Karnataka High Court
T M Abdul Gani vs Late C Venkataraju S/O Late Channappa ... on 13 December, 2023
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RSA No. 1943 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 1943 OF 2023 (PAR/INJ)
BETWEEN:
1. T M ABDUL GANI
S/O T M ABDUL RAHMAN
AGED ABOUT 73 YEARS
R/AT NEW NO.474(OLD NO.91)
ANNA SALAI, MELVISHARAM
TAMILNADU STATE-632509
2. T M ABDUL JAMEEL
S/O T M ABDUL RAHMAN
AGED ABOUT 60 YEARS
R/A NO.8, MANIYALI STREET
MALVISHARAM
TAMILNADU-632509
Digitally
signed by ...APPELLANTS
ALBHAGYA
(BY SRI.S.SREEVATSA, SENIOR ADVOCATE FOR
Location:
HIGH SMT.JAYASREE NARASIMHAN, ADVOCATE)
COURT OF
KARNATAKA AND:
1. LATE.C.VENKATARAJU
S/O LATE CHANNAPPA
SINCE DECEASED BY HIS LRS
A S L GEETHA
W/O LATE C.VENKATARAJU
AGED ABOUT 66 YEARS
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RSA No. 1943 of 2023
B V KAMALA
D/O LATE C VENKATARAJU
AGED ABOUT 42 YEARS
C. V HARISH
D/O LATE C VENKATARAJU
AGED ABOUT 43 YEARS
RESPONDENT NOS.1(A) TO 1(C)
ARE R/AT NO.423, 5TH CROSS
NAGENAHALLI MAIN ROAD
SHIVASHANKARA BLOCK (NOW 2ND CROSS)
S B LAYOUT, HEBBAL
BENGALURU-560 024
2. LATE. C RAMAKRISHNA
S/O LATE CHANNAPPA
SINCE DECEASED BY HIS LRS
A RATHNAMMA
W/O LATE C RAMAKRISHNA
AGED ABOUT 70 YEARS
B. R SRINIVAS
S/O LATE C RAMAKRISHNA
AGED ABOUT 46 YEARS
R/AT NO.63, BOMMAVARA MAIN ROAD
AKKUPET, DEVANAHALLI TOWN
BENGALURU RURAL DISTRICT-562110
3. YASHODAMMA
W/O LATE C.VENKATARAMAPPA
AGED ABOUT 71 YEARS
4. RAVIKUMAR
S/O LATE C VENKATARAMAPPA
AGED ABOUT 50 YEARS
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RSA No. 1943 of 2023
5. SHANKAR
S/O LATE C VENKATARAMAPPA
AGED ABOUT 42 YERS
RESPONDENT NOS.3 TO 5
ARE R/AT NO.68
BOMMAVARA MAIN ROAD
AKKUPET, DEVANAHALLI TOWN
BENGALURU RURAL DISTRICT-562110
6. LATE C. BHEEMANNA
S/O LATE CHANNAPPA
SINCE DECEASED
BY HIS LRS
A CHANDRAKANTHAMMA
W/O LATE C BHEEMANNA
AGED ABOUT 69 YEARS
B PRABHAVATHI
D/O LATE C BHEEMANNA
AGED ABOUT 40 YEARS
C SHOBHA
D/O LATE C BHEEMANNA
AGED ABOUT 39 YEARS
D RAKSHITH
S/O LATE C BHEEMANNA
AGED ABOUT 38 YEARS
E SOWMYA
D/O LATE C BHEEMANNA
AGED ABOUT 36 YEARS
F USHA
D/O LATE C BHEEMANNA
AGED ABOUT 35 YEARS
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RSA No. 1943 of 2023
RESIDING AT
NO.1434, 17TH B MAIN
J P NAGAR, 2ND PHASE
BENGALURU-560078
7 LATE C.LAKSHMANA
S/O LATE CHANNAPPA
SINCE DECEASED BY HIS LRS
A. JAYALAKSHMAMMA
W/O LATE C LAKSHMANA
AGED ABOUT 67 YEARS
B CHANDRAKALA L
D/O LATE C LAKSHMANA
AGED ABOUT 49 YEARS
C MANJUNATHA L
S/O LATE C LAKSHMANA
AGED ABOUT 47 YEARS
D PRAKASH L
S/O LATE C LAKSHAMANA
AGED ABOUT 35 YEARS
ALL ARE R/AT NO.63
BOMMAVARA AIN ROAD
AKKUPET, DEVANAHALLI TOWN
BENGALURU RURAL DISTRICT-562110
8. C.NARAYANASWAMY
S/O LATE CHANNAPPA
AGED ABOUT 73 YEARS
R/AT NO.63, BOMMAVARA MAIN ROAD
AKKUPET, DEVANAHALLI TOWN
BENGALURU RURAL DISTRICT-562110
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RSA No. 1943 of 2023
9. RINKU DESHPANDE
W/O NEELESH DESHPANDE
AGED ABOUT 46 YEARS
R/A NO.79/19, E CASA ORCHARD
8TH MAIN, 8TH CROSS
R.M.V EXTENSION
SADASHIVANAGAR
BENGALURU-560080
10. C. SAROJA
D/O LATE CHANNAPPA
W/O MUNIYALLAPPA
AGED ABOUT 60 YEARS
R/AT NO.762, 14TH CROSS
35TH MAIN, J.P.NAGAR
1ST PHASE, BENGALURU-560078
11. C.RAJALAKSHMI
D/O LATE CHANNAPPA
W/O M.SATYANARAYANA
AGED ABOUT 65 YEARS
R/A NO.270, 74TH CROSS
KUMARASWAMY LAYOUT, I STAGE
BENGALURU-560078
12. PREM KAUR
W/O NIRMAL SINGH BHANGOO
AGED ABOUT 66 YEARS
PRESENTLY R/AT FARM NO.2
CREATIVE FARM
NEAR PARKLAND RETREAT
SILVER OAK LANE SATBERI
SOUTH DELHI-110074
13. VENKATESH MUTTA
S/O KRISHNARAO MUTTA
AGED ABOUT 48 YEARS
R/A NO.2138
PHASE VILLAGE
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RSA No. 1943 of 2023
MOHALI CHANDIGARH
ALSO R/AT NO.C-7, 2ND FLOOR
VIKASPURI
NEW DELHI
...RESPONDENTS
(BY SMT.S.K.NAGARATHNA, ADVOCATE FOR C/R.1(C))
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 11.08.2023 PASSED IN
RA NO.15032/2022 PASSED IN V ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BENGALURU RURAL, SITTING AT
