IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN REGULAR FIRST APPEAL NO.1607 OF 2017 (PAR) BETWEEN:
1. SMT. KAVITHA D.S. W/O. C. SUNIL, D/O. LATE D.S. SHIVANANDA, AGED ABOUT 41 YEARS, RESIDENT OF #1220, 1ST MAIN, VIJAYANAGAR, BENGALURU – 40.
2. SMT. SUREKHA C.N. W/O. MOHAN, D/O. LATE C.S. NAGANNA, AGED ABOUT 45 YEARS, WORKING IN THE OFFICE OF DIRECTORATE OF TREASURIES, VISHVESHWARIAH MINI TOWERS, PHODIUM BLOCK, DR. AMBEDKAR ROAD, BENGALURU - 01.
3. SMT. NAGARATHNAMMA W/O. LATE CHANDRASHEKAR C.S., AGED ABOUT 70 YEARS, HOSAMANE EXTN., CHIKMAGALUR – 577 101.
4. SMT. PADHMINI W/O. DHAYANIDHI B.S., AGED ABOUT 64 YEARS, #11, 16TH CROSS, 6TH MAIN, MALLESHWARAM, BENGALURU - 03.
5. SMT. DEVAMBIKA W/O. MANJUNATH, AGED ABOUT 62 YEARS, #12-C, 2ND FLOOR, 1ST CROSS, 1ST BLOCK, 50 FEET MAIN ROAD, HANUMANTHNAGAR, BSK 1ST STAGE, BENGALURU – 50.
... APPELLANTS (BY SRI K.R. LINGARAJU, ADVOCATE) AND:
1. SMT. C.S. ANUSUYA AGED ABOUT 51 YEARS, W/O. B.H. SIDDESH, D/O. LATE C.S. RAJASHEKAR, RESIDENT OF DONIKANA, CHIKMAGALUR – 577 101.
2. SMT. C.R. SHASHIREKHA AGED ABOUT 49 YEARS, W/O. RAVISHANKAR, D/O. LATE C.S. RAJASHEKAR, C/O. K.C. BASAVARAJ, RTD. SANSKRIT TEACHER, NO.146, VIJAYALAKSHMI ROAD, SRINIVASAPURA TOWN AND TALUK, KOLAR DISTRICT – 563 101.
3. SRI C.R. DINESH AGED ABOUT 47 YEARS, S/O. LATE C.S. RAJASHEKAR, RESIDING AT DONIKANA, CHIKMAGALUR – 577 101.
4. SMT. C.R. MALINI AGED ABOUT 45 YEARS, W/O. C.R. NIRVANA SWAMY, D/O. LATE C.S. RAJASHEKAR, RESIDING AT DONIKANA, CHIKMAGALUR – 577 101.
... RESPONDENTS (BY SRI SACHIN B.S., ADVOCATE, FOR R-3, SRI VIGHNESHWAR S. SHASTRI, ADVOCATE, FOR R-
4;
R-1 & R-2 ARE SERVED AND UNREPRESENTED) * * * THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF C.P.C. AGAINST THE JUDGMENT AND DECREE DATED 8-7-2014 PASSED IN O.S. NO.120 OF 2012 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, CHIKMAGALUR, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS REGULAR FIRST APPEAL COMING ON FOR ORDERS, THIS DAY, NAGARATHNA, J., DELIVERED THE FOLLOWING:
J U D G M E N T I.A. No.1 of 2017 has been filed by the appellants seeking permission to prosecute this regular first appeal.
2. We have heard learned counsel for the appellants, learned counsel for respondent No.4 and perused the material on record.
