Karnataka High Court
Sri. Venkataswamy Reddy vs Smt. Girijamma on 16 February, 2024
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WP No. 22307 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 22307 OF 2021 (GM-CPC)
BETWEEN:
1. SRI. VENKATASWAMY REDDY
AGED ABOUT 64 YEARS,
S/O SRI CHINNAPPA REDDY,
R/O SADARAMANGALA VILLAGE,
KADUGODI POST,
BENGALURU - 560 067
2. SRI S C PILLA REDDY
AGED ABOUT 57 YEARS,
S/O SRI CHINNAPPA REDDY,
R/AT NO.99, C/O MUNIYAPPA REDDY,
MAHADEVAPURA VILLAGE AND POST,
BENGALURU - 560 048
...PETITIONERS
(BY SRI. MANJUNATHA R S.,ADVOCATE)
Digitally signed
by PAVITHRA N AND:
Location: high
court of 1. SMT. GIRIJAMMA
karnataka
W/O.LATE SRI GOPALA REDDY,
R/O.SADARMANGALA VILLAGE,
KADUGODI POST,
BENGALURU - 560 067
2. SRI CHINNAPPA REDDY
AGED ABOUT 85 YEARS,
S/O LATE SRI GURU REDDY,
R/O SADARAMANGALA VILLAGE,
KADUGODI POST,
BENGALURU - 560 067
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WP No. 22307 of 2021
(DIED LRS ON RECORD)
DIED ROUND OFF AS PER ORDER DATED 15.02.2024
3. SMT SHANTHAMMA
AGED ABOUT 59YEARS,
W/O LATE SRI THAYAPPA,
R/O.SADARMANGALA VILLAGE,
KADUGODI POST,
BENGALURU - 560 067
MR LOKESH REDDY V
4. AGED ABOUT 46 YEARS
RESIDING AT NO.468,
LAKSHMI NIVASA,
NEAR SKYLARK
SADARAMANGALA VILLAGE
KADUGODI POST
BENGALURU - 560 067
...RESPONDENTS
(BY SRI.G.B NANDISH GOWDA.,ADVOCATE FOR R1
SRI. D J GOVINDARAJU.,ADVOCATE FOR R3
SRI. SHARATH KUMAR SHETTY.,ADVOCATE FOR R4
R2 IS SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TOQUASH THE ORDER DATED
14.09.2021 IN RESPECT OF IA FILED BY THE R-3 HEREIN U/O XX
RULE 18(2) R/W SEC 151 OF CPC 1908 IN FDP NO.46/2015 AT
ANNEXURE-H PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE
BANGALORE RURAL DISTRICT BANGALORE IN FDP NO.46/2015 AND
ETC.,
THIS WRIT PETITION COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
Respondent Nos. 1 and 2 in FDP No.46 of 2015 on the file
of learned III Additional Senior Civil Judge, Bengaluru are
seeking issuance of writ of certiorari to quash the order dated
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14.09.2021 allowing IA No.1 filed under Order XX Rule 18(2)
read with Section 151 of CPC and modify the preliminary
decree dated 21.12.2013 passed in OS No.2814 of 2006.
2. Heard Sri. Manjunatha R.S, learned counsel for the
petitioners and Sri. G B Nandish Gowda, learned counsel for the
respondent No.1, Sri. D J Govindaraju, learned counsel for the
respondent No.3 and Sri. Sharath Kumar Shetty, learned
counsel for respondent No.4. Perused the materials on record.
3. Learned counsel for the petitioners contended that
the petitioners, as plaintiffs, filed the suit OS No.2814 of 2006
seeking partition and separate possession of the schedule
properties as the same were joint family properties. The said
suit was came to be decreed vide judgment and decree dated
21.12.2013 and accordingly, the preliminary decree was drawn.
It is held that the plaintiffs are entitled for 1/5th share of the
suit schedule properties and accordingly, the final decree was
drawn. Now the final decree proceedings have been initiated in
FDP No.46 of 2021. Respondent No.4 in the final decree
proceedings, who is respondent No.3 herein, filed an
application under Order XX Rule 18(2) of CPC seeking to modify
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the preliminary decree passed by the Trial court. The said
application was opposed by the petitioners since the
modification of the preliminary decree in the final decree
proceedings is not permitted.
