IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.1903/2008 BETWEEN:
1. HONNAMMA 2. KORAGAPPA 3. BABY 4. SHEELA 5. CHENNAMMA 6. KRISHNAPPA 7. BAGI 8. MONAPPA 9. SHIVARAMA 10. YASHODA 11. JALAJA APPELLANT No.1 IS THE DAUGHTER OF NEELU APPELLANT No.2 TO 4 ARE THE CHILDREN OF HONNAMMA (A2) APPELLANT No.5 IS THE DAUGHTER OF AKKU. APPELLANT No.6 TO 11 ARE THE CHILDREN CHINNAMMA(A5).
ALL ARE MAJORS, NOW RESIDING AT KERENDAR OF MADNUR VILLAGE, PUTTUR TALUK, P.O.KAVU, D.K.DISTRICT – 574 201.
….APPELLANTS (BY SRI A KESHAVA BHAT, ADVOCATE FOR A-9 SRI VISHWANATHA POOJARY K, ADVOCATE FOR A-1 TO 8 AND A-10 AND 11) AND:
1. RAMAKKA 2. SHARADA (SINCE DEAD BY LRS) LRS ARE ALREADY ON RECORD AS R1, R3, R4 AND R6.
3. VARIJA 4. MOHANA 5. CHANDRAVATHI (SINCE DEAD BY LRs LRs ARE ALREADY ON RECORD AS R1, R3, R4 AND R6.
6. DIVAKAR RESPONDENT IS THE DAUGHTER OF AKKU RESPONDENTS No.2 TO 6 ARE THE CHILDREN OF 1ST RESPONDENT – RAMAKKA ALL ARE MAJORS, RESIDING AT KEREMAR OF MADNUR VILLAGE PUTTUR TALUK, P.O.KAVU – 574 201.
7. AMMU POOJARY 8. ANNU & SHESHAPPA (SINCE DEAD) 8(a) SEETHA 8(b) JALAJAKUMARI 8(c) PRAJWAL ALL ARE MAJORS, R/O MADNOOR VILLAGE PUTTUR TALUK, D.K.DISTRICT – 574 201.
9. BHIMU POOJARY (SINCE DECEASED) 9(a) CHANIAPPA POOJARY 9(b) RAMANNA POOJARY 9(c) SHESAPPA POOJARY ALL ARE MAJORS, SONS OF LATE BIMU POOJARY AND RESIDING AT SIMMINJA POST KAVU MADNOOR VILLAGE.
10. DEYE (SINCE DEAD BY LRs) LR IS ALREADY ON RECORD AS 11(b) 11. KANTHU POOJARY (SINCE DECEASED) 11(a) KAMALA D/O KANTHU POOJARY (SINCE DEAD BY LRs) LRs IS ALREADY ON RECORD AS 11(b) 11(b) THIMMAPPA POOJARY S/O KANTHU POOJARY 12. POOVA POOJARY (SINCE DEAD BY LRs) LRs IS ALREADY ON RECORD AS APPELLANT No.5 AND R1 13. INDIRAVATHI (SINCE DECEASED) 13(a) SARASWATHI 13(b) JAYA 13(c) KESARI 13(d) RAVI ALL ARE MAJOR, R/O MADNOOR VILLAGE, KAVU POST, PUTTUR TALUK, D.K. DISTRICT – 574 201.
14. RAMAKKA 15. NARANAPPA (SINCE DECEASED) 15(a) SARASWATHI 15(b) JAYA 15(c) KESARI 15(d) RAVI ALL ARE MAJORS, R/O MADNOOR VILLAGE, KAVU POST, PUTTUR TALUK, D.K. DISTRICT – 574 201.
16. JATHAPPA 17. BABU (SINCE DECEASED) 17(a) BHAVANI 17(b) VISHWANATH MAJORS, R/O MADNOOR VILLAGE, KAVU POST, PUTTUR TALUK, D.K. DISTRICT – 574 201.