3. For the sake of convenience, parties herein shall be referred to in terms of their status before the trial Court.
4. Briefly stated, the facts are that, respondent No.4 had filed Original Suit No.120 of 2012 on the file of the I Additional Senior Civil Judge, Chikmagalur, seeking the relief of partition and separate possession of her 1/4th share in the suit schedule properties. The suit schedule properties are as under:
S C H E D U L E “1. House and site property measuring 24 feet x 43 feet, vide Chikmagalur Municipal Assessment No.1331/1204, situated at Chikmagalur Town, Donikana Extension with following boundaries:
East : 2nd main road of Donikana Extension, West : Property of M.A. No.868/868, North : Raj brothers house, South: House of Nagaraj, 2. House and site property measuring 68 feet x 27 feet, vide Chikmagalur Municipal Assessment No.1313/1189, situated at Chikmagalur Town, Donikana Extension with following boundaries:
East : House property of M.A. No.882/878, West : Belur Road, North : House of Nagaraj, South: Raj brothers house, 3. House and site property measuring East-West 82 feet x 30 + 26/2 feet, vide Chikmagalur Municipal Assessment No.1341/1214, situated at Chikmagalur Town, Donikana Extension with following boundaries:
East : 2nd main road of Donikana Extension, West : House property of Devanaika, North : House property of Nirvanappa Gowda, South: House of Ramanaika.
4. Three acres 12.08.00 guntas of land in Sy.No.120 of Chikmagalur Village, Kasaba Hobli, Chikmagalur Taluk.
East : Land Subbaiah, West : Kuluvadi field and kana, North : Malmalli Gadde, South: Back yard of Gangaiah.”
5. It is the case of respondent No.4-plaintiff that she and defendant Nos.1 and 2 are the daughters and defendant No.3 is the son of C.S. Rajashekar and Sharadamma. Suit schedule properties are joint family properties of the parties to the suit and the parties to the suit are members of the joint family. There is no partition effected between the members of the joint family. Plaintiff demanded partition of the suit schedule properties, but defendant No.3 refused to effect the partition. Left with no other alternative, the plaintiff filed the suit seeking the relief of partition and separate possession of her 1/4th share in the suit schedule properties.
6. In response to suit summons, defendants appeared before the trial Court through their respective counsel and defendant Nos.1 and 2 filed common written statement stating that they are also entitled to 1/4th share each in the suit schedule properties along with the plaintiff and defendant No.3. They sought for decreeing the suit, but defendant No.3 filed separate written statement contending that the plaintiff and defendant Nos.1 and 2 had already relinquished their rights over the suit schedule properties, therefore, they are not entitled for any relief in the suit schedule properties. Hence, he sought for dismissal of the suit.
7. On the basis of the aforesaid pleadings, the trial Court framed the following issues as well as additional issues for its consideration:
“i. Whether the plaintiff proves that the suit schedule properties are their ancestral and joint family properties and she has got right to claim share over the suit properties?
ii. Whether the defendant No.2 proves that he has also got share over the suit properties?
iii. Whether the plaintiff is entitled for the relief claimed in the suit?
iv. What order or decree?
ADDITIONAL ISSUES:
i. Whether the defendant No.1 proves that she has also got share over the suit properties?
ii. Whether the defendant No.3 proves that the plaintiff, defendant No.1 and 2 and Sharadamma have relinquished their right over the suit schedule properties in his favour?
iii. Whether the suit is properly valued and requisite court fee is paid on the plaint?
iv. Whether the defendant No.3 proves that in view of the suit filed in O.S. No.9/2003 and R.F.A. No.657/2012, the present suit is not maintainable?”
8. In support of her case, plaintiff examined herself as P.W.1 and ten documents were produced by her, which were marked as Ex.P.1 to P.10. Defendants examined three witnesses as D.W.1 to D.W.3, but did not mark any document. On the basis of evidence on record, the trial Court answered issue Nos.1 to 3 and additional issue Nos.1 and 3 in the affirmative and additional issue Nos.2 and 4 in the negative and decreed the suit of the plaintiff holding that the plaintiff and defendants are each entitled to 1/4th share in the suit schedule properties.
9. At this stage, it may be mentioned with reference to the statement of objections filed by respondent No.4 to I.A. No.1 of 2017 seeking permission to prosecute this appeal that preliminary decree impugned in this appeal was challenged by defendant No.3 in R.F.A. No.73 of 2017. A co-ordinate Bench of this Court, by judgment dated 14-3-2017 dismissed the said appeal. Even prior to that, final decree proceeding (F.D.P. No.27 of 2014) was initiated by the plaintiff which culminated in order dated 11-12-2015 under which, the suit schedule properties were allotted to the respective parties and direction was issued for drawing up of final decree. Subsequent thereto, R.F.A. No.594 of 2016 was filed before this Court by defendant No.3 challenging the proceedings in F.D.P. No.27 of 2014.
