Karnataka High Court
N.Anand Rao S/O Sri.N.Rangaiah vs Smt.K.R.Radhika W/O Sri. H. Ravindra on 26 July, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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RFA No. 100107 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO. 100107 OF 2019 (PAR/POS)
BETWEEN:
1. N. ANAND RAO, S/O. SRI. N. RANGAIAH,
AGE: 62 YEARS, OCC: BUSINESS,
R/O: "SEVEN HILLS"
PLOT NO.9, GANDHINAGAR,
NEAR MARKET, 18TH WARD, BELLARY.
2. SMT. N. VASANTHA, W/O. SRI. N. ANANDA RAO,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O: "SEVEN HILLS"
PLOT NO.9, GANDHINAGAR,
NEAR MARKET, 18TH WARD, BELLARY.
...APPELLANTS
(BY SRI. GODE NAGARAJA, ADVOCATE)
AND:
Digitally signed
by GIRIJA A
BYAHATTI
Location: HIGH
1. SMT. K.R. RADHIKA, W/O. SRI. H. RAVINDRA,
COURT OF AGE: 49 YEARS, OCC: HOUSEHOLD,
KARNATAKA
R/O: SOMESHWARA EXTENSION,
DODDABALLAPUR TOWN,
BANGALORE RURAL DISTRICT.
2. SMT. SARAWSWATHAMMA,
W/O. LATE SRI. H. JANARDHAN,
AGE: 76 YEARS, OCC: HOUSEHOLD,
R/O: NO.9 KHB COLONY,
GANDHINAGAR, 1ST CROSS, BELLARY,
ALSO AT PLOT NO.44, ANTHAPUR COLONY,
BELLARY-533101.
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RFA No. 100107 of 2019
3. H. SURESH, S/O. LATE. SRI. H. JANARDHAN,
AGE: 56 YEARS, OCC: BUSINESS,
R/O: NO.9 KHB COLONY,
GANDHINAGAR, 1ST CROSS, BELLARY,
ALSO AT PLOT NO.44, ANTHAPUR COLONY,
BELLARY-533101
4. H. HAREESH, S/O. LATE SRI. H. JANARDHAN,
AGE: 50 YEARS, OCC: BUSINESS,
R/O: NO.9 KHB COLONY,
GANDHINAGAR, 1ST CROSS, BELLARY,
ALSO AT PLOT NO.44, ANTHAPUR COLONY,
BELLARY-533101
5.
SMT. SHYALAJA, D/O. LATE. PADMANABHA,
AGE: 52 YEARS, PCC: HOUSEHOLD,
R/O: NO.9 KHB COLONY,
GANDHINAGAR, 1ST CROSS, BELLARY,
ALSO AT PLOT NO.44, ANTHAPUR COLONY,
BELLARY-533101 ...RESPONDENTS
( SRI. J. YUGANDHAR, ADVOCATE FOR C/R1;
R2 SERVICE HELD SUFFICIENT, NOTICE TO R3, R4 AND R5 SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
ORDER 41 RULE 1 R/W UNDER SECTION 96 OF THE CODE OF CIVIL
PROCEDURE, PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE
ORDER AND DECREE DATED 28/11/2018 PASSED BY THE PRINCIPAL
SENIOR CIVIL JUDGE AND C.J.M. BALLARI IN F.D.P.NO.23/2011 AND
I.A.NO.6 FILED BY THE APPELLANTS HEREIN MAY KINDLY BE
ALLOWED AS PRAYED FOR AND GRANT SUCH ANY OTHER RELIEFS
WHICHEVER DEEMS FIT TO THIS COURT UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE AND ALLOW THIS APPEAL WITH
COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.07.2024 AND COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT', THIS DAY, T.G.SHIVASHANKARE GOWDA J.,
PRONOUNCED THE FOLLOWING:
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RFA No. 100107 of 2019
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
and
HON'BLE MR.JUSTICE T. G. SHIVASHANKARE GOWDA
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA)
In this appeal, respondent Nos.5 and 6 have
challenged the order passed in Final Decree Proceedings
No.23/2011 on 28.11.2018 by the Principal Senior Civil
Judge and C.J.M., Ballari (for brevity 'the FDP Court').
2. The appellants were the respondent Nos.5 and
6, respondent No.1 was the petitioner and respondent
Nos.2 to 5 were respondent Nos.1 to 4 before the FDP
Court. Hence, for the sake of convenience, parties shall
be referred to as per their status before the FDP Court.
