Karnataka High Court
Sri S Bhaskar Das vs Smt R Shankari Rathinam on 6 February, 2024
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NC: 2024:KHC:5105
WP No. 26845 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 26845 OF 2017 (GM-CPC)
BETWEEN:
SRI. S. BHASKAR DAS
S/O LATE SUBRAMANI
SINCE DECEASED
REPRESENTED BY HIS L.RS.
1. SMT. M. ABIRAMI
W/O. LATE BHASKER DAS
AGED ABOUT 54 YEARS
2. SRI. S.B. BHAGATH
S/O. LATE BHASKER DAS
AGED ABOUT 28 YEARS
Digitally signed
by PAVITHRA N 3. SRI. S.B. GOUTHAM
Location: high S/O LATE BHASKER DAS
court of
karnataka AGED ABOUT 26 YEARS
ALL ARE RESIDING AT NO.8/A
1ST MAIN, 1ST CROSS
HANUMANTHANAGAR
BANGALORE - 560 019.
...PETITIONERS
(BY SRI: JAVEED .S., ADVOCATE)
AND:
1. SMT. R. SHANKARI RATHINAM
AGED ABOUT 62 YEARS
W/O RATHINAM, R/AT NO.119-A
OM SHANTHI STREET, VALLALUR
NAGARA, GUDIYATTAM.
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WP No. 26845 of 2017
2. K.G. KIRUPAVATHI
W/O ASHOK PRABHU
D/O SAROJA
AGED ABOUT MAJOR
R/AT NO.25, 2ND BLOCK
3RD CROSS, SRI. M.V.NAGAR
OPP. KOSHI'S HOSPITAL
RAMA MURTHY NAGAR
BANGALORE - 560 036.
3. LALITHA WILSON
D/O SAROJA
AGED ABOUT MAJOR
R/AT NO.45/4, CHYDIA BLOCK
NEAR SIDDARTHA SCHOOL
1ST CROSS, R.T. NAGAR
BANGALORE - 560 032.
4. SRI. K.G. AKILAN
S/O SAROJA
AGED ABOUT MAJOR
WORKING IN P.W.D. DEPARTMENT
CENTRAL RAILWAY, GOREPURE
PUNE - 721 301.
5. SRI. A. KUMARAN
S/O SARASWATHI
AGED ABOUT MAJOR
C/O MOHANAMMAL
NO.98, 1ST LINE, KENADIES
OORGAUM POST, K.G.F. - 563 122.
6. SMT. KAMALESHWARI
AGED ABOUT 44 YEARS
W/O VISHNUKUMAR
NO.25, SRI. M.V. NAGARA
OPP. KOSHY'S HOSPITAL
RAMAMURTHY NAGAR
BANGALORE - 560 036.
7. SMT. LILLY
AGED ABOUT 35 YEARS
R/AT NO.8, OLD MILL BLOCK
NANDY DRUG MINES
OORGAM POST, K.G.F. - 563 122.
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WP No. 26845 of 2017
8. SMT. NITYA
W/O SARAVANAN
AGED ABOUT 27 YEARS
R/AT NO.171, NEW STREET
SANDAVORE TO KUPPAM
AMBUR.
9. SRI. BHASKARAN
S/O LATE SUBRAMANI
AGED ABOUT 47 YEARS
SINCE DIED HIS LEGAL HEIRS
A) AMUDA VANI
W/O BHASKARAN
AGED ABOUT 50 YEARS
B) DEEPIKA
D/O BHASKARAN
AGED ABOUT 18 YEARS
C) SUNIL
S/O BHASKARAN
AGED ABOUT 17 YEARS
REP BY HIS MOTHER AMUDA VANI
ALL RE R/AT NO.8/A (OLD NO.17)
1ST CROSS, 1ST MAIN
HANUMANTHAPURA, SRIRAMPURAM
BANGALORE - 560 021.
10. SMT. POONGADHI
W/O MADDHIVANNAN
AGED ABOUT 45 YEARS
R/AT ASHOKNAGAR
SEDDUKERI POST
GUDIYATTAM.
...RESPONDENTS
(BY SRI: SYED AKBAR PASHA, ADVOCATE FOR R10
R1 TO 8 - D/W - V/O DT.9/1/18
R9(C) - MINOR & REPRESENTED BY MOTHER R9(A))
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
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WP No. 26845 of 2017
IMPUGNED ORDER DATED 21.1.2015 PASSED IN F.D.P NO.129/2010
PENDING BEFORE THE XXXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BANGALORE CCH.39 PRODUCED AT
ANNEXURE-C AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
- B GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The legal representatives of plaintiff No.1 in OS No.5965
of 2006 on the file of the learned XXXVIII Additional City Civil
and Session Judge at Bengaluru City, (CCH-39), are impugning
the order dated 21.01.2015 passed in FDP No.129 of 2010
rejecting the claim of petitioner-plaintiff No.1 seeking direction
against the respondents to sell their share in his favour and
ordering to hold a public auction of the suit property with
permission to petitioner-plaintiff No.1 and the respondents to
participate in such public auction.