4. Learned counsel submitted that none of the parties
to the suit have challenged the judgment and decree passed by
the Trial Court. There was no issue raised before the Trial Court
as to whether the sale by defendant Nos. 1 and 3 in favour of
defendant No.2 was for family necessity or not. On the other
hand, the issue No.3 was framed by the Trial court on the basis
of the pleadings of both the parties as to whether defendant
Nos. 2 and 3 prove that defendant Nos.1 and 3 alienated
Sy.No.38 measuring 19 guntas to defendant No.2 as their
share, as per the sale deed dated 08.02.2006. The Court after
considering the materials on record, answered this issue No.3
in the affirmative and decreed the suit of plaintiffs, awarding
1/5th share in the suit schedule properties. Under such
circumstances, respondent No.4 in the final decree proceedings
could not have sought modification of the preliminary decree,
that too after laps of seven years. The Final decree Court has
not taken into consideration all these facts and circumstances,
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but has proceeded to modify the preliminary decree without
any basis. Therefore, the impugned order is liable to be set
aside. Accordingly, he prays for allowing the petition and to
quash the impugned order in the interest of justice.
5. Sri. G B Nandish Gowda,learned counsel for
respondent No.1 and Sri. Sharath Kumar Shetty, learned
counsel for respondent No.4 submits that they have no
objection for allowing the petition.
6. Per contra, learned counsel for respondent No.3,
who is the contesting respondent submitted that the plaintiff
filed a suit for partition and separate possession in respect of 3
items of properties including the house property. Specific
contentions were raised by both the parties and issues were
also framed. When DW.1 was examined before the trial Court,
he categorically admitted that Gopal Reddy was having kidney
problem and defendant No.3 sold the property in question to
meet his medical expenses. The trial Court in it's reasoning
specifically referred to the said admission on part of DW.1 and
held that the alienation was for family necessity. But in the
operative portion it to execute that extent of land measuring 19
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guntas out of 1 acre 28 guntas in Sy.No.38 of Kumbena
Agrahara village which was sold for family necessity, from
partition. It is only an error and accidental omission, therefore,
the same can be corrected by the Final Decree Proceedings
Court. Accordingly, the trial Court proceeded to pass the order.
There is no illegality in the order impugned.
7. Learned counsel places reliance on the decision of
Hon'ble Apex Court in the case of S.Satnam Singh and
others Vs. Surender Kaur and another1 in support of his
contention. It is contended that even though under Section 97
of CPC, the parties aggrieved preferred the appeal against the
preliminary decree, the same would not be a bar to file the
application for amendment of the decree. He also places
reliance on the decision of the Hon'ble Apex Court in the case
of Kattukandi Edathil Krishnan and another Vs.
Kattukandi Edathil Valsan and others2 in support of his
contention that the final decree proceedings is the continuation
of suit and at any time the Final decree proceedings could be
initiated by any of the parties and under such circumstances,
2022 Live Law (SC) 549
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there is no bar for amending the preliminary decree by the FDP
Court.
8. He also places reliance on the decision of the
Hon'ble Apex Court in the case of Gouri Bewa Vs. Ari
Pradhan and others3 in support of his contention that when
the preliminary decree drawn was inconsistent with the finding
on the issue, the preliminary decree can be corrected. Placing
reliance on these decisions, learned counsel for respondent
No.3 prays for dismissal of the petition.
9. Admittedly, the plaintiff filed the suit for partition
and separate possession of 3 items of properties including a
house property. The defendants have taken specific contention
and on the basis of these pleadings specific issues were
framed. Issue No.3 reads as under:
prove that defendant Nos.1 and 3 alienated
Sy.No.38 measuring 19 guntas to defendant
No.2 as their share, as per sale deed dated
08.02.2006?"
AIR 1987 ORISSA 212
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10. The trial Court held discussions in detail and
answered issue No.3 in the affirmative holding that defendant
Nos.2 and 3 are successful in proving that defendant Nos.1 and
3 have alienated 19 guntas of land in Sy.No.38 to defendant
No.2 as their shares under the sale deed dated 08.02.2006.
Accordingly, the suit of the plaintiff was decreed declaring that
the plaintiff is entitled for 1/5th share in the suit schedule
property and defendants were directed to put the plaintiff in
separate possession. The said 1/5th share within 6 months.
11. Admittedly, neither the plaintiffs nor the defendants
have preferred any appeal impugning the preliminary decree.