3. The brief facts of the case are, the petitioner as
plaintiff has filed a suit in O.S.No.74/2006 against the
respondent Nos.1 to 4/defendants No.1 to 4, seeking grant
of partition and separate possession of her share in three
properties consists of item No.1, a house property in
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Kh.No.9, K.H.B.Colony, 1st Cross, Gandhinagar, Ballari and
item Nos.2 and 3, two landed property situated at
Somasamudra village, Ballari taluk. The suit came to be
decreed by judgment and decree dated 16.12.2010
granting 6/25th share in favour of the petitioner, 6/25th
share each in favour of respondent Nos.1 to 3 and 1/25th
share in favour of respondent No.4. Challenging the said
judgment and decree, the defendant No.4 has filed RFA
No.3052/2011, defendant Nos. 1 to 3 have filed RFA
No.3044/2011. By common judgment dated 29.11.2002,
both the appeals came to be dismissed by this Court.
Thereby, the litigation reached the finality.
4. In execution of preliminary decree, the plaintiff
as petitioner has filed F.D.P.No.23/2011. In the F.D.P.
proceedings, the present appellants were arrayed as
respondent Nos.5 and 6, as purchasers of item No.1 of the
suit schedule property from respondent No.2 as per the
sale deed dated 24.11.2005. Before the F.D.P. Court,
originally the respondent Nos. 5 and 6 placed ex-parte.
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On 27.04.2017, they have filed an I.A.No.V under Order X
Rule 7 read with Section 151 of the Code of Civil
Procedure. The said application came to be rejected on
the ground that, in the suit they were not granted any
preferential right. Against the said order, they have filed
W.P.No.109414/2017, before this Court. The said writ
petition came to be dismissed on 20.09.2018, however
permitting the respondent Nos. 5 and 6 to participate in
the F.D.P. proceedings, on payment of cost of Rs.5,000/-
to the petitioner.
5. The F.D.P. Court by order dated 14.03.2017 has
appointed a City Surveyor of ADLR Office, Ballari in
respect of item No.1 and Taluk Surveyor in respect of item
Nos.2 and 3 as Court Commissioners and to suggest the
feasibility of effecting division of the properties. The City
Surveyor filed a report on 22.09.2017 mentioning that
division of item No.1 is not possible unless demolition of
the building. As per order dated 06.02.2018, FDP Court
issued a fresh direction to the Court Commissioner to
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submit possible demarcation of item No.1. On
20.02.2018, the Court Commissioner has filed a fresh
proposal in 'A' and 'B' form. On 12.03.2018, respondent
No.2 proposed to buy the share of the petitioner at its
market value, which came to be rejected by the petitioner.
6. The appellants/respondent Nos.5 and 6, filed
objections to the report of the Court Commissioner and
also sought for an enquiry regarding feasibility of effecting
partition of the properties. After hearing both parties, the
FDP Court has rejected their objections.
Appellants/Respondent Nos.5 and 6 have also filed
I.A.No.6 under Section 3(1) read with Section 2 of the
Partition Act, 1893 ('the Act' for brevity) seeking
permission to purchase item No.1 at the market value
pertains to share of the petitioner. The application came
to be rejected and the FDP Court allowed the petition,
allotted the share in favour of the petitioner as suggested
by the Court Commissioner and order to draw final decree.
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Aggrieved by the same, appellants/respondent Nos.5 and
6 have filed this appeal on various grounds.
7. We have heard the arguments of Sri.Gode
Nagaraja, learned counsel for the appellants/respondent
Nos.5 and 6 and Sri.J.Yugandhar, learned counsel for
petitioner.
8. It is contended by the learned counsel for the
appellants/respondent Nos. 5 and 6 that the petitioner has
obtained the decree in O.S.No.74/2006 in a fraudulent
manner without arraying the appellants as party to the
suit in spite of knowing fully well that they are the
purchasers of suit item No.1 property. Such purchase was
before filing of the said suit. The appellants are the
bonafide purchasers of the share of respondent Nos.1 to 4.
The appellants are ready to purchase the share of the
petitioner also and they filed I.A.No.6 before the FDP
Court. But unfortunately, the Court has dismissed the
application by exercising its power beyond the jurisdiction.
