IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.2568/2006 BETWEEN:
1.SMT.MUNIYAMMA SINCE DECEASED BY HER LR'S A) SMT.BYRAMMA W/O VENKATAPPA AGED ABOUT 58 YEARS RESIDING AT HASIGALA VILLAGE SULIBELE HOBLI HOSKOTTE TALUK.
SINCE DECEASED BH HER LRs 1A(a) VENKATESHAPPA S/O BYRAMMA AGED ABOUT 48 YEARS 1A(b) SMT.AKKAMMA W/O LATE MUNIVENKATAPPA D/O LATE BYRAMMA.
1A(c) H V RAJANNA S/O LATE BYRAMMA AGED ABOUT 44 YEARS.
(ALL ARE R/AT HOSIGALA VILLAGE SULIBELE HOBLI, HOSKOTE TALUK) B) SMT. THOTIYAMMA W/O SABAPPA AGED ABOUT 48 YEARS RESIDING AT HASIGALA VILLAGE SULIBELE HOBLI HOSKOTTE TALUK – 562 114.
SINCE DECEASED BY HER ONLY LR NAMELY SAROJAMMA S D/O LATE THOTIYAMMA W/O M CHIKKAMUNISWAMAPPA RESIDING AT SETTIHALLI DEVANAHALLI TALUK.
C) SMT. CHIKKATAYAMMA W/O MOTAPPA MAJOR 45 YEARS R/AT MITTANA HALLI VILLAGE JANGAMA KOTE HOBLI SIDDALGATTA TALUK CHICKBALLAPURA DISTRICT- SINCE DECEASED BY HER LRs 1C(a) ANJANAPPA S/O LATE DODDAPPANAIANNA AGED ABOUT 55 YEARS R/AT MITTANAHALLI VILLAGE JANGAMA KOTE HOBLI SIDDALGATTA TALUK CHICKBALLAPURA DISTRICT.
1C(b) THIPPAMMA W/O LATE MUNIYAPPA AGED ABOUT 53 YEARS R/AT ARUVANAHALLI VILLAGE KOHIRA POST, KUNDANNA HOBLI DEVANAHALLI TALUK BANGALORE RURAL DISTRICT.
1C(c) NARAYANAPPA S/O LATE DODDAAPPANAIANNA AGED ABOUT 51 YEARS R/AT MITTANAHALLI VILLAGE JANGAMA KOTE HOBLI SIDDALGATTA TALUK CHICKBALLAPURA DISTRICT.
1C(d) MOTAPPA S/O LATE DODDAAPPANAIANNA AGED ABOUT 49 YEARS R/AT MITTANAHALLI VILLAGE JANGAMA KOTE HOBLI SIDDALGATTA TALUK CHICKBALLAPURA DISTRICT.
1C(e) NAGAMMA W/O SEEGAALIAPPA AGED ABOUT 47 YEARS R/AT MAHADESWARA NAGAR DOOR No.15, 1ST CROSS MAHADEVAPURA POST BANGALORE – 560 048.
1C(f) SUBBAMMA W/O CHANDRAPPA AGED ABOUT 45 YEARS R/AT GANGAPURA VILLAGE TAVEREKER POST NANDAGUDI HOBLI HOSKOTTE TALUK BANGALORE RURAL DISTRICT.
1C(g) GIDDAPPA S/O LATE DODDAAPPANAIANNA AGED ABOUT 43 YEARS R/AT MITTANAHALLI VILLAGE JANGAMA KOTE HOBLI SIDDALGATTA TALUK CHICKBALLAPURA DISTRICT.
1C(h) MUNIRAJ S/O LATE DODDAAPPANAIANNA AGED ABOUT 41 YEARS R/AT MITTANAHALLI VILLAGE JANGAMA KOTE HOBLI SIDDALGATTA TALUK CHICKBALLAPURA DISTRICT.
