Karnataka High Court
Sri. Mohaboob Sab vs Smt. Shataj Begum on 10 January, 2024
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RSA No. 627 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.627 OF 2019 (PAR)
BETWEEN:
SRI. MOHABOOB SAB
S/O LATE BASHA SAAB
SINCE DEAD BY HIS
LEGAL REPRESENTATIVES
(A) SMT.SHATAJ BEGUM
W/O AHMED
D/O LATE MAHABOOB SAB
AGED ABOUT 34 YEARS
RESIDING AT
DIAMONDAHALLI
PARANDAHALLI POST
Digitally KGF LAYOUT
signed by KOLAR - 563 114
ALBHAGYA
Location: (B) IBRAHIM BABA
HIGH
COURT OF S/O LATE MAHABOOB SAB
KARNATAKA AGED ABOUT 30 YEARS
RESIDING AT
BUDHIKOTE VILLAGE AND POST
BANGARPETE TALUK
KOLAR - 563 114
(C) SMT.KHAMAR TAJ
W/O CHANU
D/O LATE MAHABOOB SAB
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RSA No. 627 of 2019
AGED ABOUT 28 YEARS
RESIDING AT
RAYASANDRA VILLAGE
BUDHIKOTE HOBLI
BANGARPETE TALUK - 563 114
(D) WASEEM PASHA
S/O LATE MAHABOOB SAB
AGED ABOUT 26 YEARS
RESIDING AT
BUDHIKOTE VILLAGE AND POST
BANGARPETE TALUK
KOLAR - 563 114
...APPELLANTS
(BY SRI.A.RAVISHANKAR, ADVOCATE FOR
SRI.KARTHIK V, ADVOCATE)
AND:
SMT. SHATAJ BEGUM
W/O LATE IQBAL PASHA
D/O LATE BASHA SAB
SINCE DEAD BY HER
LEGAL REPRESENTATIVES
(A) SMT.SHEIK GULNAZ
W/O SHEIK AFROZ
AGED ABOUT 38 YEARS
(B) RAFIQ PASHA
S/O LATE IQBAL PASHA
AGED ABOUT 36 YEARS
(C) SHABANA FIRDOSE
D/O LATE IQBAL PASHA
AGED ABOUT 35 YEARS
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RSA No. 627 of 2019
(D) IBRAHIM SULTAN
S/O LATE IQBAL PASHA
AGED ABOUT 33 YEARS
(E) SALEEM JAVEED
S/O LATE IQBAL PASHA
AGED ABOUT 31 YEARS
ALL ARE RESIDING AT
NO.665, DR.B.R.AMBEDKAR ROAD
TIPPUNAGAR, BANGARPETE TOWN
KOLAR DISTRICT - 563 114
...RESPONDENTS
(BY SRI.G.KRISHNAMURTHY, SENIOR COUNSEL
FOR SRI.DARSHAN R, ADVOCATE FOR R.1(A TO E))
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 04.01.2019 PASSED IN
RA.NO.58/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND PRINCIPAL JMFC, KGF, C/C ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, KGF, DISMISSING THE APPEAL AND
CONFIRMING THE ORDER DATED 28.04.2017 PASSED IN
FDP NO.1/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
AND JMFC, BANGARPET ALLOWING THE PETITION FILED
UNDER SECTION 54 R/W UNDER ORDER XX RULE 18 OF CPC
FOR PARTITION AND ETC.
THIS APPEAL, COMING ON FOR PART HEARD IN
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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RSA No. 627 of 2019
JUDGMENT
The captioned second appeal is filed by defendant
No.1 assailing the judgment rendered by the Appellate
Court in R.A.No.58/2017, wherein the Appellate Court,
while acting on the feasibility report submitted by the
Commissioner, has proceeded to allot Block-II to plaintiff
No.1. Feeling aggrieved by allotment of Block-II to
plaintiff No.1, defendant No.1 has filed this captioned
second appeal.
2. For the sake of brevity, the parties are referred as
they are ranked in O.S.No.285/2011.