The first report of the Court Commissioner clearly explains
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that the item No.1 is not divisible. The FDP Court has not
followed the fundamental principles as enumerated under
Sections 2 and 3 of the Act. Portion Nos.II and III were
allotted to the petitioner subject to deposit of
Rs.4,68,000/- to be payable to the appellants, which is
contrary to the principles laid down in Sections 2 and 3 of
the Act. Item Nos.2 and 3 of the decree schedule are
fertile lands, which fetch good market value. Respondent
No.4 is ready to compensate the petitioner by giving
equitable land in item Nos.2 and 3. If the petitioner
accepts the said land, partition will be a partition by metes
and bounds and equity can be achieved.
8(a) It is further contended that the FDP Court has
committed an error in holding that portion No.VI, which is
equivalent to portion Nos.I and II to an extent of 355
sq.ft. marked as 'ABCD' portion, is common passage. The
Trial Court has erroneously held that portion No.VI is
equivalent to portion Nos.I and II as common passage and
also 82.5 sq.ft. stair case creating common usage rights in
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favour of the petitioner. Hence, the matter requires to be
remanded back to the FDP Court to examine the non-
feasibility of division of item No.1 compensating the
petitioner by allotting the portion of landed property in
item Nos.II and III or sale of the share of the petitioner in
favour of the appellants equivalent to the market value.
He sought for remand of the matter to FDP Court to redo
the exercise.
9. Per contra, learned counsel for the petitioner
has contended that the appellants with an intention to
defeat the interest of the petitioner have purchased the
property knowing the consequences and they are not the
necessary party to the suit for determination of share of
the petitioner. The petitioner is having a legal share in all
the suit schedule properties and they urged their right
before the Trial Court and the suit came to be decreed
granting 6/25th share. The appellants being the
purchasers ventured to purchase the property where the
petitioner is having a joint ownership. They cannot blow
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hot and cold that they are entitled to claim equity. Suit
item No.1 property is not a bit and piece of land, it is a
huge residential and commercial building situated in Ballari
city consists of 7 shops as well as house on the backyard
totally measuring 3750 sq.ft. of sital area. The appellants
in collusion with the Court Commissioner have got filed the
report indicating that the property is not divisible. When
such a huge property is amenable for division, there is no
question of applying Section 2 or Section 3 of the Act. For
this reason, the FDP Court has directed the Court
Commissioner to re-do the report and to propose the
allotment of share as per the preliminary decree.
9(a) It is further contended that, the Court
Commissioner has filed a fresh report with a specific
demarcation, providing common usage right in staircase,
common passage to go to the backyard house, ground
floor of the complex, first floor and the second floor
portion is carved out. The portions suggested for allotment
is equal to the share of the parties as decreed. For the
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reason of excess measurement of 130 sq.ft., the
Commissioner has made assessment of value based on the
market price and accordingly, the petitioner was directed
to deposit Rs.4,68,000/-. In compliance of the order, said
amount has been deposited the said amount before the
FDP Court. The order of the FDP Court is based on the
correct materials and there is no scope for putting the
property under the sale. The intention of the appellants is
to force the petitioner to sell her share of property in their
favour, which is not sustainable in law. Even giving up of
the share in item No.1 and taking equal share in item
Nos.2 and 3 does not arise as the agricultural land has
been properly divided. There is no question of petitioner
taking share in the agricultural property equivalent to the
share in the building. The report of the Commissioner is
proper, the FDP Court has rightly accepted the report and
he supported the impugned order.
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10. We have given our anxious consideration to the
arguments advanced on behalf of both parties and perused
the materials on record.
11. Now the points that arise for our consideration
are:
(i) Whether the partition effected by the FDP Court
is in contravention of Section 3(1) read with
Section 2 of the Partition Act, 1893?
(ii) Whether the impugned order calls for our
interference?
Re: Point No.(i):
12. The description of item No.(i) of the suit
schedule in the preliminary decree is as follows:
"The house property in Kh.No.9 of the
K.H.B.Colony, 1st Cross, Gandhinagar, Bellary."
13. Petitioner is granted 6/25th share whereas,
defendant Nos.1 to 3/respondent Nos.1 to 3 were granted
6/25th share each and defendant No.4/Respondent No.4
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was granted 1/25th share. Though the description of the
property did not contain the measurement and details of
the existence of building and vacant space, it is undisputed
that the said property consists of shop premises, ground
floor, first floor and second floor with a staircase, and on
the backyard of the shop building, there is a separate
residential house with separate access from the main road.