D) SMT.CHICKKAMMA D/O LATE THOTI MUTTAPPA AGED ABOUT 48 YEARS SULIKUNTE VILLAGE VIRTUR HOBLI BANGALORE SOUTH TALUK BANGLAORE – 560 088.
…APPELLANTS (BY SRI PADMANABHA MAHALE SENIOR COUNSEL FOR SRI K VARA PRASAD, ADVOCATE) AND:
1. SRIRAMAIAH S/O NAGAPPA AGED ABOUT 65 YEARS JINNAGERE VILLAGE JADIGENHALLI HOBLI HOSKOTE TALUK -562 114.
2. J S RAVINDRANATH S/O SRI RAMAIAH AGED ABOUT 38 YEARS JINNAGERE VILLAGE JADIGENHALLI HOBLI HOSKOTE TALUK- 562 114.
...RESPONDENTS (BY SRI CHANDAN S RAO, FOR SRI K SURYANARAYANA RAO, ADVOCATE FOR R-1 & 2) THIS RSA IS FILED U/S 100 CPC AGAINST THE JUDGMENT AND DECREE DATED:3.6.2006 PASSED IN RA.No.115/2002 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:19.3.2002 PASSED IN OS.No.45/1993 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC, HOSKOTE.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment and decree dated 03.06.2006 passed in R.A.No.115/2002 delivered by the Presiding Officer, Fast Track Court-II, Bangalore Rural District, Bangalore, wherein, appeal came to be allowed and the judgment and decree dated 19.3.2002 passed in OS No.45/1993 by the Civil Judge (Jr.Dn.) & JMFC, Hoskote and set aside consequently, suit of the plaintiffs was decreed holding that plaintiffs are entitled to get the suit schedule property, allotted towards the share of G.M.Muniyappa, in any partition, that may be effected among the defendants, G.M.Muniyappa and others, pursuant to the judgment and decree dated 4.3.1986 passed by Additional II Munsiff, Bangalore and the defendants are permanently restrained from interfering in the possession and enjoyment of the property whichever they get in the partition on behalf of G.M.Muniyappa.
2. In order to avoid confusion and overlapping, the parties are also referred in accordance with their status and rankings as stood in the trial court.
3. Before dwelling on the merits of the case, it is necessary to state, the present appeal is a good example of a drastic effects when the interconnected suits are not clubbed for a common trial.
4. The brief facts involved in this case are that the present appellant No.1 is one of the defendants in a suit filed for partition in O.S.No.228/1983 on the file of Additional II Munsiff, Bangalore, wherein 1/5th share was ordered to be allotted to the parties therein. G.M.Muniyappa, 1st defendant in the said suit sold the suit schedule property connected to this appeal to one Sriramaiah son of Nagappa.
5. The final decree proceeding is yet to be concluded in regarding the partition. As the properties sold by defendant No.1 in the said case is the one that was purchased by the said Sriramaiah who is the 1st plaintiff in this case. Incidentally, said Sriramaiah who is 1st plaintiff herein is defendant No.19 in the said suit in OS No.228/1983. The present appeal thus has to be adjudicated keeping in mind about the present suit and the one interconnected as stated above.
6. The substance of the appeal presented precisely is that, plaintiffs filed suit for declaration of title and injunction against the defendants, viz.Muniyamma dead by LRs and Chikkamma in OS No.45/1993 on the file of Civil Judge (Jr.Dn) and JMFC at Hoskote. The said suit came to be dismissed and the plaintiffs preferred regular appeal before the learned Session Judge and Presiding Officer, Fast Track Court II, Bangalore Rural District, Bangalore in R.A.No.115/2002. The said appeal came to be allowed and the judgment and decree passed by the trial Court was set aside and consequently, suit of the plaintiffs was decreed.