3. Facts leading to the case are as under;
Respondent herein namely Smt.Shataji Begum, who
is arrayed as plaintiff No.1, along with her sister namely
Smt.Parveen Taj, who is arrayed as plaintiff No.2, have
instituted a suit in O.S.No.285/2011 feeling aggrieved by
the alienation made by defendant No.1, who is the brother
of plaintiffs, in favour of defendant Nos.2 and 3. The
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plaintiffs, who are sisters of defendant No.1, instituted a
partition suit and claimed their legitimate share in the suit
schedule properties.
4. Pending suit, defendant No.1, who is brother of
plaintiffs, tendered appearance and agreed for amicable
settlement and in terms of mutual agreement, a
compromise was recoded by filing a joint compromise
petition under Order 23 Rule 3 read with Section 151 of
CPC. In terms of compromise, defendant No.1 agreed to
give 34 guntas to plaintiff No.1 as well as plaintiff No.2
and the same is indicated in para No.3 of the compromise.
Based on the compromise decree, plaintiff No.1 initiated
final decree proceedings in FDP No.1/2013. The FDP Court
appointed a Court Commissioner, who in terms of the
memo of instructions, visited spot and submitted a
feasibility report. The FDP Court, by taking cognizance of
the feasibility report, however, strangely proceeded to
draw final decree without allotting any specific share as
indicated by the Court Commissioner. This compelled
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plaintiff No.1 to prefer an appeal in R.A.No.86/2017.
Defendant No.1 also filed an independent appeal in
R.A.No.58/2017. The Appellate Court having examined
rival contentions proceeded to allot Block-II to the share of
plaintiff No.1 and accordingly, final decree was drawn by
the Appellate Court by judgment and decree dated
04.01.2019. The appeal filed by plaintiff No.1 in
R.A.No.86/2017 was allowed and consequently, the appeal
preferred by defendant No.1 in R.A.No.58/2017 was
dismissed.
5. The present second appeal is filed by defendant
No.1 assailing the judgment and decree rendered in
R.A.No.58/2017, while defendant No.1 has not chosen to
question the judgment and decree rendered in
R.A.No.86/2017.
6. Heard learned counsel appearing for defendant
No.1 and learned Senior Counsel appearing on behalf of
plaintiff No.1.
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7. Before I advert to examine findings recorded by
the Appellate Court while accepting the Commissioner's
Report, this Court needs to examine para No.3 of the
compromise petition tendered in O.S.No.285/2011,
wherein defendant No.1 agreed to give up 34 guntas in
favour of plaintiff Nos.1 and 2 jointly. Under para No.4,
the plaintiffs have given up their rights insofar as
alienations made by defendant No.1 in favour of defendant
Nos.2 and 3, which are referred as 'B' and 'C' schedule
properties. Therefore, it would be useful for this Court to
cull out relevant paragraphs of the joint compromise
petition. Para Nos.3 and 4 of the joint compromise petition
reads as under;
"3. It is submitted that as per the terms of
the compromise, the plaintiffs agreed to take 0-
34 guntas out of total extent in Schedule-A
property, bounded on the East by: Rajagopal's
property, West by: Road, North by:
Venkataramappa's property and South by:
remaining extent in the same number sold to
Chandrashekar Reddy, M.R.Setty's property and
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to give-up remaining extent to the defendant
No.1. The 1st defendant also mutually agreed
for the same.
4. It is submitted that as per the terms of
the compromise, the plaintiffs have mutually
agreed that the sale deeds dated 26.09.2011
executed by defendant No.1 in favour of
defendant Nos.2 and 3 in respect of Schedule B
and C properties are binding on them and they
are relinquishing their rights over the said
properties and in future they will not claim any
right over the said properties."
8. On examining para No.3 of the joint compromise
petition, defendant No.1 voluntarily agreed to allot
34 guntas to plaintiff Nos.1 and 2. Therefore, plaintiff No.1
is entitled for 17 guntas. Based on the compromise
decree, plaintiff No.1 alone initiated final decree
proceedings in FDP No.1/2013. The Court Commissioner
has submitted feasibility report and sketch is furnished
indicating that 34 guntas is divided into two parts.
