Karnataka High Court
Ritha @ Reetha vs Ahalya Singh on 15 March, 2022
Bench: R. Nataraj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE R. NATARAJ
R.S.A. NO.970 OF 2021 (PAR)
BETWEEN:
RITHA @ REETHA
W/O GANGADHAR,
AGED ABOUT 62 YEARS,
R/AT CHRISTIAN STREET,
TUMAKURU-572101.
...APPELLANT
(BY SRI. UMESH MOOLIMANI, ADVOCATE - THROUGH VC)
AND:
1. AHALYA SINGH
W/O K.S. SUNDAR SINGH,
AGED ABOUT 76 YEARS,
R/AT NO.101, 2ND MAIN,
SAMRUDHI ENCLAVE,
SUBRAMANYAPURA P.O.,
BENGALURU-560061.
2. LAVANYA LATHA
W/O LATE DAYAKAR FREDRICK,
AGED ABOUT 69 YEARS,
R/AT LAVANYA NILAYA,
2ND CROSS, LEFT SIDE,
NEW HOUSE, BHADRAVATHI-577301.
3. KIRAN @ JAYA NELVIN
S/O LATE DAYAKAR FREDRICK,
AGED ABOUT 42 YEARS,
R/AT LAVANYA NILAYA,
2ND CROSS, LEFT SIDE,
NEW HOUSE, BHADRAVATHI 577301
2
4. D. VIJAYA
S/O LATE DAYAKAR FREDRICK,
AGED ABOUT 40 YEARS,
R/AT LAVANYA NILAYA,
2ND CROSS, LEFT SIDE,
NEW HOUSE, BHADRAVATHI-577301.
5. SUJATHA
W/O BABU
AGED ABOUT 40 YEARS,
R/AT D NO.67, STELLA COLLEGE,
MYSURU-570008.
PREMA KRUPANANDA FREDRICK
SINCE DEAD BY HIS LEGAL HEIRS
6. MAMATHA
W/O PREMA KRUPANAND FREDRICK @ PREM DAS
AGED ABOUT 57 YEARS,
R/AT 'JAYADAS KRUPA'
NEAR SATHYAKANTHAMMA CHOULTRY
DEVANOOR ROAD, DEVANOOR,
TUMAKURU CITY-572101.
7. VINUKUMAR
S/O PREMA KRUPANAND FREDRICK @ PREM DAS
AGED ABOUT 38 YEARS,
R/AT 'JAYADAS KRUPA'
NEAR SATHYAKANTHAMMA CHOULTRY,
DEVANOOR ROAD, DEVANOOR,
TUMAKURU CITY-572101.
8. GEETHAPANA
S/O PREMA KRUPANAND FREDRICK @ PREM DAS
AGED ABOUT 36 YEARS,
R/AT 'JAYADAS KRUPA'
NEAR SATHYAKANTHAMMA CHOULTRY,
DEVANOOR ROAD, DEVANOOR,
TUMAKURU CITY-572101.
9. RAHUL
S/O RAJESH RAO @ PAUL RAJ
AGED ABOUT 37 YEARS
R/AT GAYATHRI NILAYA
3
5TH CROSS, 1ST MAIN,
ASHOKNAGAR,
TUMAKURU CITY-572101.
10. SARALA LATHA
W/O SYAJA
AGED ABOUT 57 YEARS,
D/O M. FREDRICK
R/AT NO.18/1, 17TH CROSS,
KANAKANAGAR, R.T. NAGAR,
BENGALURU-560052.
11. SWARNA KUMARI MITRA
W/O MITRA
D/O M. FREDRICK
AGED ABOUT 67 YEARS,
R/AT NO.18, GLASS BAZAAR
BELLARY-583102
...RESPONDENTS
THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 22.10.2021 PASSED RA.NO. 135/2019 ON THE
FILE OF THE VII ADDITIONAL DISTRICT JUDGE, TUMAKURU,
DISPOSING THE APPEAL AND CONFIRMING ORDER DATED
03.04.2019 PASSED IN FDP.NO.04/2010 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND CJM., TUMAKURU,
ALLOWING THE PETITION FILED BY THE PETITIONER FOR
DEMARCATION OF HER 1/6th SHARE IN THE SUIT SCHEDULE
PROPERTY AND FOR COST AND SUCH OTHER RELIEFS.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
4
JUDGMENT
This appeal is filed by respondent No.6 in F.D.P.
