly.
12. The trial Court holds that plaintiffs' counsel
filed memo restricting the claim only in respect of item
Nos.1 to 9 and 15 properties and they even gave up claim
in respect of item No.7 property as that is a very small bit
R.F.A.No.100138/2016
of land. The trial Court holds that 'B' schedule properties
are the house properties and there is no evidence
regarding suit schedule 'C' i.e., movable properties. Thus,
ordered to draw final decree in terms of the
Commissioner's report in respect of item Nos.1 to 6, 8, 9
and 15.
Submissions of Shri Nandish Patil, learned
counsel for the appellants:
13. The appellants and respondent No.19 claimed
independent right in plaint schedule item Nos.1 to 3, 7 to
9, 13 and 14. The trial Court has not given any finding on
that. Pending the final decree proceedings, respondent
No.6-Mangalamma died and her heirs were not brought on
record and therefore the entire petition abated. The trial
Court did not conclusively decide all the points raised.
Reiterating the other grounds urged in the appeal memo
he seeks setting aside the order of the trial Court.
R.F.A.No.100138/2016
Submissions of Shri B.Chidananda, learned
counsel for respondents 1 to 3:
14. Plaintiffs being widow and the daughters of
Doddabasappa @ Dodda Gouda are fighting since 22 years
to get their legitimate share. The other respondents to
defeat the preliminary decree passed in favour of
petitioners/plaintiffs set up respondent Nos.15 to 19 and
daughters-in-law of 19th respondent, got filed
R.F.A.No.771/2008 and R.F.A.No.4188/2013. Having
failed in those appeals they came on record in final decree
proceedings contrary to the judgments of this Court. Not
being satisfied with that, to harass the plaintiffs they
raised untenable objections for drawing up of final decree.
Though the Commissioner did not give favourable report in
respect of schedule 'A' item Nos.4 to 14 lands, since the
petitioners were tired of two decade old proceedings,
reserving their right to seek separate final decree with
regard to the same conceded for accepting the
Commissioner's report. Even they gave up item No.7
R.F.A.No.100138/2016
property as that was a small bit of land. Respondent
Nos.15 to 19 failed to establish their right. Their claim in
the final decree proceedings is contrary to the judgments
of this Court in R.F.A.No.771/2008 and
R.F.A.No.4188/2013. The appeal is filed only to harass
petitioners.
15. Though Smt.Pallavi S.Pachhapure represents
respondents 4, 6 to 9 and 11 and Shri Chetan T.Limbikai
represents respondents 5, 6, 8, 10 to 12, 15 to 17 in this
case they did not contest the appeal. Respondents 13, 14,
18 and 19 though served remain unrepresented. On
considering the submissions of both side and the material
on record the question that arises for consideration is:
"Whether the impugned order suffers illegality
warranting interference of this Court?"
Analysis
16. Since the facts are already narrated above
again they do not need a detailed narration again. Suffice
it to say that petitioners 1 to 3 filed O.S.No.249/2002
R.F.A.No.100138/2016
against defendants 1 to 10 for partition and separate
possession of their share. They all belong to the branch of
one Kattebasappa. The present appellants and respondent
No.19 belong to the branch of Kattebasappa's brother
Ishwarappa. According to the parties there was a partition
between Kattebasappa and Ishwarappa in the year 1982
itself. None of the parties disputed that. Plaintiffs sought
their share only in the estate of Kattebasappa.
17. The subject matter of the suit were shown as
schedule A, B and C properties. Schedule 'A' contains the
landed properties, 'B' contains the house properties and 'C'
contains the movable properties. The dispute in this case
relates to schedule 'A' landed properties situated within the
limits of Tolamamidi village, Ballari taluk which are as
follows:
Sl.No. Sy.No. Extent
1 119/B/1 1-42 cents
2 119/B/3 11-34 cents
3 1/A 9-80 cents
4 7/C 1.27 cents
5 7/D 6-20 cents
6 9A/1A 11 acres 85 cents
7 9 A/3 B/1 3 cents
8 117 A/1 3 acres 41 cents
R.F.A.No.100138/2016
9 117 C/2 12 cents
10 7E 22 acres 27 cents
11 333 A/2 10 acres 75 cents
12 333 A/3 21 acres 92 cents
13 382 C/1 B 19 acres 50 cents
14 382 A/1 B 3 acres 85 cents
15 386 D 11 acres 66 cents
18. Respondent Nos.11 to 15 claimed that in the
partition between Kattebasappa and Ishwarappa, some
portion of item Nos.1 to 3, 7 to 9, 13 and 14 of 'A'
schedule properties had fallen to the share of Ishwarappa.
