IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF OCTOBER, 2017 BEFORE:
THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA REGULAR SECOND APPEAL No.71/2017 BETWEEN:
CHIKKAPLA CHANNABASAPPA DEAD BY LRs.
C GANGAMMA W/O LATE CHIKKAPLA CHANNABAAPPA DEAD BY LRs.
1. C.GIRIJAMMA W/O LATE PARMESWARAPPA D/O LATE CHIKKAPLA CHANNABASAPPA AGED ABOUT 65 YEARS, R/O HALAGANCHIKERI, YADEHALLI POST, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT-583131.
2. C.BASAMMA W/O LATE K.H.PARAMESHWARAPPA D/O LATE CHIKKAPLA CHANNABASAPPA AGED ABOUT 63 YEARS 3. C.REVANASIDDAPPA S/O LATE CHIKKAPLA CHANNABASAPPA, AGED ABOUT 61 YEARS 4. C.MALLAMMA W/O LATE UMAPATHI AGED ABOUT 51 YEARS 5. C.BASAVARAJA S/O LATE CHIKKAPLA CHANNABASAPPA, AGED ABOUT 50 YEARS APPELLANTS 2 TO 5 ARE R/O CHIKKAMEGALAGERI VILLAGE, POTHALAKATTE POST, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT-583131.
6. C.SHOBHA W/O KADEMANI SHANTHAPPA AGED ABOUT 47 YEARS, R/O MASKAL MARUDI, THANNIGERE POST, CHENNAGIRI TALUK, DAVANAGERE DISTRICT-577552.
CHIKKAPLA KOTRAPPA S/O MALLAPPA, DEAD BY LRs.
C.SHARANAPPA, S/O LATE KOTRAPPA, DEAD BY LRs.
7. KAMALAMMA W/O LATE C.SHARANAPPA AGED ABOUT 63 YEARS 8. GANGADAHARA S/O LATE C.SHARANAPPA AGED ABOUT 38 YEARS 9. REVANASIDDAPPA S/O LATE C.SHARANAPPA AGED ABOUT 33 YEARS APPELLANTS 7 TO 9 ARE R/O CHIKKAMEGALAGERE VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT-583131.
10. C.MALLIKARJUNAPPA S/O LATE C.KOTRAPPA AGED ABOUT 68 YEARS 11. C.GOVINDAPPA S/O LATE C.KOTRAPPA AGED ABOUT 63 YEARS 12. C.PARAMESHWARAPPA S/O LATE C.KOTRAPPA, AGED ABOUT 58 YEARS 13. REVAKKA W/O A.RUDRAPPA, D/O LATE C.KOTRAPPA AGED ABOUT 53 YEARS 14. C.EKANTHAPPA S/O LATE C.KOTRAPPA AGED ABOUT 50 YEARS 15. C.BASAVARAJAPPA S/O LATE C.KOTRAPPA AGED ABOUT 48 YEARS APPELLANTS 10 TO 15 ARE R/O CHIKKAMEGALAGERE VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT-583131. ... APPELLANTS [BY SRI G.KRISHNAMURTHY, SENIOR COUNSEL FOR SMT.MONICA PATIL & JOSEPH ANTHONY, ADVS.] AND:
CHIKKAPPALA CHANNABASAVVA W/O CHIKKAPPALA NAGAPPA DEAD BY LRs, AND PURCHASER CHIKKAPLA MUDDAPPA S/O MALLAPPA, DEAD BY LRs.
1. KARIBASAMMA W/O LATE MUDDAPPA AGED ABOUT 77 YEARS R/O CHIKKEMEGALERE VILLAGE HARAPANAHALLI TALUK DAVANGERE DISTRICT-583131 2. MALLAMMA W/O HALAPPA AGED ABOTU 58 YEARS R/O KUPPELUR, RENEBENNUR TALUK, HAVERI DISTRICT-581110 3. BASAVARAJAPPA W/O LATE MUDDAPPA AGED ABOUT 57 YEARS R/O CHIKKEMEGALERE VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT-583131.
4. RAMALINGAPPA S/O MUDDAPPA AGED ABOUT 51 YEARS R/O CHIKKEMEGALERE VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT-583131.
