Karnataka High Court
Sri.M. Lankappa vs Sri,Ananda on 5 March, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:9270
WP No. 13062 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 13062 OF 2023 (GM-CPC)
BETWEEN:
1. SRI.M. LANKAPPA
S/O LATE MALLAPPA,
AGED ABOUT 64 YEARS,
R/AT BEHIND KEB, CHAMARAJPET,
CHIKKABALLAPURA,
CHIKKABALLAPURA DISTRICT - 562101
2. SRI. M. NARAYANASWAMY
S/O CHIKKAMUNISHAMAPPA,
AGED ABOUT 53 YEARS,
R/AT NO. 393, SY. NO.151/1B,
SHIDLAGHATTA BAGILU,
CHIKKABALLAPURA,
CHIKKABALLAPURA DISTRICT- 562 101.
3. SRI. H.V. VINSHNUPRASAD
S/O. B.N. NARASIMHAPPA,
AGED ABOUT 49 YEARS,
R/AT BEHIND JUNIOR COLLEGE STADIUM,
KELAGINATHOTAGALU,
Digitally signed by SHIDLAGHATTA BAGILU,
VANDANA S
Location: High CHIKKABALLAPURA,
Court of Karnataka CHIKKABALLAPURA DISTRICT - 562 101.
...PETITIONERS
(BY SRI. K.N. NITISH., ADVOCATE FOR
SRI. K V NARASIMHAN.,ADVOCATE)
AND:
1. SRI,ANANDA,
S/O VENKATESH,
AGED ABOUT 46 YEARS
2. SRI. SHANTHA KUMAR
S/O VENKATESH,
AGED ABOUT 44 YEARS
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WP No. 13062 of 2023
3. SRI. SANTOSH KUMAR
S/O VENKATESH,
AGED ABOUT 40 YEARS
R-1 TO 3 ARE RESIDING AT NO. 315,
KURUBARAGALLI, DEVATIPETE,
OLD POST OFFICE ROAD,
CHICKBALLAPUR TOWN,
CHIKKABALLAPURA DISTRICT- 562 101.
4. SMT. MANJULA,
D/O VENKATESH,
AGED ABOUT 45 YEARS
R/AT DEVITIPETE TOWN,
CHICKBALLAPUR TOWN,
CHIKKABALLAPURA DISTRICT- 562 101.
5. SRI.SRIRAMAPPAM,
S/O BYRAPPA,
AGED ABOUT 71 YEARS,
R.AT KELGINA THOTAGALU,
CHICKBALLAPUR TOWN,
CHIKKABALLAPURA DISTRICT- 562 101.
6. SRI.V.N. VENKATESH
S/O NARAYANAPPA,
AGED ABOUT 74 YEARS,
R/AT KUMBARPET,
CHICKBALLAPUR TOWN,
CHIKKABALLAPURA DISTRICT- 562 101.
SRI. B. KRISHNAPPA
(DEAD BY LRS)
7. NARAYANAMMA
W/O LATE B. KRISHNAPPA
AGED ABOUT 70 YEARS
8. MURALI
S/O LATE B. KRISHNAPPA
AGED ABOUT 50 YEARS
9. GANESH
S/O LATE B. KRISHNAPPA
AGED ABOUT 47 YEARS
10. VARALAKSHMI,
D/O LATE B. KRISHNAPPA
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WP No. 13062 of 2023
W/O SHANKARAPPA
AGED ABOUT 45 YEARS
R-7 TO R-10 ARE
R/AT KELGINA THOTAGALU
CHICKBALLAPUR TOWN,
CHIKKABALLAPURA DISTRICT- 562 101.
11. SRI. H.M. RAMACHANDRAPPA
S/O LATE H.D. MUNIVENEERAPPA,
AGED ABOUT 64 YEARS,
R/AT D. HOSSUR,
DODDAMARALI POST,
CHICKBALLAPUR TOWN,
CHIKKABALLAPURA DISTRICT- 562 101.
SRI. MUNIVENKATAPPA
(DEAD BY LRS)
12. SRI. SRINIVASA MURTHY
S/O LATE MUNIVENKATAPPA
AGED ABOUT 73 YEARS.
13. SRI. RAVICHANDRA
S/O LATE RAMESH,
AGED 43 YEARS
14. KUMARI. BHAVANA
D/O LATE RAMESH,
AGED 40 YEARS
R-12 TO R-14 ARE R/AT SADALI,
SADALI POST,
SHIDLAGHATTA TALUK,
CHICKBNALLAPUR DISTRICT - 562 104.