7. For the sake of further convenience, it is necessary to extract the operative portion of the judgment in O.S.No.228/1983 as stood before the trial court and the operative portion of the judgment in Regular appeal No.115/2002. They are as under:
Operative portion of the judgment in O.S.NO.228/1983:
“The suit is decreed as prayed for”
Operative portion of the judgment in R.A.NO.115/2002:
“The appeal is allowed. The impugned judgment and decree are set aside. The suit of the plaintiffs is decreed. The plaintiffs are entitled to get the suit schedule property, if allotted towards the share of G.M.Muniyappa, in any partition, that may be effected between the defendants, G.M.Muniyappa and others, pursuant to the judgment and decree dated 4.3.1986 passed by Additional 2nd Munsiff, Bangalore. The defendants are permanently restrained from interfering in the possession and enjoyment of the property whichever they get in the partition on behalf of G.M.Muniyappa.”
8. Plaintiff No.1 is the father of the plaintiff No.2 in O.S.NO.45/1993. They filed the suit before the Civil Judge (Jr.Dn) and JMFC, Hoskote, seeking declaration of title and permanent injunction in respect of the land measuring 26 guntas in survey No.55/2 of Jinnagara Village, Hoskote Taluk. Their claim is that schedule property was purchased by 1st plaintiff-Sriramaiah from one G.M.Muniyappa under the registered Sale Deed dated 14.9.1968 for a valuable consideration and said G.M.Muniyappa put plaintiffs in possession of the said land and since then they are the absolute owner in exclusive possession of the schedule property.
9. It is also stated that their vendor G.M.Muniyappa filed Form No.7 before the Land Tribunal, Hosakote, seeking occupancy rights in respect of the said land. However, he conceded that the first plaintiff/respondent Sriramaiah is actually cultivating the schedule property. The Land Tribunal, Hoskote has rejected the said application.
10. It is also stated that total properties including the suit schedule property are bequeathed by the 1st plaintiff on 03.12.1987 in favour of his son, 2nd plaintiff and hence, he is made as 2nd plaintiff in the said suit.
11. O.S.No.228/1983 before the II Additional Munsiff, Bangalore, was filed seeking partition of the joint family properties by Chikkamma and Muniyamma claiming to be entitled for 1/5th share in all the suit schedule properties against G.M.Muniyappa and others. As stated above, the suit schedule property in the present case is also included as the schedule property in the said partition suit.
12. In this connection, it is necessary to state that, 1st plaintiff in this case is said to be defendant No.19 in the partition suit. The defendants remained exparte and matter was disposed of exparte, thereafter he filed Misc.Petition No.1988/1990 on the file of the II Additional Munsiff Bangalore, for setting aside the decree which also came to be rejected. Thereafter Misc.Appeal 88/1990 prefer for setting aside the judgment and decree also came to be dismissed. It is thereafter, the plaintiffs did not chose to prefer the appeal against the judgment and decree passed in OS 228/1983 which was confirmed in the Misc.Appeal No.88/1990. Consequential to the decreeing of the partition suit where-in 1/5th share was allotted, Final Decree Proceeding came to be instituted in FDP No. 1/1983(However learned counsel for plaintiff and defendant submit there is a typographical error in mentioning the number as 1/1983 and the FDP Proceeding is actually numbered as1/1993. The said submission is taken on record and error be rectified).
13. Meanwhile, plaintiffs Sriramaiah and his son filed OS No.45/1993 on the file of learned Civil Judge (Jr.Dn) Hoskote, which came to be dismissed on 19.3.2008. They filed Regular Appeal in RA No.115/2002 challenging the judgment and decree passed by the trial Judge which came to be allowed as per the judgment and decree passed by the first appellate Court and suit of the plaintiffs came to be decreed. However, the said decree is subject to the decree and entitlement of benefits, of the same what may be available to the vendor of the 1st plaintiff, i.e., G.M.Muniyappa/defendant No.1 in O.S.No.228/1983 ultimately gets allotted the schedule property to be made good.
14. The appeal is preferred by none other than the defendants in OS No.45/1993 and respondents/plaintiffs are none other than purchaser of the suit schedule property. The suit schedule property in the present case which incidentally is one of the property in OS No.226/1983 (Partition suit).