A co-ordinate Bench of this Court dismissed the said appeal. As already noted, subsequently, R.F.A. No.73 of 2017 was filed by defendant No.3, which was also dismissed on 14-3-2017. Therefore, the suit proceeding culminated in drawing up of a final decree and the respective parties were allotted their respective shares in the impugned judgment. When the matter stood thus, the appellants have preferred this appeal assailing the judgment dated 8-7-2014 passed in Original Suit No.120 of 2012 by the trial Court.
10. There is delay of 1067 days in filing the appeal.
Be that as it may, in the first instance, the appellants herein have filed I.A. No.1 of 2017 seeking leave or permission to prosecute this appeal. It is in the above background, we have heard learned counsel for the appellants and learned counsel for respondent No.4.
11. Appellants’ counsel contended that the appellants herein are also belonging to the family of C.V. Siddappa Gowda and Rudramma. It is admitted that on the demise of C.V. Siddappa Gowda, there was a partition in the family on 29-3-2001, in which the suit schedule properties were allotted to the share of Rajashekar. That no doubt, the suit schedule properties, which are the subject matter of the suit for partition and separate possession, belonged to the family of C.V. Siddappa Gowda and respondent No.4-plaintiff has sought for partition of her share in the share that would fall to her father-Rajashekar since deceased. However, there is one more suit, which was filed by Sharadamma, wife of late B.M. Mallikarjuna, against the appellants as well respondent No.4 herein amongst other parties. That suit had also been filed for partition and separate possession. That suit has been dismissed, against which, R.F.A. No.657 of 2012 has been filed. Appellants herein are aggrieved by the impugned judgment and decree since the suit schedule properties which are subject matter of the impugned judgment and decree are also the suit schedule properties in R.F.A. No.657 of 2012 which arises out of Original Suit No. 9 of 2003, which has been filed by Sharadamma and the suit has been dismissed. Therefore, the appellants are aggrieved by the final decree being drawn in the suit out of which this appeal arises pursuant to preliminary decree being granted by the impugned judgment and decree. He submitted that in Original Suit No.9 of 2003, the suit schedule properties in this suit have also been included and therefore, the appellants herein though not parties in the suit, out of which this appeal arises, have been constrained to file this appeal to assail the impugned judgment and decree dated 8-7-2014 passed in Original Suit No.120 of 2012 and permission may be granted to prosecute the appeal.
12. Per contra, learned counsel for respondent No.4, at the outset, contended that the suit filed by respondent No.4-plaintiff is in respect of right, title and interest vis-à- vis her father’s share in the suit schedule properties and not anybody else’s share. Same has been granted by the trial Court. The appellants herein do not belong to the family of Rajashekar, but belong to his siblings’ families.
That the appellants are no way prejudiced by the decree granted by the trial Court. In the instant case, the preliminary decree has attained finality as it has culminated in the final decree. That on two occasions, defendant No.3 in the suit had approached this Court assailing both preliminary decree as well final decree and was unsuccessful. That the appellants herein do not belong to the family of Rajashekar and they cannot have any reason or ground to challenge the decree dated 8-7- 2014 passed in Original Suit No.120 of 2012 by the trial Court. He further submitted that both the appellants herein as well respondent No.4-plaintiff are defendants in the suit filed by Sharadammma and others in Original Suit No. 9 of 2003 which consists of the properties of family of Gangamma, Mallamma and Rudramma, whose parents are Halagappagowda and Gangamma. Rudramma is the wife of C.V. Siddappa Gowda, who are the grand-parents of the plaintiff. That Original Suit No.9 of 2003 has been dismissed and the dismissal of the said suit has resulted in the plaintiffs therein filing R.F.A. No.657 of 2012. That the said appeal has no nexus with the appeal filed by the appellants herein. He submitted that when the Co- ordinate Bench of this Court has affirmed the final decree being drawn subsequent thereto, at this stage, after the delay of 1067 days, the appellants herein who are not parties to the suit cannot have any locus-standi to assail the impugned judgment and preliminary decree passed in the suit, that too, after the filing of the final decree. That they are estopped from doing so. He submitted that permission may not be granted to prosecute the appeal and I.A. No.1 of 2017 may be dismissed and consequently, the appeal may also be dismissed.