SMT. MUNITHAYAMMA
(DEAD BY LRS)
15. SRI. VENKATARAYAPPA
HUSBAND OF MUNITHAYAMMA,
AGED 83 YEARS
16. SMT. LAKSHMAMMA
D/O VENKATARAYAPPA,
AGED 45 YEARS
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17. SMT. MUNIYAMMA
D/O VENKATARAYAPPA,
AGED 43 YEARS
18. SRI. RAVI
D/O VENKATARAYAPPA,
AGED 40 YEARS
19. SRI BYREGOWDA
S/O VENKATARAYAPPA,
AGED 50 YEARS
R-15 TO 19 ARE
R/AT H.S. GARDEN,
SHIDLAGHATTA BAGILU,
CHICKBALLAPUR TOWN.
CHIKKABALLAPURA - 562 101.
20. SRI. VENKATESH RAJU
S/O LATE NARAYANA RAJU,
AGED 45 YEARS
R/AT NO. 159, SADHIBHAVI ROAD,
OPO ROAD CROSS,
CHIKKABALLAPUR TOWN,
CHIKKABALLAPURA- 562 101.
21. SRI VENKATARAMANAPPA
S/O LATE SRI. B. BYRAPPA,
AGED ABOUT 49 YEARS,
R/AT KELAGIN THOTA VILLAGE,
KASABA HOBLI,
CHIKKABALLAPUR TOWN,
CHIKKABALLAPURA - 562 101.
...RESPONDENTS
(BY SRI. RAVISHA M G.,ADVOCATE)
THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION
OF INDIA PRAYING TO QUASHING THE ORDER DATED 05/04/2023
PASSED ON IA NO 8 IN FDP NO 13/2003 BY THE LEARNED I ADDL
SENIOR CIVIL JUDGE AND JMFC AT CHIKKABALLAPUR AT ANNEXURE E.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 13062 of 2023
ORDER
This petition by the respondents 8 to 10 in FDP No.13/2003
on the file of Addl.Senior Civil Judge and JMFC, Chickballapur, is
directed against the impugned order dated 05.04.2023, whereby
the application I.A.8 filed by the petitioners seeking incorporation of
additional properties to the final decree proceedings was rejected
by the trial court.
2. Heard both sides and perused the material on record.
3. The material on record discloses that the respondents
instituted the aforesaid FDP to implement and enforce the
preliminary decree dated 02.11.2002 passed in O.S.No.49/1997 by
the trial court. The operative portion of the said judgment and
decree passed by the trial court is as under:-
" The plaintiff's suit is partly decreed. Plaintiffs 1 to 3
are entitle for 1/3rd share each in the Suit Schedule Property.
There shall be partition and separate possession of the
plaintiff's share in the Suit Schedule Property. During
partition if it is found that the family of plaintiffs and 2nd
defendant owns other immovable property as on this date, as
far as possible the Suit schedule Property shall be allotted to
the share of the 2nd Defendant and the share of the plaintiffs
shall be adjusted in the other immovable properties shall be
done by Deputy Commissioner, Kolar as described under
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Sec 54 CPC. In the circumstances of the case there is no
order as to costs."
4. As can be seen from the aforesaid judgment and decree
passed by the trial court, liberty was reserved in favour of the
parties to ascertain as to existence of other immovable properties
of joint family, which was partible between the parties. Under these
circumstances, the petitioners who are respondents 8 to 10 in the
FDP filed the instant application seeking addition / incorporation of
5 additional properties. The said application having been opposed
by the respondents, the trial court proceeded to pass the impugned
order rejecting the application, aggrieved by which, the petitioners
are before this Court by way of the present petition.
5. A perusal of the impugned order will indicate that the trial
court has committed an error in not conducting any enquiry as to
whether the properties sought to be added were partible between
the parties or not. Under these circumstances, I deem it just and
appropriate to set aside the impugned order and directing the trial
court to dispose of the FDP on merits on all aspects including
rendering findings on the aforesaid 5 items sought to be
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incorporated by way of I.A.8 filed by the petitioners after providing
reasonable and sufficient opportunity to both sides in this regard.
6. In the result, I pass the following:-
ORDER
(i) Petition is hereby disposed of.
(ii) The impugned order dated 05.04.2023 passed on
I.A.No.8 in FDP No.13/2003 stands disposed of by directing the
trial court to consider all rival contentions between the parties in the
FDP including rival contentions as regards the properties which are
the subject matter of I.A.8 and by conducting necessary enquiry in
this regard and by providing sufficient and reasonable opportunity
to both sides. The trial court shall adjudicate upon the FDP
including aforesaid 5 items sought to be incorporated by way of
I.A.8 filed by the petitioners. Since the present litigation arises out
of a suit of the year 1997 and the FDP are of the year 2003, I deem
it just and appropriate to exercise my jurisdiction under Article 227
of the Constitution of India and direct the trial court to dispose of
FDP within a period of one year from the date of receipt of a copy
of this order owing to exceptional circumstances obtaining in the
instant case.
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7. Subject to the aforesaid directions, petition stands
disposed of.
SD/-
JUDGE
Srl.