18. SANJEEVA (SINCE DEAD BY LRs) LRS ARE ALREADY ON RECORD AS R14 AND R16.
19. RADHAKRISHNA 20. PUSHPALATHA 21. SUNDARA 22. LALITHA 23. PUTTA (SINCE DEAD BY LRs) 23(a) YAMUNA 23(b) PADMAVATHI 23(c) SUNDARY 23(d) RAMANNA 23(e) ANANDA 23(f) JANARDHANA (SINCE DECEASED) 23(f1) SHEELA 23(f2) NITHIN 23(f3) NISHMITHA 23(g) UMAVATHI 23(h) REVATHI ALL ARE MAJORS, 23(a) TO 23(e) AND 23(g) AND 23(h) ARE CHILDREN OF PUTTA, R/O MADNOOR VILLAGE 23(f1) TO 23(f3) ARE CHILDREN OF JANARDHAN KAVU POST, PUTTUR TALUK, D.K. DISTRICT – 574 201.
24. CHENNAPPA (SINCE DECEASED) 24(a) SUSHEELA 24(b) SURESH 24(c) PUSHPARAJ ALL ARE MAJORS, CHILDREN OF CHENNAPPA, R/O MADNOOR VILLAGE KAVU POST, PUTTUR TALUK, D.K. DISTRICT – 574 201.
7TH RESPONDENT IS THE S/O CHEMU HENGSU 8TH RESPONDENT IS THE S/O AKKU.
7TH AND 8TH RESPONDENT ARE RESIDING AT KEREMAR OF MADNOOR VILLAGE PUTTUR TALUK, D.K.
RESPONDENTS 3 TO 11 ARE CHILDREN OF LATE DOOMA POOJARY, 9TH RESPONDENT RESIDES AT SIMMIJJA OF MADHUR VILLAGE P.O.KAVU, 10TH RESPONDENT IS THE WIFE OF PADDITHA PUTHU POOJARY RESIDES AT SIDDAPURA P.O., COORG DISTRICT 11TH RESPONDENT RESIDES AT IRKULI P.O. GODDU MANJARBAD TALUK HASSAN DISTRICT, 12TH RESPONDENT IS THE HUSBAND OF AKKU. RESIDING AT KEREMAR OF MADNUR VILLAGE PUTTUR TALUK, 13TH RESPONDENT IS THE WIDOW AND RESPONDENTS 14 TO 22 ARE THE CHILDREN OF LATE AMMU POOJARY.
25. P. SEETHARAMA BHAT S/O P NARAYANA BHAT AGED:43 YEARS AGRICULTURIST R/AT BAREKERE OF MADNOOR VILLAGE POST:KAVU, PUTTUR TALUK.
…RESPONDENTS (BY SRI K SHRIHARI, ADVOCATE FOR R-1; SRI PRASANNA V R, ADVOCATE FOR R-23(a); SRI GANESH BHAT G H, ADVOCATE FOR CAVEATOR R-25;
SRI SACHIN B S, ADVOCATE FOR M/S DHARMASHRE ASSTS. FOR R-16 & 21; SRI SACHIN B S, ADVOCATE FOR R-11(b); NOTICE TO R-4 & 6, HELD SUFFICEINT V/O DTD. 17/12/2014, NOTICE TO R-9(c) IS HELD SUFFICEINT V/O DTD. 25/1/2017, NOTICE TO R-23(a) HELD SUFFICEINT V/O DTD. 6/4/2017, NOTICE TO R-23(f)(2) & R-23(f)(3) HELD SUFFICIENT V/O DTD.1.6.2017 R-7 IS DEAD AS PER CAUSETITLE R-1, 3, 4 & 6-ARE LRS. OF DECEASED R-2 R-11(b) IS LRs OF DECEASED R-10 & R-11(a) A-5 & R-1 – LRs OF DECEASED R-12.
R-14 & R-16 ARE LRs OF DECEASED R-18. R-1, 3, 4 & 6 LRs OF DECEASED R-5) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED. 19.4.2008 PASSED IN R.A.No.41/90 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, (SR.DN), PUTTUR, DK., DISMISSING THE APPEAL AS ABATED FILED AGAINST THE ORDER DATED 25.8.1988 PASSED ON FDP No.4/76 IN OS 186/72 ON THE FILE OF THE PRINCIPAL MUNSIFF, PUTTUR, D.K., ALLOWING IA No.XVIII.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the appeal is listed for Admission, with the consent of the parties, THE same is taken for final disposal.