The records show that the sital measurement is 75 feet x
50 feet, out of which, the shops in the ground floor consist
of 432 sq.ft., 612 sq.ft. each in the first and second floor;
a house property in the said site consists of 1160 sq.ft. in
the ground floor and 580 sq.ft. in the first floor. The
photographs of the building property are also made
available in the records.
14. Under the preliminary decree, the petitioner
was allotted 6/25th share. The entire property is to be
divided into 25 parts. The petitioner is entitled to 900
sq.ft. of sital area. The extent of shop building will be 432
(ground floor)+ 612(first floor) + 612 (second floor) =
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1656 sq.ft.; then share of the petitioner comes to 397.44
sq.ft. In the house property i.e., 1160 (ground floor) +
580 (first floor) = 1740 sq.ft. the share of the petitioner
comes to 417.6 sq.ft. Open yard around the house is 1650
sq.ft. , the share of the petitioner comes to 396 sq.ft. In
order to meet the equity, the petitioner has to be given
share in the open yard, house building and also shopping
complex and it comes to 2110.44 sq.ft. This extent is not
a small portion. The division of share shall be value based
equity and in this regard, the Court Commissioner has
assessed the market value of the entire property and
carved out the share of the petitioner equivalent to her
share of 6/25th. Hence, we hold that the item No.1 is
divisible among the parties as suggested by the Court
Commissioner.
15. We have perused the report of the
Commissioner. The Commissioner has noted the
topography of the entire property, open yard, shop
building and also the house. He has prepared a sketch
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dividing the property into Portion-I, II, III, IV and V as
below as per sketch 'A'. :
(I) 82.50 sq.ft. small shop;
(II) 82.50 sq.ft. of staircase;
(III) 495 sq.ft. of 3 shops each measuring
16½x10 sq.ft. in the ground floor, 3 shops in
the first and second floors;
(IV) 1650 sq.ft. of passage space around the
house located abutting to shopping complex;
(V) 1440 sq.ft. of RCC House with first floor
house measuring 30 x 21 sq.ft.
The proposal made by the Court Commissioner for
division of the entire property is shown in Sketch 'B' in
portion I to VI as follows:
(I) 495 sq.ft. - 3 shops in ground floor, 2
shops in first floor, 1 shop in second floor;
(II) 165 Sq.Ft - 1 shop in ground floor, 1 shop
in first floor;
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(III) 760 Sq.Ft - northern portion of house;
(IV) 760 Sq.Ft - Middle portion of house;
(V) 820 Sq.Ft - Southern portion of house;
(VI) 750 Sq.Ft - Common passage.
16. The petitioner is allotted one shop located in the
ground floor, above the said shop, one shop in the first
floor, as shown in portion-II. Northern portion of the
house as shown in portion - III in Sketch 'B'. The
petitioner is also granted rights for common usage of the
passage marked as 'ABCD' and staircase shown in portion
- II in Sketch 'A'.
17. The report of the Commissioner also shows
allotment of 3 shops in the ground floor, 2 shops in the
first floor, a shop in the second floor as shown in portion-I
in Sketch 'B', middle and southern portion of the house as
shown in portion -IV and V in Sketch 'B', with common
usage of the passage marked as 'ABCD' and staircase
shown in portion - II in Sketch 'A', in favour of
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appellants/respondent Nos. 5 and 6. In view of said
option given by the Court Commissioner, the Trial Court
has rightly held that there is a feasibility of division and
such division is equitable.
18. Adverting to the argument of the learned
counsel for the appellants that FDP Court ought to have
applied Section 3(1) read with Section 2 of the Act, it is
relevant to extract said provisions of law as under:
"2. Power to Court to order sale instead of
division in partition suits.- Whenever in any suit
for partition in which, if instituted prior to the
commencement of this Act, a decree for partition
might have been made, it appears to the Court that,
by reason of the nature of the property to which the
suit relates, or of the number of the shareholders
therein, or of any other special circumstance, a
division of the property cannot reasonably or
conveniently be made, and that a sale of the property
and distribution of the proceeds would be more
beneficial for all the shareholders, the Court may, if it
thinks fit, on the request of any of such shareholders
interested individually or collectively to the extent of
one moiety or upwards, direct a sale of the property
and a distribution of the proceeds.