5. HALAMMA W/O KARIBASAPPA D/O MUDAPPA AGED ABOUT 49 YEARS R/O TELIGI VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT-583131.
6. HEMARAJA S/O MUDDAPPA AGED ABOUT 47 YEARS R/O CHIKKEMEGALERE VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT-583131.
7. GANESH S/O MUDDAPPA AGED ABOUT 41 YEARS R/O CHIKKEMEGALERE VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT-583131.
C.NAGAVVA W/O LATE VEERAPPA DEAD BY LRs.
8. K.SUSHEELAMMA W/O VIRUPAKSHAPPA AGED ABOUT 66 YEARS R/O CHIKKEMEGALERE VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT-583131.
9. C.VEERAPPA S/O LATE P.VEERAPPA AGED ABOUT 63 YEARS 10. H.RUDRAMMA W/O CHANNABASAPPA AGED ABOUT 60 YEARS 11. P.CHANNAPPA S/O LATE VEERAPPA AGED ABOUT 58 YEARS RESPONDENTS 8 TO 11 ARE R/O HEREMEGALAGERE VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT-583131.
12. U.MURGEMMA W/O UBRABAGILAMANE AJJAPURA VEERAPPA AGED ABOUT 55 YEARS R/O ARAKANAI VILLAGE, KUDLIGI TALUK-583218 13. B.CHANNABASAPPA S/O BHEEMAPPA AGED ABOUT 84 YEARS R/O KADAJJI VILLAGE, DAVANAGERE DISTRICT-577002.
14. ADDI AJJAPPA S/O GURUSHANTHAPPA AGED ABOUT 84 YEARS R/O ARSIKERE VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT-583125 15. P.GURUSHANTHAMMA W/O P.MAHADEVAPPA AGED ABOUT 66 YEARS 16. K.ANJINAPPA S/O LATE NAGAPPA AGED ABOUT 49 YEARS 17. U.SHASTRILU S/O LATE VENKATARAO AGED ABOUT 74 YEARS 18. SURYAVATHI W/O LATE SATHYANARAYANA AGED ABOUT 44 YEARS 19. IJARI CHANNAPPA S/O LATE YAMUNAPPA AGED ABOUT 69 YEARS RESPONDENTS 15 TO 19 ARE R/O CHIKKEMEGALERE VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT-583131.
20. G.B.MRUTHYUNJAYAPPA S/O LATE BASAPPA AGED ABOUT 69 YEARS R/O DOOR No.285/1, NEAR VITTAL MANDIRA MAHARAJAPET DAVANAGERE-577002. …RESPONDENTS [BY SRI VIGHNESHWAR S. SHASTRI, ADV. FOR C/R-7.) THIS RSA IS FILED UNDER 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 17.10.2016 PASSED IN R.A.NO.32/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC AT HARAPANAHALLI, DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 07.10.2013 PASSED IN FDP NO.2/2007 ON THE FILE OF THE CIVIL JUDGE & JMFC AT HARAPANAHALLI, ALLOWING THE PETITION FILED UNDER SECTION ORDER 20 R.18 R/W SECTION 54 OF CPC, 1908.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:-
J U D G M E N T The appellants herein were respondents in FDP No.2/2007. They have assailed Judgment and Decree in R.A. No.32/2015 dated 17.10.2016 passed by the Court of Senior Civil Judge & JMFC, Harapanahalli, by which, the order dated 7.10.2013 passed in FDP No.2/2007 by the Civil Judge at Harapanahalli has been confirmed.
2. For the sake of convenience, the parties shall be referred to in terms of their status in FDP No.2/2007.
3. The respondents herein filed the final decree proceedings, in order to execute the preliminary decree dated 17.07.1972 passed in OS No.27/1972. That suit was filed by Channabasavva [Channabasamma] – widow of Nagappa, seeking the relief of partition and separate possession of the joint family properties. The said suit was filed by her against her husband’s brothers. The defendants in the suit appeared, but did not further participate in the proceedings. The suit was decreed on 17.07.1972, granting one-third share to Channabasavva. At this stage, it may be mentioned that the defendants in the suit had filed a Miscellaneous proceeding under Order IX Rule 13 of Code of Civil Procedure, 1908 [CPC], assailing the ex parte decree dated 17.07.1972. Being unsuccessful in the Miscellaneous proceeding, they had filed Civil Revision Petition before this Court. But, they were once again not successful in the said revision petition. Thereafter, Channabasavva sold her right, title and interest in the suit schedule properties to Muddappa who is none other than father of the respondents herein.