In other words, both the plaintiffs and defendants were
satisfied with the preliminary decree passed by the trial Court.
The FDP No.46/2015 is pending before the Court seeking
drawing of final decree. In that proceedings, I.A.No.1 was filed
by respondent No.3 under Order 20 Rules 18(2) read with
Section 151 of CPC seeking modification of preliminary decree
passed in O.S.No.2814/2006.
12. As per the application, the preliminary decree
directing to effect partition of the suit schedule properties into 5
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shares among the plaintiffs and defendants to be modified to
effect partition after excluding 19 guntas of land in Sy.No.38 of
Kumbena Agrahara village and to answer issue No.3
accordingly. The affidavit filed in support of the application
refers to the observations made by the trial Court by referring
to the evidence of the parties with one Gopal Reddy was
suffering from Kidney problem and properties were sold by
defendant Nos.1 and 3 in favour of defendant No.2. Therefore,
it is the contention of respondent No.3 that the Court has
formed an opinion that the said sale of 19 guntas of land in
Sy.No.38 was for family necessity. Therefore, the same is to be
excluded from partition.
13. On perusal of the material on record, it is clear that
neither such contentions were raised in the pleadings nor there
was an issue with regard to the fact as to whether the sale of
19 guntas of land in Sy.No.38 was by defendant Nos.1 and 3 in
favour of defendant No.2 for family necessity. Nothing
prevented respondent No.3 seeking the Trial Court to frame the
specific issue in that regard and to have a finding. Issue No.3
as extracted above refers to proof of alienation of 19 guntas of
land in Sy.No.38 by defendant Nos.1 and 3 in favour of
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defendant No.2 as their shares as per the sale deed dated
08.02.2006. This issue makes it clear that the Court was
considering as to whether sale of 19 guntas of land in Sy.No.38
by defendant Nos.1 and 3 in favour of defendant No.2 as their
shares in the joint family property by no stretch of
imagination it could be said that the said issue would mean
to say that defendant Nos.1 and 3 have alienated the property
in favour of defendant No.2 for the family necessity. No such
contention was ever raised nor any issue was framed in that
regard. Under such circumstances, merely because the trial
Court referred to the evidence of DW.1 where it is stated that,
deceased Gopal Reddy was suffering from Kidney failure and
therefore it is to be held that the sale in question was for the
family necessity or that the trial Court has not referred to the
same in the operative portion and it was only an error or
accidental omission, cannot be accepted.
14. It is the settled position of law that once the
preliminary decree is passed by the trial Court it becomes
functus officio. Of course, if there is an apparent error or an
accidental omission in the preliminary decree, definitely that
could be corrected on the application made by any of the
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parties to the litigation and that will not give right to the FDP
Court to rewrite the judgment and give a finding on the
question now raised by the party which is disputed by the other
party when there was no such issue raised in the suit and no
finding was recorded while drawing the decree.
15. I have gone through the documents which are
referred to by the learned counsel for respondent No.3 that
none of the judgments are applicable to the facts and
circumstances of the present case. I have also gone through
the impugned order passed by the trial Court. The Court
proceeded to allow the application mechanically relying on the
decision of this Court in the case of Cheekanda Pushparatna
Chengappa Vs. Mr. Kodandera K Sudhakar and others4
holding that the modification now sought in the preliminary
decree is arising out of changed circumstances and therefore,
same is permissible. The Court proceeded to observe that, by
oversight 19 guntas of land was not excluded from partition
and therefore, it requires modification. In the preliminary
decree, the trial Court specified the share for which the
plaintiffs are entitled to. It has not specified the individual
2016(5) KCCR 1593
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share of the other defendants. When issue No.3 is specifically
answered in the affirmative to held that defendant Nos.1 and 3
have sold 19 guntas of land in Sy.No.38 in favour of defendant
No.2 as their share, FDP Court could definitely take the same
into consideration while determining the share of the
defendants.
16. In view of the discussions held above, I am of the
opinion that the petition is liable to be allowed. Accordingly, I
proceed to pass the following:
ORDER
(i) The writ petition is allowed.
(ii) Order dated 14.09.2021 passed in I.A.No.1
in FDP No.46/2015 on the file of the learned III
Additional Senior Civil Judge, Bangalore Rural District,
Bangalore vide Annexure-H is quashed.
Sd/-
JUDGE
SPV/SKS