This appeal by the defendants 3,5 to 14/appellants is directed against the judgment and decree passed in Regular Appeal No.41/1990 by the Civil Judge (Sr.Dn) at Puttur, Dakshina Kannada, on 19.04.2008, wherein Regular Appeal filed by the appellants came to be dismissed as abated with costs.
2. In order to avoid confusion and overlapping, parties hereinafter are referred to with reference to their rankings as stood before the Trial Court.
3. Originally, O.S.No.186/1972 is filed by six plaintiffs, viz., (1) Ramakka; (2) Sharada; (3)Varija; (4) Mohan; (5) Chandravathi and (6) Diwakara, seeking partition of the suit schedule properties against 19 defendants viz., (1) Ammu Poojary; (2) Putha;
(3)Honnamma; (4)Chennamma; (5) Koragappa; (6) Baby;
(7) Sheela; (8)Channamma; (9) Krishnappa; (10) Bagi;
(11) Monappa; (12) Shivarama; (13) Yashoda; (14) Jalaja; (15) Annu @ Sheshappa; (16) Birmu Poojary; (17) Deyi; (18) Kanthu Poojary and (19) Poova Poojary.
4. The learned trial Judge, after considering the oral and documentary evidence made available by the parties, has decreed the suit on 21/1/1976 as under:
“In the result and for the reasons stated above the suit is decreed declaring that the plaintiffs are entitled for 25/92 share in all the suit ‘A’ schedule properties. It is directed that all the suit ‘A’ schedule properties shall be divided into 92 equal shares by metes and bounds and the plaintiffs shall be allotted 25 such shares. There shall be an enquiry under Order XX Rule 12 C.P.C. for ascertaining the future mense profits. Defendants 1 and 16 shall pay the costs of the plaintiffs. The other defendants shall bear their own costs.”
5. Thereafter, plaintiffs instituted Final Decree Proceedings in FDP No.4/1976 and matter was referred to Deputy Commissioner for effecting partition and division of the properties and accepting the report of the Deputy Commissioner final decree was passed on 25.8.1988. The legal representatives of the erstwhile defendants have questioned the order passed in Final Decree Proceedings 4/1976 in R.A.No.41/1990 which was dismissed as abated on 19.4.2008.
6. The relationship, existence of the properties, rights of the members of the joint family are not in dispute.
7. Sri. A. Keshav Bhat, learned counsel for the appellants would submit that the Appellate Court has not considered the rights of the legal representatives of the deceased defendants in proper perspective as they were deprived of their dues. He would further submit that the regular appeal came to be preferred against the result the proceedings in which the division of shares on the basis of the preliminary decree was made. None of the parties have challenged the preliminary decree.
8. The learned counsel for appellants would further submit that the trial court accepted the court fee and directed the Advocate Court Commissioner to allot separate shares to the appellants.
9. Per contra, Sri. K.Srihari, learned counsel for respondents would submit that prima-facie it may appear as legal representatives have not been brought on record, however, rights of the parties have been finally determined and no prejudice is caused either to plaintiffs or the defendants. There is no material effect causing deprival of vested rights because of the decree passed by the First Appellate Court. On the other hand, the decree having been acted upon and the parties have settled in proportionate share and to the rights as declared by the court. Further, they are in separate possession and enjoyment of the properties in accordance with the decree of the Appellate court in terms of final decree passed by the trial court.
10. The substantial questions of law raised in the memorandum of appeal are as under:
“1) Whether deaths of any of the parties is material as their legal representatives are already on record ?
2) Whether partition is binding on legal heirs when the partition effected in the presence of the heads of the branch in Hindu undivided family members governed by Aliyasantha law.
3) When the preliminary decree is not challenged, execution of the decree is challenged in between several family members, one of the parties died, no relief claimed against him whether proceedings vitiated against other parties claimed relief against them.
4) Whether appeal is abated where there is no circumstances of complicating decrees, when the preliminary decree is not challenged.”