No.4/2010 challenging the order dated 03.04.2019 passed
therein by Principal Senior Civil Judge and CJM, Tumakuru
(hereinafter referred to as 'Final Decree Court') by which
the final decree Court directed auction sale of the suit
property and to distribute the same according to the
shares of the parties.
2. The parties shall henceforth be referred as
they were arrayed before the Trial Court.
3. A suit in O.S. No.27/1998 was filed for
partition and separate possession which was dismissed.
An appeal was preferred by the plaintiff before the First
Appellate Court in R.A. No.492/2004, which was allowed
and the suit filed for partition and separate possession was
decreed on 22.08.2009. It was declared that plaintiff was
entitled to 1/6th share in the suit schedule properties. The
plaintiff filed F.D.P. No.4/2010 to draw a final decree.
The final decree Court appointed a Commissioner to
partition the suit properties and the Commissioner
reported that the suit property is not partible. The
respondent No.6 filed an application to be impleaded in the
final decree proceedings claiming that she purchased the
suit property from defendants No.2 and 3 in the suit terms
of sale deeds dated 15.01.2001 and 18.09.2001.
4. The respondent No.6 filed objections to the
final decree. Consequently, an enquiry was conducted by
the Court. Based on the oral and documentary evidence,
the Final Decree Court held that the property is impartible
and hence ordered sale of the property by public auction
and to distribute the sale proceeds rateably. The final
decree Court held that the respondent No.6 was entitled to
2/6th share out of the sale proceeds.
5. Being aggrieved by the said order, the
respondent No.6 in F.D.P. No.4/2010 filed R.A.
No.135/2019. During the pendency of the First Appeal,
respondent No.6 filed an application under Order XLI Rule
27 of CPC. It was claimed that the father of the plaintiff
and defendants in O.S. No.27/1998 had alienated portion
of the suit property to Hemalatha Shanthappa on
18.09.1972 and therefore, she was a necessary party. The
First Appellate Court considered the submissions of the
learned counsel for respondent No.6 and in terms of its
order dated 22.10.2021, modified the order passed by the
final decree Court by excluding the property measuring 20
x 25 ft. that was alienated in favour of Hemalatha
Shanthappa.
6. Being aggrieved by the aforesaid order of the
First Appellate Court, the present Regular Second Appeal is
filed.
7. The learned counsel for appellant / respondent
No.6 in F.D.P. No.4/2010 submitted that the appellant had
purchased portion of the suit property which she
mortgaged in favour of Veerashaiva Co-operative Society,
Tumakuru and had thereafter constructed a building over
it. He contended that the Commissioner who was
appointed in the final decree did not report that the
respondent No.6 in F.D.P. No.4/2010 had put up
construction over the suit property and that therefore the
entire suit property may not be sold in public auction.
8. It is not in dispute that the respondent No.6 in
F.D.P. No.4/2010 / appellant herein had purchased portion
of the suit property during the pendency of the
proceedings before the Courts. Therefore, the respondent
No.6 / appellant herein was a purchaser pendente lite who
had no right except seeking for working out equity by
allotting the property purchased by her to the share of her
vendors. In the present case, the final decree Court has
held that the property is not divisible and therefore the
Court directed sale of the property excluding the property
sold to Hemalatha Shanthappa. It reserved right to all the
parties to participate in the public auction. The respondent
No.6 / appellant herein cannot gag the final proceedings
itself by claiming that she had purchased the property
during the pendency of the suit and had constructed a
building thereon. Under the circumstances, the final
decree Court as well as the First Appellate Court were
justified in not entertaining the request of respondent
No.6/ appellant herein.
9. In that view of the matter, no substantial
question of law arise for consideration in this appeal.
Hence, the appeal is dismissed.
10. It is, however, open for the appellant to
participate in the auction sale as directed by the First
Appellate Court in R.A. No.135/2019.
11. It is needless to mention that the appellant
would be entitled for his proportionate share out of the
sale proceeds as declared by the First Appellate Court in
R.A. No.135/2019.
Pending I.A., if any, does not survive for
consideration.
Sd/-
JUDGE
hnm