13. The detailed narration of facts and contentions would not call for a reiteration except highlighting the fact that respondent No.4-plaintiff sought a share as against her two sisters and brother, who are the children of Rajashekar @ Veerannagowda and Sharadamma. Rajashekar @ Veerannagowda and Sharadamma are the son and daughter-in-law of C.V. Siddappa Gowda and Rudramma. Plaintiff had sought for her 1/4th share in respect of the suit schedule properties which have been held to be ancestral and joint family properties which had fallen to their father’s share and in which, she has got a share to an extent of 1/4th. In fact, the trial Court has also held that all the parties to the said suit have an equal 1/4th share each. It has also been held that Original Suit No.9 of 2003 which was filed by Sharadamma has resulted in R.F.A. No.657 of 2012 pending before this Court which has no nexus to the suit. Further, the judgment and decree impugned in this appeal has culminated in final decree being granted in F.D.P. No.27 of 2014 wherein, the suit schedule properties have been allotted to the respective parties. Challenge made to the order dated 11-12-2015 passed in F.D.P. No.27 of 2014 by defendant No.3 in the suit has been negatived by a Co-ordinate Bench of this Court. Further, challenge made by the very same defendant No.3 to the judgment and decree impugned in this appeal has also been turned down by this Court in R.F.A. No.594 of 2016 and R.F.A. No.73 of 2017 respectively. Thus, vis-à-vis suit schedule properties, there has been a finality in the litigation which has been achieved and though there were challenges to the impugned judgment and decree by defendant No.3 in the suit, the same have been negatived by this Court. Now, at the instance of appellants herein, who belong to the families of Parvathamma, Shivananda, Naganna and Chandrashekar, who are siblings of Rajashekar, this appeal cannot be maintained. It is clarified that the right, title and interest of the respondents as well as her siblings are in respect of share that fell to the share of their father- Rajashekar @ Veerannagowda and it is not the contention of the appellants that the suit schedule properties are those, which had been allotted to other brothers and sisters of Rajashekar @ Veerannagowda and in which the plaintiffs are seeking a share.
14. Further contention of appellants’ counsel is that the suit filed by Sharadamma in Original Suit No.9 of 2003 which was dismissed by the Court of the Senior Civil Judge, Chikmagalur on 12-12-2011 is a subject matter of R.F.A. No.657 of 2012 wherein, the appellants herein, respondent No.4 and others were defendants and who are respondents in the said appeal is the reason for filing this appeal assailing the impugned judgment and decree. Even if for a moment it is assumed that four items of the suit schedule properties in this appeal have also been incorporated in the plaint Schedule of Original Suit No.9 of 2003 filed by Sharadamma, the same would not give any locus-standi to the appellants herein to assail the judgment and decree passed in the suit filed by respondent No.4-plaintiff. As already narrated, Sharadamma had filed Original Suit No.9 of 2003 in respect of certain properties. Said Sharadamma belongs to the family of Halagappagowda. Halagappagowda had three daughters, by name, Gangamma, Mallamma and Rudramma. It may be that Rudramma is the wife of C.V. Siddappa Gowda, but that does not imply that the suit schedule properties, which belong to the family of C.V. Siddappa Gowda could be the subject matter of Original Suit No.9 of 2003. That may the reason as to why Original Suit No.9 of 2003 filed by Sharadamma was dismissed, at any rate, that is the subject matter of R.F.A. No.657 of 2012. The above is only a prima-facie opinion. By that fact, the appellants cannot claim to have any locus-standi to assail the impugned judgment and decree by filing this appeal. Therefore, we find no reason to permit the appellants to prosecute this appeal. They have no locus- standi to do so. In the circumstance, I.A. No.1 of 2017 is dismissed. Consequently, the appeal is dismissed.
In view of the dismissal of the appeal, all pending applications stand dismissed.
SD/- JUDGE SD/- JUDGE kvk