They claim that plaintiffs included those portions of the
properties also in item Nos.1 to 3, 7 to 9, 13 and 14
without impleading them as parties in the suit and secured
the decree behind their back. Their objections to the
Commissioner's report was also to the same effect.
19. It is pertinent to note raising the same
contentions, the appellants and respondent No.19 filed
R.F.A.No.771/2008 before this Court and sought
permission to prefer and prosecute the said appeal. This
Court considering the merits of the matter and the
application dismissed the same on 29.06.2009 holding that
R.F.A.No.100138/2016
if they have any independent right, the decree does not
bind them and they can raise that objection in the
execution proceedings invoking the provisions of Order XXI
Rule 97 CPC. Having failed in the said appeal, one
Brahmaramba the daughter-in-law of the 1st appellant was
set up to file R.F.A.No.4188/2013 (Part. & Possn.) again
raising the same grounds. That appeal also came to be
dismissed on 28.08.2017 in view of the dismissal of
R.F.A.No.771/2008.
20. Surprisingly pending R.F.A.No.771/2008
appellants and respondent No.9 filed IAs-2 to 6 before the
trial Court to implead them with the same contention.
Needless to say that the judgment dated 29.06.2009 in
R.F.A.No.771/2008 not only binds the parties to the appeal
but also binds the trial Court. Still the trial Court ignoring
the said judgment of this Court, even after referring to the
same allowed IAs-2 to 6 which is nothing but judicial
indiscipline.
R.F.A.No.100138/2016
21. When it was specifically stated that respondent
Nos.11 to 15 could raise such objections only in the
execution proceedings under Order XXI Rule 97 CPC, it
was not open to them again to seek their impleadment in
final decree proceedings which are the continuation of the
suit. Such conduct of respondent Nos.11 to 15 was the
sheer abuse of the process of the Court. When the
appellants and respondent No.19 were barred raising such
plea until the case reaches execution stage, their
objections either to the Commissioner's report or to the
final decree proceedings had no legs to stand.
22. Further to substantiate their claim that they
have interest in schedule 'A' item Nos.1 to 3, 7 to 9, 13
and 14 the only documents produced by respondent
Nos.11 to 15 were Exs.R.2 to 7, the RTCs. They pertain to
Sy.Nos.7/E/1, 7/E/2, 7/E/3, Sy.No.1/A. Out of Exs.R.2 to
7 Exs.R.4 to 6 related to Sy.No.1/A i.e., item No.3 and
Ex.R.7 related to Sy.No.119/B/1 i.e., item No.1 property.
Again Exs.R.4 and 5 related to the period 2008-2009, in
R.F.A.No.100138/2016
respect of Sy.No.1/A, Ex.R.6 related to the year 2009 and
Ex.R.7 related to the year 2007-2008. None of those
documents speak that those properties were allotted to
Ishwarappa and from him appellants and respondent
No.19 succeeded to the same. Such was the sketchy
evidence produced by them. Under such circumstances,
the trial Court was right in rejecting the objections and
accepting the report, though did not consider the
maintainability of the objections of respondent Nos.11 to
15 in the light of the dictum of this Court in
R.F.A.No.771/2008.
23. Absolutely there is no merit in the appeal.
There is much force in the contention of petitioners that
the unsuccessful original defendants/respondents 1 to 10
have set up respondent Nos.11 to 15 to procrastinate the
matter and harass them. Having regard to such conduct
the appeal is liable to be dismissed with heavy costs.
R.F.A.No.100138/2016
24. Hence the following:
ORDER
i) The appeal is dismissed on payment of costs of
Rs.20,000/- payable to respondents 1 to 3.
ii) Unless the appellants deposit the said cost,
appellants or anybody claiming through them
shall not be entitled to any audience in
F.D.P.No.20/2019 or in the execution
proceedings arising out of the same.
Transmit the TCRs to the Tribunal forthwith.
[Sd/-]
JUDGE
[Sd/-]
JUDGE
Jm/-