4. Learned Senior Counsel for the Appellants would submit that Channabasavva died on 13.10.1976 and the purchaser of her one-third share also passed away on 7.11.2000. Both of them did not initiate any final decree proceeding. However, the legal representatives of deceased purchaser Muddappa filed FDP No.2/2007. In the said proceedings, the trial Court had appointed the Tahsildar, Harapanahalli as Court Commissioner to survey, measure and demarcate the suit schedule properties so as to allot one-third share to respondents as per the registered sale deed dated 1.10.1975 [Exhibit P2], under which Muddappa had purchased one-third share of Channabasavva.
5. Being aggrieved by that order, the appellants herein preferred R.A. No.32/2015 before the first Appellate Court, which, after hearing learned counsel for the respective parties, framed the following points for its consideration.
“1. Whether the trial Court judge is right in allowing the FDP?
2. Whether the interference of this Court is necessary?
3. What order?”
6. The first Appellate Court answered point No.1 in the affirmative and point No.2 in the negative and dismissed the appeal by affirming the order of the trial Court passed in FDP No.2/2007 dated 7.10.2013. The first Appellate Court also directed that the decree be drawn in terms of the said order. Being aggrieved by the Judgment of the first Appellate Court, which has confirmed the order of the trial Court passed in FDP No.2/2007, the appellants have preferred this second appeal.
7. I have heard learned Senior Counsel for the appellants and learned Counsel for Caveator/Respondent No.7 and perused the material on record.
8. Learned Senior Counsel while drawing my attention to the orders passed by the Courts below, submitted that the respondents herein could not have maintained FDP No.2/2007, in as much as, they are not the legal representatives of Channabasavva in whose favour decree dated 17.07.1992 was passed. He elaborated his submission by drawing my attention to the fact that Channabasavva had sold her right, title and interest in the suit schedule properties to Muddappa after the passing of the decree and she did not institute any final decree proceeding and neither did Muddappa. It is the children of Muddappa-purchaser who filed the final decree proceeding only in the year 2007 long after the decree was passed in the year 1972 and that filing of the final decree proceeding is hit by delay and laches.
9. He further submitted that the respondents not being the legal representatives of Channabasavva could not have straight away filed final decree proceeding in order to take forward the preliminary decree passed on 17.07.1972 in favour of Channabasavva, instead they had to file a fresh suit seeking the relief of partition and separate possession and establish the fact that they have the right, title and interest to a share in the suit schedule properties as they are strangers to the family of Channabasavva and appellants herein. Of course, learned Senior Counsel sought to raise contentions with regard to the correctness of the Decree dated 17.07.1972, but however, emphasized on the aforesaid two contentions. He submitted that the first Appellate Court was also not right in observing that the appellants herein had not filed any suit or proceeding assailing the sale deed dated 1.10.1975 whereas they have, in fact, filed a suit seeking cancellation of the said sale deed and therefore the Judgment of the first Appellate Court which has confirmed the order of the trial Court is incorrect.
10. Learned Senior Counsel submitted that substantial question of law would arise in this appeal and therefore the appeal may be admitted for a detailed hearing.
11. Per contra, learned Counsel for Caveator- Respondent No.7, supporting the Judgment of the first Appellate Court, which has confirmed the order of the trial Court, contended that it is wholly unnecessary for the respondents herein to file a separate suit and once again seek a preliminary decree of partition and separate possession of the suit schedule property. He submitted that the respondents herein are none other than the legal heirs of Muddappa, purchaser of the share in suit schedule properties from none other than Channabasavva, plaintiff in OS No.27/1972 under a registered sale deed dated 1.10.1975; that Channabasavva did not sell her right, title and interest in the suit schedule properties either prior to filing of the suit or during the pendency of the suit. He contended that only after her share in the said properties was crystallized to be one-third, did she sell the same to Muddappa, father of the respondents herein. Even if Channabasavva or Muddappa had not filed any final decree proceeding, that would not bar the respondents herein from initiating FDP No.2/2007. He contended that the proceedings cannot be said to be hit on the ground of delay and laches. He further submitted that the legal personality of Channabasavva would continue through the father of the respondents Muddappa, purchaser and on his demise, in the repsondents, and therefore it cannot be contended that the respondents herein were strangers to the estate of Channabasavva. He submitted that no substantial question of law would arise in this appeal and therefore the appeal may be dismissed.
