Karnataka High Court
Ningamma vs Smt Channaji on 5 December, 2023
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NC: 2023:KHC:43797
RSA No. 1472 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.1472 OF 2016 (RES)
BETWEEN:
NINGAMMA
AGED ABOUT 73 YEARS
W/O SHIVALINGAIAH
D/O LATE SMT.SAKAMMA
RESIDING AT
DOOR NO.2418
6TH CROSS, HOSABEEDI
K.G.KOPPAL
MYSURU - 570001
... APPELLANT
(BY SRI.G.BALAKRISHNASHASTRY, ADVOCATE FOR
Digitally SRI.B C RAJEEVA, ADVOCATE)
signed by
CHAITHRA A
AND:
Location:
HIGH
COURT OF 1. SMT.CHANNAJI
KARNATAKA AGED 42 YEARS
W/O B.K.RAVIKUMAR
D/O MARIYAPPA
RESIDING AT
D.NO.928, VIDYARANYAPURAM
INDUSTRIAL SUBURB
MYSURU - 570001
2. SMT. NAGAMMA
W/O BORAPPA
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RSA No. 1472 of 2016
TENANT IN A PORTION OF
D.NO.2418, 6TH CROSS
HOSABEEDI
K.G.KOPPAL
MYSURU - 570001
3. SMT.YASHODA
W/O JAVAREGOWDA
TENANT IN A PORTION OF
D.NO.2418
6TH CROSS, HOSABEEDI
K.G.KOPPAL
MYSURU - 570001
4. SMT.PUTTATAYAMMA
W/O MARISWAMY
TENANT IN A PORTION OF
D.NO.2418
6TH CROSS, HOSABEEDI
K.G.KOPPAL
MYSURU - 570001
5. SMT.MALLAJAMMA
W/O MARISWAMY
TENANT IN A PORTION OF
D.NO.2418
6TH CROSS, HOSABEEDI
K.G.KOPPAL
MYSURU - 570001
6. SMT.INDIRA
W/O DIWARAKA
TENANT IN A PORTION OF
D.NO.2418
6TH CROSS, HOSABEEDI
K.G.KOPPAL
MYSURU - 570001
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RSA No. 1472 of 2016
7. R.PRADEEP
S/O LATE H.R.RAMESH
AGED 37 YEARS
RESIDING AT NO.1449
C AND D BLOCK
SANJEVARI ROAD
KUVEMPUNAGARA
MYSURU - 570001
8. SHIVAKUMAR
S/O LATE KEMPEGOWDA
AGED 47 YEARS
RESIDING AT
KIRANGUR VILLAGE
SRIRANGAPATNA TALUK
MANDYA DISTRICT - 571401
9. S.K.N.VIDYA SAHAYA SANGHA
NO.446, SRI.SARASWATHI NILAYA
KEMPANANJAMMA AGRAHARA
K.R.MOHALLA
MYSURU - 570001
BY ITS AUTHORIZED OFFICE BEARER
10. K.MAHADEVA
S/O LATE KEMPARAMAIAH
AGED ABOUT 43 YEARS
RESIDING AT
NO.218, EWS
2ND STAGE, KUVEMPUNAGAR,
MYSURU - 570001
SMT. MARIYAMMA
DEAD BY LRS,
11. SRIKANTHA
S/O MADAIAH
AGED ABOUT 59 YEARS
RESIDING AT NO.2400
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RSA No. 1472 of 2016
6TH CROSS
K.G. KOPPAL
MYSURU - 570001
MAHADEV
DEAD BY LRS
12. SMT.BHAGYA
W/O LATE MAHADEV
AGED ABOUT 52 YEARS
13. SRI. HARISH
S/O LATE MAHADEV
AGED ABOUT 26 YEARS
14. SRI. GIRISH
S/O LATE MAHADEV
AGED ABOUT 25 YEARS
15. SRI. RAKESH
S/O LATE MAHADEV
AGED ABOUT 24 YEARS
DEFENDANT NOS.12 TO 15 ARE
RESIDING AT
NO.2403, 5TH CROSS
K.G.KOPPAL
MYSURU - 570001
16. MALLAJI
W/O MARISWAMY
AGED ABOUT 56 YEARS
RESIDING AT NO.31, 4TH CROSS
JAYANAGAR
MYSURU - 570001
17. SMT.JAYALAKSHMI
W/O MAHADEV
AGED ABOUT 52 YEARS
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RSA No. 1472 of 2016
RESIDING AT D.NO.234
4TH CROSS
JAYANAGAR
MYSURU - 570001
18. SMT. KUMARI
W/O UMESH
AGED ABOUT 52 YEARS
RESIDING AT D.NO.234
4TH CROSS