11. In the context of the facts and circumstances of the second appeal, the only point of law would be:
Whether in a partition proceedings when final decree proceedings are over each of the eligible litigant is allotted his or her share, then in case of death of such party whether proceedings get vitiated if the legal representatives of such party are not brought on record, or is it sufficient even if they are not, as there is no material effect in respect of the share that goes to the family of such person?
12. The evidence that was considered by the trial court on behalf of plaintiffs is, the oral evidence of PW1-Ramakka and documentary evidence of Ex.P1 and on behalf of defendants, oral evidence of DWs 1 to 5 and documentary evidence of Exs.D1 to D52.
13. As stated above, totally, there were 06 plaintiffs and 19 defendants and they continued till the disposal of original suit and the number remained the same. The preliminary decree is not challenged and case entered the stage of final decree. None of the parties to the litigation died during the pendency of the final decree proceedings. Subsequently, the death of certain parties took place during the pendency of the proceedings in R.A.No.41/1990 under which the order passed in FDP No.4/1976 was challenged.
14. Further while dismissing the regular appeal as abated, the learned Appellate Judge in the judgment at para No.18 has noted the appellants and respondents who died. In this connection, it is necessary to reproduce the said para which read as under:
“18. During the pendency of this appeal several parties died and the memo dated 9.8.2004 by the learned counsel for respondent No.1 shows that:
“The 3rd appellant Chennappa died about 5 months ago. The 18th respondent Sanjiva died 10 months ago. 2nd respondent Sharada died 7 years ago. 5th respondent died 5 years ago. 8th respondent Annu @ Sheshappa, 9th respondent Bire, 10th respondent Deyi, 11th respondent Kanthu, 12th respondent Poova, 17th respondent Babu have died after filing of appeal”.
15. Thus, it is clear that out of the appellants, 3rd appellant Chennappa died about 5 months ago; 10th respondent- Sanjiva died 10 months ago; 2nd respondent-Sharada died 7 years ago, 5th respondent died 5 years ago, 8th respondent Annu @ Sheshappa, 9th respondent- Bire, 10th respondent- Deyi, 11th respondent- Kanthu, 12th respondent- Poova, 17th respondent- Babu have died after filing of appeal. The said report regarding the deaths is filed by the parties before the court in the memo dated 9.8.2004.
16. By virtue of dismissal of regular appeal, the state of affairs reverts to square one i.e. in terms of the order passed in FDP under which the plaintiffs and the defendants were allotted the shares.
17. The terms of Preliminary decree passed in O.S.NO.186/1972 is as under:
“In the result and for the reasons stated above the suit is decreed declaring that the plaintiffs are entitled for 25/92 share in al the suit ‘A’ schedule properties. It is directed that all the suit ‘A’ schedule properties shall be divided into 92 equal shares by metes and bounds and the plaintiffs shall be allotted 25 such shares. There shall be an enquiry under Order XX Rule 12 C.P.C. for ascertaining the future mense profits. Defendants 1 and 16 shall pay the costs of the plaintiffs.”
18. It goes without saying that the right of defendants to the share was not rejected. Under these circumstances, the final decree was drawn marking the final disposal of the original suit. The appeal was preferred wherein the defendants/appellants sought for setting aside the order passed in FDP. (None of the partner are seeking enhancement of their shares nor reduction in the others).
19. As many of the appellants and respondents died during the pendency of the appeal and their legal representatives did not come on record, in this connection, learned counsel for respondents would submit that the respective deceased appellants were already on record before their death and the comprehensive share of each appellants was earmarked and there was no necessity to bring the legal representatives on record and the appellate court in its wisdom felt that, irrespective of the developments regarding legal representatives of the deceased parties may be respondents or appellants should have been brought on record and in the light of the non bringing of the legal representatives, the learned First Appellate Judge came to a conclusion to dismiss the appeal as abated and accordingly dismissed the appeal. In the background of the above set of facts, the present appeal came to be filed.
20. Originally the preliminary decree was passed in O.S.No.186/1972 on 21.01.1976 which was not challenged by either of the parties. As such FDP No.4/1976 is for the formalities of demarcation of shares and other aspects.
The final decree was passed on 25.08.1988 by the Court of the Principal Munsiff, Puttur, Dakshina Kannada in F.D.P.No.4 of 1976 by accepting the Report of the Deputy Commissioner.