However, FDP Court, without allotting specific portions as
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indicated by the Commissioner, proceeded to draw final
decree.
9. Plaintiff No.1 preferred an appeal in
R.A.No.86/2017. Plaintiff No.2 strangely did not opt to
contest final decree and she did not prefer any appeal
against final decree drawn in FDP No.1/2013. Defendant
No.1, however, not only contested the Commissioner's
Report by filing objection but also questioned the final
decree by filing an appeal in R.A.No.58/2017, which is the
subject matter of the present captioned second appeal.
10. Now, in terms of the compromise arrived at
between the parties, this Court is of the view that
defendant No.1 has no locus to question the acceptance of
feasibility report by the Appellate Court while allowing the
appeal filed in R.A.No.86/2017. Though learned counsel
appearing for defendant No.1 did make an attempt by
contending that defendant No.1 has purchased share of
plaintiff No.2 under registered document, no such
contention is either taken pending consideration of the
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final decree proceedings nor those documents were
produced while preferring an appeal in R.A No.58/2017.
Therefore, I do find some force in the submission made by
the learned Senior Counsel appearing for the 1st plaintiff
that defendant No.1 having agreed under compromise and
having allotted 34 guntas jointly to plaintiff Nos.1 and 2,
has no locus to question the feasibility report.
11. If the decree passed in R.A.No.86/2017 is not
challenged by defendant No.1, wherein the Appellate Court
has accepted feasibility report and Block II measuring 17
guntas is allotted to the share of plaintiff No.1, even on
this count, defendant No.1 has no locus to question the
final decree drawn by the Appellate Court while allowing
the appeal filed in R.A.No.86/2017.
12. When a question was posed to the learned
counsel appearing for defendant No.1 as to whether while
entering into compromise the plaintiffs were allotted share
what was they were legally entitled to, both learned
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counsel on record fairly submit that on account of
compromise, plaintiff Nos.1 and 2 have taken lesser share
than what they were legally entitled to. Therefore, what
emerges from the records is that defendant No.1 as a
brother has retained larger share. It is also borne out
from the records that defendant No.1 has sold a portion of
the suit schedule property to defendant Nos.2 and 3.
Therefore, it is in this background, even if defendant No.1
claimed that he has purchased the share of plaintiff No.2,
he cannot be permitted to agitate and contest final decree
proceedings. Merely because he steps into the shoes of
plaintiff No.2, if on account of compromise, plaintiff No.1
has taken lesser share, by way of equity, plaintiff No.1 has
preferential right to take up the portion of her choice.
If plaintiff No.1 has requested the Court to allot Block-II
and the Court on examining the Commissioner's Report
exercising discretion has allotted Block II to plaintiff No.1,
defendant No.1 by tracing right through plaintiff No.2
cannot go on litigating and denying the fruits of the decree
by unnecessarily questioning the final decree.
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13. Be that as it may, defendant No.1, however, has
not challenged decree passed in R.A.No.86/2017. If the
Appellate Court, while allowing appeal filed in
R.A.No.86/2017, by exercising judicial discretion has
allotted Block II to the share of plaintiff No.1, defendant
No.1 having failed to question decree filed in
R.A.No.86/2017 cannot maintain captioned second appeal.
14. The apprehension of defendant No.1 that the
feasibility report submitted by the Court Commissioner
contravenes Clause-4 of the compromise decree is also
found to be misconceived. No such stand is taken in the
objection tendered before the FDP Court. If the subject
matter of the final decree proceedings is only 34 guntas,
defendant No.1 cannot question feasibility report. It is also
brought to the notice of this Court by the learned Senior
Counsel appearing for plaintiff No.1 that while preferring
an appeal in R.A.No.58/2017, defendant No.1 has not
chosen to implead plaintiff No.2. Even on this count, the
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grievance of defendant No.1 cannot be examined in the
captioned second appeal.
15. In the light of the discussions made supra, this
Court is more than satisfied that no substantial question of
law arises for consideration.
Accordingly, the second appeal is devoid of merits
and stands dismissed.
Pending applications, if any, are also dismissed.
Sd/-
JUDGE
NBM