DEVANAHALLI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 06.02.2015 PASSED IN
O.S.NO.932/2006 ON THE FILE OF SENIOR CIVIL JUDGE AND
JMFC., DEVANAHALLI AND ETC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the 3rd
pendente-lite purchasers assailing preliminary decree
drawn by the Court in O.S.No.932/2006, wherein plaintiff's
suit for partition and separate possession is decreed
granting 1/10th share together and defendant Nos.5, 9
and 10 are held to be entitled for 1/10th share.
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2. The Trial Court, taking cognizance of the
alienations pending suit, has also protected rights of the
purchasers by recording a finding that 4/10th share of
defendant Nos.1 to 4, 6 and 7 shall be allotted to
defendant No.11 - purchaser.
3. Heard learned Senior Counsel appearing for
the appellants and learned counsel appearing for the
defendants.
4. The short point that needs consideration at the
hands of this Court is;
As to whether present appellants,
who are pendente-lite purchasers during
pendency of the final decree proceedings,
can question the preliminary decree drawn
by the Court in O.S.No.932/2006?
My answer is emphatically no.
5. Though learned Senior Counsel tried to
persuade this Court by contending that suit filed by the
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plaintiff is in collusion with defendant Nos.1 to 7, I am not
inclined to accede to the said argument. It is also borne
out from the records that the plaintiff has instituted suit on
31.08.2005. The first sale is by defendant Nos.1 to 4, 6
and 7 on 02.04.2008 in favour of defendant No.8. The
above said sale transaction was admittedly made during
pendency of the suit. Defendant No.8, in turn, has sold
the property in favour of defendant No.11 under registered
sale deed dated 17.12.2009. Defendant No.11, in turn,
has sold the property to the present appellants during the
pendency of the final decree proceedings. It is a trite law
that pendente-lite purchaser has no voice in a partition
suit.
6. Be that as it may, the operative portion of the
judgment rendered by the Trial Court has clearly protected
the rights of the pendente-lite purchasers. The sale deeds
obtained by pendente-lite purchasers namely defendant
Nos.8 and 11 and the present appellants will be subject to
out come of the decree that would be passed in a partition
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suit. If the vendor of the appellants herein is jointly
allotted 4/10th share, which is evident from the operative
portion of the decree passed in O.S.No.932/2006, no
serious prejudice is caused and therefore, the present
appellants, who are tracing their right through defendant
No.11, whose rights are protected by the Trial Court, have
no locus to question the preliminary decree. The theory of
collusion as narrated by the learned Senior Counsel cannot
be entertained as these alienations are made subsequent
to filing of the suit and therefore, I am not inclined accede
to the theory of collusion set up by the learned Senior
Counsel.
7. The Appellate Court, while dismissing the
appeal, has also protected rights of the appellants herein.
The appellants are relegated to work out their equitable
rights in the pending final decree proceedings. If such a
liberty is reserved, nothing survives for consideration.
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Therefore, no substantial question of law arises
for consideration in this appeal.
In the light of the liberty reserved by the
Appellate Court, it is open for the appellants herein to
appear before FDP Court in the final decree proceedings
and seek allotment of 4/10th share that was agreed to be
allotted to defendant No.11 and subsequent purchasers.
With these above observations, the second appeal
is dismissed.
I.A.No.1/2023 and 2/2023 do not survive for
consideration and accordingly, they are dismissed.
Sd/-
JUDGE
NBM