JAYANAGAR
MYSURU - 570001
19. LOKESH
S/O MADAPPA
AGED ABOUT 49 YEARS
RESIDING AT
NO.2588, 3RD CROSS
VALMIKE ROAD, VONTIKOPPAL
MYSURU - 570001
20. ANAND
S/O LATE OOTY SIDDEGOWDA
AGED ABOUT 49 YEARS
RESIDING AT
HULLUVADI VILLAGE
MANDYA TALUK
MANDYA DISTRICT - 571401
21. A.L.MAHESH
S/O LAKKEGOWDA
AGED ABOUT 51 YEARS
RESIDING AT NO.197
1ST MAIN, 11TH CROSS
ARAVINDANAGAR
MYSURU - 570001
22. S.DINESH
S/O B.A.SRINIVASAIAH
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RSA No. 1472 of 2016
AGED ABOUT 50 YEARS
RESIDING AT
ESW 3 E & F BLOCK
NEAR CHURCH
RAMAKRISHNANAGAR
MYSURU - 570001
23. M.A.SAMPATH
S/O ANAND ALVAR
AGED ABOUT 53 YEARS
RESIDING AT
NO.531, P & T BLOCK
MAHARSHI DAYANANDA
SARASWATHI ROAD
KUVEMPUNAGAR
MYSURU - 570001
24. N. PRABHAKAR
S/O NARASIMHA SHETTY
AGED ABOUT 54 YEARS
RESIDING AT
NO.3-173, 1ST STAGE
KUVEMPUNAGAR
MYSURU
25. SIDDARAMU H S
AGED ABOUT 50 YEARS
S/O LATE OOTY SIDDEGOWDA
RESIDING AT
NO.CH 142
8TH CROSS, 9TH MAIN
T.K.LAYOUT
MYSURU - 570001
REPRESENTED BY ITS
GPA HOLDER ANAND
AGED ABOUT 47 YEARS
S/O LATE OOTY SIDDEGOWDA
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RSA No. 1472 of 2016
HALLUVADI VILLAGE
MANDYA TALUK - 571401
...RESPONDENTS
(BY SRI. A RAVISHANKAR, ADVOCATE AND
SMT.H.C.LOKESHWARI, ADVOCATE FOR R.1;
SRI.N.R.GIRISH, ADVOCATE FOR R.9)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 30.06.2016 PASSED IN
R.A.NO.422/2014 ON THE FILE OF THE III ADDITIONAL DISTRICT
JUDGE AT MYSURU, DISMISSING THE APPEAL AND CONFIRMING
THE ORDER DATED 28.04.2014 PASSED IN FDP NO.2/2002 ON THE
FILE OF THE IV ADDITIONAL SENIOR CIVIL JUDGE AT MYSORE
AND ETC.
THIS APPEAL, COMING ON FOR PART HEARD IN
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Before I advert to the facts of the captioned
second appeal is confined only in respect of item No.2,
wherein the FDP Court has accepted feasibility report and
final decree is drawn thereby allotting entire alienated
share to defendant No.2, when defendant No.2 admittedly
has sold 53 guntas of land along with her mother -
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Sakamma i.e., defendant No.1 under registered sale deed
dated 17.08.1995.
2. For the sake of brevity, the parties are referred
as they are ranked before the Trial Court.
3. The genealogical tree of the plaintiff and
defendant Nos.1 and 2 is as under;
Dyavaiah
|
Sakamma (D.1)
_________________|________________
| |
Devamma (dead) Ningamma (D.2)
|
Channaji (Plaintiff)
4. The Trial Court taking cognizance of the
alienations made by Sakamma - defendant No.1 and
Ningamma - defendant No.2 in favour of respondent Nos.7
to 18 in the captioned second appeal and on account of
death of defendant No.1, proceeded to decree the suit
granting half share to the plaintiff and defendant No.2.