2. Heard Sri Javeed S., learned counsel for the
petitioners and Sri Syed Akbar Pasha, learned counsel for
respondent No.10. Notice to other respondents is dispensed
with vide order dated 09.01.2018. Perused the materials on
record.
3. Learned counsel for the petitioners submitted that
the original plaintiff No.1 has filed the suit OS No.5965 of 2006
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seeking partition and separate possession. Immediately,
defendant No.1 filed the suit OS No.6780 of 2006 seeking
similar relief of partition and separate possession in respect of
the very same property. Therefore, both the suits were clubbed
together and were decreed vide judgment and decree dated
20.07.2009. After decreeing the suits, plaintiff No.1 has
purchased the share of four other sharers and thereby, plaintiff
No.1 was entitled for 5/7th share in the suit property. Only
respondent Nos.9 and 10 were the contesting respondents who
were entitled for 2/7th share together.
4. Learned counsel submitted that during the
pendency of this writ petition, respondent No.10 sold her 1/7th
share in favour of plaintiff No.1 and thus, now it is only
respondent No.9 who is the contesting respondent who is
having 1/7th share in the suit property, whereas plaintiff No.1 is
having 6/7th share.
5. Learned counsel submitted that the suit property is
a site with building bearing No.17, New No.8/A, situated in the
heart of Bengaluru city, measuring 25 x 22½ feet. Since the
petitioners are having major portion of the share in the suit
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property and since they are in possession and enjoyment of the
house property, they have sought for a direction to the
respondents to sell their share in favour of the petitioners. The
said prayer was rejected by the Trial Court. On the other hand,
the order passed by the Trial Court will prejudice the right of
the petitioners, since it is a house property, where the
petitioners are residing. Therefore, he prays for allowing the
petition and to set aside the impugned order.
6. Learned counsel for the petitioners submitted that
they have no objection for appointment of Court Commissioner
or to hold an auction amongst the petitioners and respondent
No.9 who are the only sharers in the suit property.
Accordingly, he prays for passing appropriate orders.
7. Learned counsel for respondent No.10 submits that
respondent No.10 has already relinquished her share over the
schedule property in favour of plaintiff No.1. Hence, there is no
objection to pass necessary orders in favour of the petitioners.
8. The original plaintiff filed the suit OS No.5965 of
2006. The said suit was clubbed with OS No.6780 of 2006 filed
by defendant No.1 for similar relief for partition and separate
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possession. It is not in dispute that both the suits came to be
decreed vide judgment and decree dated 20.07.2009. Plaintiff
No.1 was allotted with 1/7th share, while defendant No.1 was
allotted with 1/7th share. The other parties are also granted
equal shares.
9. It is the contention of the petitioners that they have
purchased the share of other defendants and thus they are
entitled for 6/7th share in the schedule property, whereas, it is
only respondent No.9, who is the plaintiff in OS No.6780 of
2006 who was defendant No.1 in OS No.5965 of 2006 who is
having 1/7th share and is the contesting respondent.
Respondent No.9 herein has not appeared before the Court in
spite of service of notice. However, the subject matter of the
suit and the final decree proceedings is the site with residential
house measuring 25 x 22½ feet. According to the petitioners,
they are in occupation of the residential house standing therein
and they are entitled for 6/7th share in the same. The
contesting respondent i.e., respondent No.9 is entitled for 1/7th
share. There is absolutely nothing on record to disbelieve the
version of the petitioners.
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10. I have gone through the impugned order passed by
the Trial Court. It has rejected the claim of plaintiff No.1 for a
direction against the respondents to sell their share in his
favour. Ofcourse, rejecting of the said claim of plaintiff No.1 is
justified by the final decree Court. However, the Court
proceeded to order for bringing the schedule property for public
auction. Since the property in question is a residential house
which was said to be in possession of the petitioners, I am of
the opinion that holding public auction may not be in the best
interest of either petitioners or respondent No.9. Therefore, I
am of the opinion that the impugned order is liable to be
interfere with.
12. Under such circumstances, I deem it proper to
direct the Trial Court to hold an auction amongst the petitioners
and respondent No.9 giving them an option to bid to purchase
the schedule property and the highest bidder will be entitled to
retain the property.
13. Accordingly, I proceed to pass the following:
ORDER
(i) The writ petition is allowed in part.
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(ii) The order dated 21.01.2015 passed in FDP No.129
of 2010 on the file of the learned XXXVIII Additional City Civil
and Session Judge at Bengaluru City, (CCH-39), rejecting the
prayer of plaintiff No.1 for direction against the respondents to
sell their share in his favour is confirmed. However, order to
bring the schedule property for sale through pubic auction is
set aside. On the other hand, the Trial Court is directed to bring
the schedule property for sale between the sharers i.e.,
petitioners and respondent No.9 and the highest bidder will be
entitled to retain the property.
Sd/-
JUDGE
*bgn/-