12. The detailed narration of facts and contentions would not call for a reiteration except emphasizing the fact that Channabasavva who had succeeded in OS No.27/1972 by Judgment and Decree dated 17.07.1972 sold her right, title and interest in the joint family properties to Muddappa under a registered sale deed dated 1.10.1975. It may be that she did not institute any final decree proceeding and neither did her purchaser throughout his lifetime so as to take one- third share purchased by him in accordance with the preliminary decree dated 17.07.1972 by metes and bounds. But, it cannot be held that respondents are strangers to the one-third share in the suit schedule properties which has been purchased after conclusion of the suit. There is also no dispute that they are not the legal heirs of the purchaser, Muddappa. Hence, it cannot be contended that they had no right to institute or initiate final decree proceeding and that they had to file a fresh suit so as to seek partition and possession of their one-third share in the suit schedule property. The plaintiff, Channabasavva did not alienate her one-third share in the suit schedule property at a point of time when her family remained joint. She had in fact filed the suit for partition and separate possession and on being successful in getting her one-third share she alienated the same to respondents’ father. He stepped into the shoes of the plaintiff-decree holder and on his demise the respondents succeeded to the same. Further, the institution of the final decree proceeding in the year 2007 cannot be held to be hit by delay and laches. Hence, it is held that they had the right to institute the final decree proceeding. Once the final decree proceeding was filed by the legal heirs of Muddappa, the trial Court has proceeded to take further steps pursuant to the preliminary decree dated 17.07.1972 by appointing the Tahsildar, Harapanahalli to demarcate the properties which could be allocated to Channabasavva and on her demise, to her successors in interest who are the respondents herein, being the legal heirs of the purchaser of Channabasavva, namely, Muddappa. The trial Court has held that the share of Channabasavva was being allocated as per the extent of properties mentioned in the registered sale deed dated 1.10.1975 [Exhibit P2]. Therefore, the trial Court has borne in mind the fact that Channabasavva had alienated her right, title and interest in the suit schedule properties as per Exhibit P2 and equities between the parties has been adjusted by allocating the share of Channabasavva in accordance with what she had sold to respondents’ father Muddappa under the registered sale deed dated 1.10.1975.
13. The first Appellate Court taking note of the said fact, has confirmed the order of the trial Court as the equities between the parties have been taken note of and the alienation made by Channabasavva subsequent to crystallization of her right, title and interest in the suit schedule properties have been taken into consideration.
14. Merely because the appellants herein have attempted to assail the sale deed dated 1.10.1975 in a separate suit, the drawing up of the final decree arising from OS No.27/1972 cannot be stalled. If at all, the appellants herein were to succeed in the said suit, then at that stage, the trial Court would consider the impact of the final decree drawn in the instant case. Merely because the appellate Court refers to the respondents herein as legal representatives of Channabasavva, cannot also be found fault with. As already noted, the estate of Channabasavva was entitled to in the suit schedule properties which was crystallized by the Decree dated 17.07.1972 could have been alienated by her, and in fact, she had alienated the same to Muddappa on 1.10.1975 and the respondents herein being legal heirs and successors of Muddappa who was the purchaser from Channabasavva, have right to succeed to the said estate in terms of the decree passed in favour of Channabasavva on 17.07.1972 and on the basis of the sale deed dated 1.10.1975. In the circumstances, I do not find any substantial question that would arise in this appeal.
15. Hence, the appeal is dismissed.
16. Parties to bear their own costs.
In view of the dismissal of the appeal, IA No.1/2017 also stands dismissed.
Sd/-
JUDGE AN/-