While drawing preliminary decree, Trial Court granted half
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share each to the plaintiff and defendant No.2, the Trial
Court has also taken cognizance of the alienations made
by defendant Nos.1 and 2 in favour of respondent Nos.7 to
18 in the captioned appeal.
5. The quantification done by the Trial Court and
consequent preliminary decree drawn by the Trial Court
has probably led to some ambiguity and confusion and
therefore, the Commissioner's report submitted by the
Court Commissioner indicating the mode of partition is
found to be patently erroneous and contrary to the
preliminary decree granted by the Trial Court granting half
share to defendant No.2.
6. Item No.2, which is an agricultural land
bearing Sy. No.229/1 totally measures 3 acres 38 guntas.
In terms of guntas, the entire extent works out to 158
guntas. Dyavaiah, who is the husband of defendant No.1,
is survived by a widow and two daughters. The mother -
defendant No.1 died during pendency of the suit. The Trial
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Court at para No.17 while dealing with issue Nos.4 and 5
has taken note of alienations made by defendant No.1 -
Sakamma and defendant No.2 - Ningamma. Taking
cognizance of death of defendant No.1, the Trial Court
granted half share each to Ningamma and the plaintiff -
Channaji, who is claming through the second daughter -
Devamma.
7. If defendant No.1 has alienated a portion of
property along with defendant No.2 - Ningamma, the
purchasers are entitled to succeed to the portion alienated
by defendant No.1 - Sakamma and defendant No.2 -
Ningamma. Both Ningamma and Sakamma have together
sold 53 guntas of land in item No.2 of the suit schedule
properties. The mother and two daughters were entitled
for 53 guntas each. If defendant Nos.1 and 2 together
have sold 53 guntas, defendant No.1 has retained 26½
guntas having alienated 53 guntas jointly with defendant
No.2. Defendant No.2 having alienated 26½ guntas has
equally retained remaining 26½ guntas. Therefore, the
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Court Commissioner is required to divide item No.2 i.e.,
Sy. No.229/1 in three parts. The portion purchased by the
transferees has to be carved out and defendant No.2, who
has retained 26 guntas and while plaintiff, who is entitled
for 52 guntas, will also inherit 26 guntas jointly with
defendant No.2. Therefore, remaining 26 guntas has to be
redistributed equally between defendant No.2 and the
plaintiff. Therefore, defendant No.2 - Ningamma will take
retained portion measuring 26 guntas and 13 guntas,
while the plaintiff will take 53 guntas and 13 guntas out of
Sakamma's share.
8. Therefore, the plaintiff is entitled for 65¾
guntas, while defendant No.2, who had retained 26
guntas, is entitled for 39¼ guntas. The plaintiff is entitled
for 65¾ guntas, while Transferee will take 53 guntas in
terms of the sale deed dated 17.08.1995. Therefore, the
Court Commissioner has to divide item No.2 in three parts
bearing in mind the equities of all the parties. However,
the Court Commissioner under the impugned final decree
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has allotted entire alienated portion to defendant No.2,
when defendant No.2 admittedly has sold only 26 guntas
out of his share. Therefore, the substantial question of
law formulated by this Court is answered in the
Affirmative. The concurrent judgments rendered by both
the Courts are liable to be set-aside.
9. In the light of the observations made supra, I
proceed to pass the following;
ORDER
(i) The Second Appeal is allowed.
(ii) The final decree drawn in FDP
No.2/2022 on the file of the IV
Additional Senior Civil Judge at
Mysuru and the judgment and decree
rendered in R.A.No.422/2014 on the
file of the III Additional District
Judge, Mysuru are hereby set-aside.
(iii) The FDP Court is hereby directed to
appoint a Court Commissioner and
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secure a fresh feasibility report and
while securing feasibility report, the
FDP Court shall direct the Court
Commissioner to carve out 53 guntas
purchased by the Transferee under
the registered sale deed dated
17.08.1996, the plaintiff's share
measuring 65¾ guntas and
defendant No.2's share to an extent
of 39¼ guntas.
Sd/-
JUDGE
NBM