15. The defendants/appellants except stating, have not framed substantial question of law. However, this Court while admitting the appeal on 7.12.2007, framed the following substantial questions of law:
(i) Whether the first appellate Court was justified in reversing the judgment and decree passed by the trial court?
(ii) Whether the judgment and decree passed in OS..No.228/1983 operates as resjudicata in O.S.No.45/1993?
16. After hearing, I am of the considered view that substantial questions of law No.1 has to be retained and following additional questions of law need to be framed as under:
“(i) Whether the plaintiff in a suit for declaration when succeeds in the suit filed by him in respect of immovable property which is the subject matter of OS No.228/1993 and OS No.45/1993 which is filed, and was it right on the parts of the courts to adjudicate the matter without clubbing both the matters ?
(ii) Whether the decree passed in an individual suit filed by the plaintiffs, when decree in respect of title and injunction, was pending, was it right to decree the suit.”
13. Learned Senior counsel Sri.Padmanabha Mahale for Sri. K.Varaparasad, for appellants would submit that present suit is barred by resjudicata, thus there is threshold bar to the present one which should not have been entertained by the first appellate Court. He would further submit that the 1st plaintiff is not a bonafide purchaser of the property and not entitled for a decree. He would further submit that the suit in OS No.228/1983 is disposed of in advance to OS No.45/1993 which ought not to have been done. He would further submit that proceedings in OS 45/1993 does not bind the defendants. In the light of Section 47 of Code of Civil Procedure there was no occasion for the plaintiffs to file a fresh suit.
14. Learned counsel for respondent Shri.
Chandan Rao, would submit that suit in O.S.No.45/1993 at no stretch of imagination even be thought for a while to be a collusive suit which was filed before the competent court of jurisdiction in respect of the same subject matter.
15. There were full and fair disclosure of facts.
The defendants had umpteen opportunities to represent their grievance before the court in OS No.45/1993. That the plaintiffs are bound by the verdict passed in OS No.45/1993 that came to be decreed in favour of the plaintiffs by virtue of allowing of RA No.115/2002.
16. The admitted circumstances in the case are:
“(i) Property belonging to joint family according to the defendants and self acquired property of defendant No.1- G.M.Muniyappa, in OS No.228/1983 that came to be decreed on 4.3.1986 and insofar as the result of OS NO.228/1983 is 1/5th share was granted while adjudicating the matter at the stage of preliminary decree, which invariably suggests that vendor of the 1st plaintiff Sriramaiah was declared as owner of 1/5th share in the partition suit.
(ii) It is also seen that, after the original suit for partition and declaration on 4.3.1986, no further proceedings were initiated either by the seekers for partition or the other side and thus the proceedings reached the stage of final decree proceedings that was numbered as FDP 1/1993. It is the said FDP No.1/1993 that is stayed by this court on 7.12.2007 until further orders. Thus, though the matter reached final decree they are stalled by the stay granted by this Court.
(iii) 1st Plaintiff in this case is the defendant No.19 in OS No.228/1983. The legal position of his status would be that he purchased the schedule property from GM Muniyappa who is the defendant No.1 in the said suit. Further, equation of the suit is the entitled parties including defendant No.1 are declared in their favour for 1/5th share each. However, the same is subject to final decree proceedings.
(iv) The original suit in OS No.45/1993 came to be dismissed. Later an appeal is filed in RA No.115/2002 that came to be allowed on 3.6.2006 and it is against the said judgment, defendants are in appeal before this court in this Regular Second Appeal No.2568/2006.”
17. Thus materially the matter involved is bifurcation of rights and duties. The status present here is, one G.M.Muniyappa is a member of a joint family possessing several immovable properties, including the suit schedule property in this case.
18. The members of the joint family are G.M. Muniyappa, Muniyamma and Chikkamma. Sisters of G.M. Muniyappa filed partition suit seeking the share in the joint family properties in OS 228/1983 wherein G.M.Muniyappa is defendant No.1.