3. Procedure when sharer undertakes to
buy.- (1) If, in any case in which the Court is
requested under the last foregoing section to direct a
sale, any other shareholder applies for leave to buy
at a valuation the share or shares of the party or
parties asking for a sale, the Court shall order a
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valuation of the share or shares in such manner as it
may think fit and offer to sell the same to such
shareholder at the price so ascertained, and may
give all necessary and proper directions in that
behalf."
By reading the above provision, it is clear that the
Court has to order for sale, if the division of property
cannot reasonably or conveniently be made. If any
shareholder applies for leave to buy at a valuation, the
share as defined under Section 2 of the Act, then the
Court shall order for valuation of the share or shares and
offer to other sharers to sell the property.
19. In the instant case, the total extent of the
property is 3750 sq.ft. which consists of commercial
building, shops, residential house, open yard and passage.
If the property is divided, the extent of land that the
petitioner is entitled to is considerably bigger and it can be
made use of by her. It is the contesting defendants
including the appellants, who are ready to buy share of the
petitioner at the market value for which the petitioner is
not willing. But at the same time, there is no offer from
them whether they are willing to sell their share of
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property in favour of the petitioner. When a party pleads
equity, he must also do equity. When there is no counter
proposal for selling their share of property, it is not proper
on the part of the appellants to ask the petitioner to sell
away her share of property in their favour. Hence, having
regard to the extent of land and the report of the Court
Commissioner, which clearly show that the petitioner can
enjoy one shop each in the ground and first floor of the
building and portion of house, the argument of the
appellants/respondent Nos.5 and 6 is not substantiated by
conduct.
20. Adverting to the argument of Sri.Gode Nagaraj
that, petitioner can be compensated in the agricultural
lands i.e., in item Nos.2 and 3, the agricultural lands
cannot be equated with commercial complex. The
petitioner has fought the litigation since 2006 and she has
to enjoy the fruits of the decree. The appellants being the
subsequent purchasers cannot curtail her right to enjoy
the usufructs after long period of 18 years. Hence, the
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proposed apportionment of shares is not in contravention
of Section 3(1) or Section 2 of the Act. The intention of
the appellant/respondent Nos.5 and 6, seeking remand is
to gain more time to force the petitioner to come to their
terms for sale of their portion, as there are successful in
acquiring 19/25th share in the entire item No.1. We do not
found any valid reason or force in the request for remand
for redoing the whole process.
21. As referred to supra, the report of the Court
Commissioner clearly points out that the he has
considered the value of the property as per the prevailing
market price. Keeping that in mind, the property was
divided as Portion Nos.I to VI in Sketch 'B'. The appellants
are allotted 3 shops in the ground floor, 2 shops in the
first floor, a shop in the second floor as shown in portion-I
in Sketch 'B'. Middle and southern portion of the house as
shown in portion -IV and V in Sketch 'B', with common
usage of the passage marked as 'ABCD' and staircase
shown in portion - II in Sketch 'A'. In fact, major portion
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of ground floor area out of 50 x 75 sq.ft. will be under the
control of the appellants only whereas, the petitioner is
given only enjoyment of one shop in the ground and first
floor of the commercial building with a common usage
right of staircase, portion house and right of usage of
'ABCD' passage as approach to said portion of home. We
are persuaded to hold that the Court Commissioner has
applied his mind in demarcating the Portions I to V and
given option to the petitioner and the
appellants/respondent Nos. 5 and 6, which is more
equitable than the sale option offered to the petitioner.
We answer point No.(i) accordingly.
Re: Point No.(ii):
22. We have carefully perused the impugned order.
As discussed supra, FDP Court has considered the division
of the properties on the basis of the market value, the
allotment of share to the petitioner to an extent of 6/25th
share and allotting the remaining property in favour of
appellants/respondent Nos. 5 and 6. The FDP Court also
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gone to an extent of compensating the
appellants/respondents No.5 and 6 by excess
measurement of 130 sq.ft. on account of allotment of
shops. FDP Court has directed the petitioner to deposit
Rs.4,68,000/-. Equity is done not only to the petitioner
but also to appellants/respondent Nos. 5 and 6. Under
such circumstances, we do not find any error or illegality
in the impugned order. We answer point No.(ii) in the
negative.
23. In view of our discussion supra, the appeal is
devoid of merits, in the result, the following:
ORDER
Appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
KNM/GAB
