Sri. N. M. Girish Prakash vs Smt. N. M. Kamalakshi
2022 Latest Caselaw 8362 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 8TH DAY OF JUNE, 2022

                          BEFORE

         THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

       MISCELLANEOUS FIRST APPEAL NO.4684/2021 (CPC)

BETWEEN:

SRI. N. M. GIRISH PRAKASH
SON OF LATE N. L. MAHADEVAPPA,
AGED ABOUT 53 YEARS,
RESIDENT OF HORALVADI VILLAGE,
NANJANGUD TALUK,
MYSURU DISTRICT-571 129.
                                           ... APPELLANT
(BY SRI. B SHARATH KUMAR, ADVOCATE)

AND:

1.     SMT. N. M. KAMALAKSHI
       DAUGHTER OF LATE N. L. MAHADEVAPPA,
       AGED ABOUT 70 YEARS,
       RESIDING AT DOOR NO. 408,
       2ND CROSS, 5TH BLOCK, 3RD PHASE,
       BANASHANKARI 3RD STAGE,
       BANGALORE - 560 050.

2.     SRI. N. M. MAHESH PRAKASH
       SON OF LATE N. L. MAHADEVAPPA,
       AGED ABOUT 68 YEARS,
       RESIDING AT DOOR NO. 9/B,
       INDUSTRIAL SUBURB,
       1ST STAGE, VISHWESHWARANAGARA,
       MYSURU - 570 008.
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3.    SMT. N. M. BABY KANAKAPUTHALI
      DAUGHTER OF LATE N. L. MAHADEVAPPA,
      AGED ABOUT 65 YEARS,
      RESIDING AT DOOR NO. 47,
      SUMUKA, GIRIGOWDA LAYOUT,
      NANJANGUD TOWN,
      MYSURU DISTRICT - 571 301.
                                    ... RESPONDENTS
(BY SRI. P. NEHRU, ADVOCATE FOR R1 & R2;
    NOTICE SERVED ON R3)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(s) OF CPC,1908 AGAINST THE
ORDER DATED 03.04.2021 PASSED ON I.A. IN O.S.NO.
108/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE,
NANJANGUD,    ALLOWING    I.A. FILED   BY    THE
APPLICANT/PLAINTIFF NO.2 UNDER ORDER 40 RULE 1
READ WITH SECTION 151 OF CPC.

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

                       JUDGMENT

The appellant, who is the sole defendant in a suit

for partition commenced by his siblings [the

respondents] in O.S. No.108/2016 on the file of the

Senior Civil Judge, Nanjangud [for short, 'the civil

Court'], has impugned the civil Court's order dated

03.04.2021. The civil Court by this impugned order has

allowed the respondents' application under Order XL

Rule 1 read with Section 151 of the Code of Civil

Procedure, 1908 [for short, 'the CPC'] opining that it

would be just and convenient to appoint a 'Receiver' to

oversee the management of the immovable properties

mentioned in the application by the respondents. The

civil Court has left it open to both the appellant and the

respondents to suggest the name of a person who could

be appointed and the terms of such appointment to be

considered later. This Court has granted interim stay

on 30.09.2021.

2. It is submitted in unison by the learned

counsel for the parties that the respondents' application

for appointment of 'Receiver' is filed after the

commencement of evidence, and with this Court's

interim order, which is only as against the impugned

order, the proceedings before the civil Court are stalled

without further progress.

3. The respondents have commenced the suit

for partition in O.S. No.108/2016 including agricultural

lands in Sy. Nos.84/1B, 84/2A, 88, 83/1 and 83 of

Mullur Village, Kasaba Hobli, Nanjangud Taluk, and

another parcel of land measuring 2 acres 10 guntas in

Sy. No.82 of Mullur Village, Hullahalli Nala Catchment

Area, Kasaba Hobli, Nanjangud Taluk. The respondents,

apart from the afore mentioned properties, have also

listed to two residential properties, which are described

as item Nos.5 and 6 in the plaint schedule, and their

application for appointment of a 'Receiver' is to oversee

and manage the agricultural properties first mentioned

above ['the subject properties'].

4. The respondents contend that the subject

properties were purchased by the deceased brother, Sri.

Vishwanath Prakash, who was in Government

employment and in fact, they contend that two out of

the four subject properties have been purchased with

the proceeds received from the sale of ancestral

properties. After the demise of Sri. Vishwanath

Prakash, the respondents and the appellant have

continued as joint owners. Smt. Nanjammanni, their

mother, has died on 03.07.2016. Insofar as the present

application, the respondents' case is that the appellant

is mismanaging the affairs and not rendering the

accounts.

5. On the other hand, the appellant has

resisted the suit, and the application, contending that

the respondents have suppressed material facts. He

asserts that family owned certain other agricultural

lands in Horalavadi Village, Kasaba Hobli, Nanjangud

Taluk. In terms of a family arrangement that has

prevailed inter se parties, he has relinquished all his

rights in the said properties. This is borne out by the

revenue records, and the allegations of mismanagement

are vague.

6. The civil Court has allowed the respondents'

application for appointment of 'Receiver' primarily

because the respondents, if they succeed in their suit,

would together be entitled to 75% and the appellant

would be entitled only for 25%. The appointment of a

'Receiver' would be just and proper as the respondents

could be entitled to a higher share. The civil Court has

referred to the appellant's case that certain properties

were owned by the family and relinquished by the

appellant in favour of the respondents, but it is obvious

that the civil Court has not assessed the rival claims.

7. The civil Court should have assessed the

merits of the application in the light of the indisputable

fact that if the respondents establish a case for

partition, they would be entitled for mesne profits.

Further, the civil Court should have considered this

aspect in the light of the appellant's specific defence

that he has always been in management of the

agricultural operations, including the subject properties

and the respondents have never managed the

agricultural operations. The respondents, even

according to the plaint cause title reside elsewhere. As

such, the appellant has made out a case for

interference.

8. The suit is pending for over five years, and

this Court has issued directions to the District Courts to

identify the matters which are pending for more than

five years and take necessary measures for expeditious

decision on merits. In terms of such directions, the civil

Court will have to identify the present suit for

expeditious disposal. The respondents and the

appellant must assist and co-operate with the civil

Court for such expeditious disposal. For the foregoing,

the following:

ORDER

[a] The appeal is allowed, and the

impugned order dated 03.04.2021 in O.S.

No.108/2016 on the file of the Senior Civil Judge,

Nanjangud is set-aside.

(b) The parties are called upon to co-

operate with the civil Court in expeditious disposal

of the suit and the suit, in all event, shall be

decided by the civil Court within an outer limit of

twelve [12] months from the date of receipt of a

certified copy of this order.

SD/-

JUDGE

AN/-