19. The suit was decreed and recognition of 1/5th share was granted to the entitled joint family members that invariably includes the defendant No.1-
G.M. Muniyappa and now the matter is slated in the Final decree in FDP No.1/1993.
20. The plaintiffs in the partition suit who sought the partition are the defendants in the present suit holding 1/5th share for each of them as per decree in the partition suit. Meanwhile, the said sisters/plaintiffs in OS No.228/1983 have resisted the claim of the plaintiffs and granting the decree to them of title and ownership. In the circumstances, it is to be seen that the calculation and allotment are all within the domain of the suit for partition. When the preliminary decree is over, it is up to the trial Court to adjudicate the matter with reference to the value of the share to allot the property, calculation of the share as contemplated under Order 26 Rule 13 CPC. Thereafter, in the circumstances the purchase of property by the plaintiffs from G.M. Muniyappa cannot be regarded as excess or exaggeration state and G.M. Muniyappa at no stage of proceedings has denied the entitlement of plaintiffs though execution of the sale deed in favour of 1st plaintiff Sriramaiah on 14.3.1968. G.M. Muniyappa when gets the title that may go to the purchaser Sriramaiah provided the matter is established before the final decree proceeding court. However, the matter cannot be adjudicated in advance nor the jurisdiction of the FDP Court he assumed by the trial court. The partition is subject to condition of Rules of Partition and Section 54 of CPC.
21. Further insofar as Section 47 of CPC is concerned, it is worth to mention the which is as under:
47. Questions to be determined by the Court executing decree-
(1) All questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(2) XXXX (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall for the purposes of this section, be determined by the Court.”
22. No doubt, whenever the matter is before the Executing Court, the dispute between the parties or the persons claiming under him has to be adjudicated under Section 47 CPC only and even by conducting enquiry if necessary and not by a separate suit. But the matter is, Executing Court cannot adjudicate or go back to FDP. Insofar as the plaintiffs are concerned, the suit was filed before the competent court and there is no establishment as could be seen from the record regarding rightlessness of G.M.Muniyappa. Only question is, one coparcener has sold the property and the same is invariably to be considered subject to the extent of his undivided share and it is to be seen whether the share allotted to the vendor of Sriramaiah is in equivalent to the property purchased by him and that is the matter that has to be adjudicated in the final decree proceedings.
23. In the further circumstances of the case, it is to be noted that when the proceedings go in two parallel ways in each suits this kind of conflicting situation come over. It is to be noted that the coparcener of a joint family are stated to be in joint possession and enjoyment of the joint family properties and it does not mean that coparceners are persons claiming under them if they are in actual possession to the exclusion of effects it does not give room for eviction.
24. Invariably, suit for partition is a comprehensive suit. Declaration of title and injunction. It is to be seen that the first defendant G.M. Muniyappa by this time, is stated to be entitled for 1/5th share which he has sold and schedule property to the 1st plaintiff-Sriramaiah and the said fact is established. To find out the value of the schedule property with reference to value of 1/5th share is not the job of this Court. However, the status of the properties are concerned, the plaintiffs are granted permanent injunction order and however title or possession is subject to the out come of the final decree proceedings in FDP 1/1993.
25. Under such circumstances, I am of the view that the first appellate Judge has assigned sound reasons for granting the relief of permanent injunction and insofar as the title is concerned, keeping it in abeyance till the final decree proceedings determined the share by metes and bounds.
26. Thus, I do not find any error, infirmity or illegality or perversity in the judgment and decree passed by the first Appellate Court in RA No.115/2002 on 03-06-2006 by setting aside the judgment and decree passed by the trial Judge in the suit. The substantial questions of law are answered accordingly.
24. For the foregoing reasons, appeal fails and it is liable to be rejected and accordingly, it is rejected.
Sd/- JUDGE tsn*