Karnataka High Court
Smt Siddamma vs Sri B K Lokesha on 2 March, 2022
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.21639 OF 2021 (GM-CPC)
BETWEEN
1. SMT. SIDDAMMA
W/O LATE JAYADEVAPPA,
AGED 50 YEARS,
2. SRI MUNIRAJ
S/O LATE JAYADEVAPPA,
AGED 37 YEARS,
3. SRI ANANDA
S/O LATE JAYADEVAPPA,
AGED 35 YEARS,
PETITIONERS NO.1 TO 3 ARE
R/O BUGUDANAHALLI VILLAGE,
BELLAVI HOBLI,
TUMAKURU TALUK AND DISTRICT-572107
4. SMT. MANJAMMA
W/O KUMAR,
AGED 42 YEARS,
R/O YELIHUR VILLAGE,
SIRA TALUK,
TUMAKURU DISTRICT.
5. SMT. SAROJAMMA
W/O BASAVARAJU,
AGED 40 YEARS,
2
R/AT C/O GORAKAR KEMPANNA,
CHELUR VILLAGE,
GUBBI TALUK,
NOW AT C/O SIDDAMMA,
BUGADANAHALLI,
BELLAVI HOBLI,
TUMAKURU TALUK AND DISTRICT.
6. SMT KUMARI @ KANYAKUMARI
W/O NANDISHA,
AGED 34 YEARS,
VIJAYA UPAHARA,
SSIT MAIN ROAD,
MALURU, TUMAKURU TOWN
TUMAKURU TALUK AND DISTRICT-572101.
...PETITIONERS
(BY SRI M B CHANDRACHOODA, ADVOCATE)
AND
SRI B K LOKESHA
S/O B S KEMPANNANJAPPA
AGED 22 YEARS
R/O BUGUDANAHALLI VILLAGE,
BELLAVI HOBLI,
TUMAKURU TALUK AND DISTRICT-572107.
....RESPONDENT
(NOTICE TO RESPONDENT SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 08TH NOVEMBER, 2021 PASSED ON I.A.NO.5 FILED
UNDER SECTION 3 AND 6 OF THE PARTITION ACT READ WITH
SECTION 151 OF CPC IN FDP NO.24 OF 2019 ON THE FILE OF
THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
TUMAKURU, VIDE ANNEXURE-H AND ETC.,
3
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is preferred by the legal representatives
of the defendant No.7 in the suit OS No.24 of 2007 on the file of
the II Additional Senior Civil Judge and JMFC, Tumakuru
challenging the order dated 08th November, 2021 passed on IA.V
in Final Decree Proceedings NO.24 of 200 (Annexure-H).
2. Brief facts for adjudication of this writ petition are that
the respondent No.1 herein, who is the plaintiff in OS No.24 of
2007 on the file of the trial Court, filed suit seeking relief of
partition and separate possession of his half share in the suit
schedule property and the said suit came to be decreed in part.
The operative portion of the order reads as under:
"ORDERS
The suit of the plaintiff is hereby partly decreed
with costs.
The plaintiff is entitled for partition and separate
possession of his 1/3rd share out of 2.37½ / 18th share of
the deceased 2nd defendant in the suit schedule properties
by metes an bounds.
Since, the sale of suit schedule item No.2 property
in favour of the 7th defendant is not for family necessity
and benefit, the said sale transaction dated 05.08.2004 is
not binding on the share of the plaintiff in the suit
schedule properties. In the said facts and circumstances
and considering the pleadings of the 7th defendant and his
L.Rs while effecting the partition of the suit schedule
properties in terms of the aforesaid orders, the suit
schedule item No.2 property shall be allotted to the share
of defendants NO.3 to 5 under the principles of equity."
3. Thereafter, the plaintiff filed Final Decree Proceedings
No.24 of 2019 before the trial Court to execute the preliminary
decree passed in OS No.24 of 2007. In the said Final Decree
Proceedings, the petitioner/respondents 7(a) to (c) therein, filed
application under Section 3 and 6 of the Partition Act read with
Section 151 of the Code of Civil Procedure seeking allotment of
item No.2 to respondents 3 to 5 as per the judgment and decree
in OS No.24 of 2007 and the said application came to be
rejected by the trial Court by order dated 08th November, 2019.
Being aggrieved by the same, Legal representatives of defendant
No.7 have preferred this writ petition.
4. I have heard Sri M.B. Chandrachooda, learned counsel
appearing for the petitioners. Respondent served
unrepresented.
5. Sri Chandrachooda, learned counsel appearing for the
petitioner invited attention of the court to paragraph 5 of the
impugned order and submitted that the finding recorded by the
trial Court in Final Decree Proceedings with that of the finding
recorded by the trial Court on Additional Issue No.1 on 01st
December, 2018 is contrary to the factual aspects of the case
and therefore, he contended that the learned Judge in Final
Decree Proceedings cannot go beyond the judgment and decree
passed in the original suit and accordingly, he sought for
interference by this Court.
6. In the light of the submission made by the learned
counsel for the petitioners, I have carefully considered the
judgment and decree dated 12th December, 2018 passed in OS
No.24 of 2007. The judgment and decree stipulates that the
sale of schedule item No.2 in favour of defendant No.7 is not for
family necessities and benefit and accordingly, the trial Court
observed that while effecting partition of suit schedule property,
the schedule item No.2 shall be allotted to the share of
defendants 3 to 5. Looking into the judgment and decree
referred to above, the observation made by the trial Court in
Final Decree Proceedings passed in OS No.24 of 2019 is not
permissible under law and therefore, I am of the view that the
impugned order dated 08th November, 2021 is liable to be set
aside. Accordingly, it is set aside. The learned Judge in Final
Decree Proceedings No. 24 of 2019 is directed to reconsider the
application filed by respondents 7(a) to (c) afresh, after
affording an opportunity of hearing to all the parties and pass
appropriate orders in accordance with law. Hence, I pass the
following:
ORDER
1. Writ petition is allowed;
2. Order dated 08th November, 2021 is set aside
and matter is remanded to the Final Decree
Proceedings Court with a direction re-hear the
parties on IA.V and pass fresh orders, after
affording an opportunity of hearing to the
parties within an outer limit of six months from
the date of receipt of certified copy of this
Order.
Sd/-
JUDGE
lnn