The operative portion of the final decree proceedings is as under:
“I.A.No.XVIII is allowed with costs. Draw final decree accordingly. The advocate fee is fixed at Rs.100/-.”
21. It was against the said final decree, Regular Appeal in R.A. No.41/1990 was filed. At this juncture, it is necessary to mention that the formalities of final decree and its consequential outcome is challenged but not the preliminary decree. Thus, the matter within the scope of Final Decree Proceedings are those which could have gone into the original stage. It is necessary to mention that when the final decree was drawn, enquiry under Order XX Rule 12 of C.P.C. is not mentioned.
22. The learned counsel for the appellants would submit that the entire proceedings of the final decree is vitiated by non-granting of opportunity to the appellants who are none other than the legal representatives of Respondents No.2, 5, 8, 9, 10, 11, 12, 17 and 18. Regarding the death of the parties before the trial court and the First Appellate Court is concerned, the same is available at Para No.18 of the Judgment.
23. At the cost of repetition, for statistical purpose, original suit No.186 of 1972 was filed on 31.05.1972, and thereafter, R.A.No.41 of 1990 came to be filed against the order of FDP No. 4/1976. It is necessary to make a mention that preliminary decree was not challenged by either of the parties and it became final. However, final decree proceeding for the formalities of partition between the parties by metes and bounds was filed in FDP No.4 of 1976 and that came to be allowed on 25.08.1988.
24. Thus, the main grievance of the learned counsel for the appellants is that vested rights of the legal representatives of the deceased respondent No.11 before the First Appellate Court is prejudicially affected and the learned First Appellate Judge dismissed the appeal as abated on 19.04.2008. It is significant to note that Respondents No.2, 5, 8, 9, 10, 11, 12, 17 and 18 are dead. The date of death are mentioned in the earlier para.
25. It is the contention of the learned counsel for the appellants that it was not open for the learned First Appellate Judge to dismiss the appeal as abated. On the other hand, it ought to have disposed of the matter on merits. In the circumstances, it has to be seen, whether the discussion made by the learned First Appellate Judge is totally confined to the question of legal representatives being not brought on record or it was totally on the basis of procedural aspects. To a considerable extent, the learned appellate judge has discussed about partitioning the suit schedule land and filing of the report by the Deputy Commissioner and that the division made by him being accepted.
26. At this stage, it is necessary to make a cursory glance of Order 26 Rule 13 of CPC, wherein, it is stated that, parties who are seeking the demarcation of property to file objections to the report of the Deputy Commissioner and thereafter, leave it to the court to consider their grievance on the report. The options available before the court under the said provisions of the law is to accept the report or alter or modify the terms or reject it and refer back to the Deputy Commissioner with observations. But in the instant case, no such grievance or objections filed to the report are seen. However, at para No.19 of the judgment, learned First Appellate Judge has observed as under:
“19. Further, the learned for Respondent No.1 also filed the list with column showing the rank of parties in O.S.No. 186/1992. Final Decree Proceedings No.4 of 1976 and this Appeal No.41 of 1990 and also the details of death and living of parties on 08.09.2007. Infact, the details of deceased parties in the above said memo and list remained unchallenged from appellants side and no any steps taken as per procedure under law to bring the legal representatives of the deceased parties in this appeal by the appellants. After hearing in this regard, the learned counsel for the appellants filed his written arguments contending that besides in the light of these facts deaths of any of the respondents is immaterial as their legal representatives are already on record. Even otherwise, in any Aliyasanthana family partition effected in the presence of heads of branch family is valid and binding on all the parties. Hence, the appeal can proceed with the remaining parties xxxxxx”.
27. The appeal came to be dismissed as abated.
It is necessary to make a mention that when the joint family properties are partitioned where a specified share is allotted to a party may be declined unless contrary is observed equals are to be treated alike and it is only a question of paying applicable court fee. In the circumstances, the aspect here is, the share of the parties is reflected in the operative portion of the judgment in the original suit which will not vary till the conclusion of final decree proceedings and shares of each of them was kept intact.
28. While disposing the appeal, it is necessary to place on record that the disposal of the appeal by the appellate Court is not purely on basis of procedural aspects resulting in abatement, but substantive aspects are also discussed. More particularly, the parties who claimed partition may be plaintiff directly or the defendant indirectly. It is in this connection, the learned First Appellate Judge observed that the appellants cannot seek remedy before the appellate court without bringing the legal representatives of the deceased parties on record. Thus, the appeal was dismissed as abated.
29. It is necessary to repeat that preliminary decree was not challenged and it is final decree and moreover, there is no grouse regarding the quantum of share allotted to a particular party. When such being the case, it is the job of final decree to give finality to the preliminary decree. When such being the state of affairs, the deceased respondents represent their particular families or particular branch. In the circumstances and facts considering the claims and contentions of the parties, the appellate proceedings do not cause serious or irreversible effects. The parties have been granted shares as stated above. In the circumstances, it is those parties to hoop what is allotted to them and this partition would be available to be possessed and enjoyed at their own volition. It is not the case that the application was being filed to bring the legal representative on record and the appeal is abated. The substantive aspects of the case would be that a person who admits the terms of plaint regarding the joint family properties, joint possession, partition and the share of the plaintiff, if other things are being equal, he is entitled for his share and that is not lost.
30. Now, the question of effect of dismissal on the basis of abatement. In this connection, main focus should be miscarriage and prejudicial effect on the persons or the legal representatives. It is necessary to make out that by virtue of such order, not going in appeal, the legal representatives cannot be deprived of their legitimate share in the joint family properties at par with the other properties and at the same time, they cannot claim beyond the shares defined and designated in the decree. If preliminary decree mentions only in respect of a particular person be the appellant or defendant, it is left out to them as the case may be to get the share confirmed by metes and bounds. When such is the case, Courts cannot be asked to wait till eternity when the parties do not come before the court in response to summons or having appeared and failed to contest.
31. Similarly, in case of death of any of such persons, if their legal representatives follow the suit of the deceased, the matter cannot be placed in suspended animation. More particularly, when there is no prejudicial effect to the legal representatives and logical end of the case could be reached on the given materials. Thus, keeping in view of both the aspects, it is necessary to mention the decision relied upon by the learned counsel for the respondent, reported in LAWS (SC)-2010-8-2 (Budh Ram Vs. Bansi), wherein para No.19 reads as under.
“Therefore, the law on the issue stands crystallised to the effect that as to whether non-substitution of LRs of the defendants/respondents would abate the appeal in toto or only qua the deceased defendants/respondents, depend upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not inter-dependent upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the Court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis- vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test.”
32. It is necessary to observe that between the substantive aspect which form the material part of the adjudication, the procedural aspect cannot be allowed to over ride and restart the substance.
33. In the context and circumstances of the case, it is necessary to observe that the legal representatives of the deceased appellant or respondent, if any, cannot claim independent right by themselves. On the other hand, their share is for branch and not for strips. In the circumstances, I find the concluding part of the judgment by the First Appellate Court may end with abated. In the sense, when the deceased respondents are not necessary to be brought on record.
At this stage, it is necessary to mention Order 22 Rule 6 which reads as under:
“6. No abatement by reason of death after hearing: Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.”
34. Dismissal of the appeal as abated does not affect the rights of existing parties or the legal representative of the deceased parties. Regard being had to the fact that the vested right of share per branch remains unaffected.
35. Thus, unless a hitch is present in the proceedings at the substantial level, the matter cannot be delayed for a formality that is not essential. In the judgment at Para No.9, the learned appellate judge has observed that the enquiry under Order 20 Rule 12 was conducted. In the facts and circumstances of the case, I find no party be the plaintiff or defendant or legal representatives of the deceased are not prejudicially affected as their respective shares are intact and the judgment does not come in the way of share of the parties for grant by virtue of non-participation or non- impleading them on record. Hence the substantial question of law is accordingly answered.
36. For the foregoing reasons, there is no infirmity or illegality in the judgment dated 19.4.2008 passed in RA No.41/90 by the Principal Civil Judge(Sr.Dn) Puttur, DK., which calls for interference by this Court and the same is hereby confirmed. Hence, the appeal is dismissed being devoid of merits.
Parties to bear their own costs.
tsn*/DH Sd/- JUDGE