IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2019 Before The Hon’ble Mr.Justice B.M.Shyam Prasad Miscellaneous Second Appeal No. 27 of 2019 Between:
SRI. PUTTASWAMY S/O LATE BORAIAH AGED ABOUT 65 YEARS RESIDING AT NO.2763 3RD CROSS, GANDHINAGARA, MANDYA CITY – 571 401.
... APPELLANT (BY SRI. HEGDE V. S, ADVOCATE) And:
ERAIAH, S/O SIDDEGOWDA DEAD BY LEGAL REPRESENTATIVES 1. SMT. CHIKKAMMANNI W/O LATE EARAIAH AGED ABOUT 74 YEARS.
2. SRI. SURESH S/O LATE ERAIAH AGED ABOUT 52 YEARS.
3. SMT. KALA D/O LATE ERAIAH AGED ABOUT 56 YEARS ALL ARE RESIDING AT 3RD CROSS GANDHINAGARA, MANDYA CITY – 571 401.
4. SMT. YASHODA W/O SHIVARAMU, D/O LATE ERAIAH AGED ABOUT 60 YEARS RESIDING AT GANTAGOWDANA-HALLI VILLAGE KERAGODU HOBLI MANDYA TALUK AND DIST – 571 446.
... RESPONDENTS (BY SRI. K.M. SANATH KUMARA, ADVOCATE FOR R-2) THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC 1908, AGAINST THE JUDGMENT AND DECREE DATED 24.09.2018 PASSED IN RA.NO.47/2017 ON THE FILE OF THE V ADDITIONAL DISTRICT JUDGE, MANDYA, ALLOWING THE APPEAL AND SETTING ASIDE THE ORDER DATED 14.08.2017 PASSED IN FDP NO.2/2001 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANDYA AND REMANDING BACK THE MATTER TO THE TRIAL COURT FOR FRESH CONSIDERATION.
THIS MISCELLANEOUS SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment Though this appeal is listed for admission, with consent of the learned counsel for both the parties, and given the nature of the submission made, the appeal is taken up for final disposal.
2. This appeal is filed by the plaintiff calling in question the impugned judgment and decree dated 24.09.2018 in R.A.No.47/2017 on the file of V Additional District and Sessions Judge, Mandya (for short, ‘the appellate Court’). The appellant’s grievance is that the appellate Court has set aside the order dated 14.08.2017 in FDP NO.2/2001 on the file of the I Additional Senior Civil Judge and CJM, Mandya (for short, ‘the final decree Court’) and remanded the matter for fresh consideration in the light of the observation made by this Court in Writ Petition No.26729/2009.
3. The learned counsel for the appellant submits that the dispute pertains to adjudication of IA No.15 filed by the deceased Sri Eraiah, son of Siddegowda under Section 4 of the Partition Act, 1893 read with Section 151 of CPC seeking for allotment of a particular portion in one of the suit schedule property as a matter for working out equities. On 15.07.2009, the final decree Court rejected this application. This order dated 15.7.2009 is called in question in a Writ Petition in Writ Petition No.26729/2009. This Court has set aside the order dated 15.07.2009 directing the final decree Court to reconsider the issue of making equitable partition as claimed by the deceased Sri.Eraiah leaving open all legal contentions open. The final decree Court, in the light of this order dated 15.07.2009 and the subsequent order of this Court in Writ Petition No.26729/2009, by the impugned order has passed final decree properties without any equities as claimed by the deceased Sri. Eraiah.
4. The learned counsel for the appellant submits that, after the impugned final decree, the suit schedule properties, including the subject properties, have been partitioned by metes and bounds, and the appellant – plaintiff put in possession. As such, the Appellate Court could not have set aside the final decree and remanded the matter back to the final decree Court for reconsideration.
5. On the other hand, the learned counsel for respondent No.2, who is the legal representative of the deceased Sri. Eraiah, submits that this Court in W.P.No.26729/2009 set aside the order dated 15.07.2009 with a direction to the final decree Court to reconsider the issue raised leaving open the legal contentions. As such, the final decree Court ought to have examined the permissibility of equitable partition as asserted by Eraiah in IA.15. However, the final decree Court has proceeded to pass the order dated 14.08.2019 on the premise that because IA.15 is dismissed vide the order dated 15.7.2009 and therefore, question of equitable portion as asserted by Eraiah could not be re-visited. As such, the final decree Court has ignored the orders in W.P.No.26729/2009.
6. Insofar as certain subsequent events viz., delivery of possession by metes and bounds, the learned counsel submits that the respondent has filed an application under Section 144 of CPC seeking restitution of multiple grounds, including the ground that the delivery of possession in favour of the appellant was despite an interim order granted by the appellate Court. Therefore, the appellant cannot contend that the impugned order must be set aside because possession has been delivered.
7. In the light of the rival submissions, the question that arises for consideration is: ‘Whether the appellate Court is justified in allowing the appeal in R.A.No.47/2017, setting aside the order dated 24.09.2018 and restoring the final decree proceedings in FDP No.2/2001 for fresh consideration.’ 8. The learned counsel for the appellant and the learned counsel for the respondents are in unison in submitting that the different immovable properties are subject matter of the partition suit, and the present controversy is confined to item No.1 viz., property bearing No.2726, 3rd Cross, Gandhinagar, Mandya. It therefore follows from this submission that the parties were not disputing the order dated 14.08.2017 in FDP No.2/2001 as regards other properties, and their dispute was confined to the question the deceased Sri. Erraiah was entitled for working out equities as prayed for in IA No. 15.
9. In W.P.No.26729/2009, this Court set aside the order dated 15.07.2009 by which the application in IA.15 filed by the deceased Sri. Eraiah for working out equities was rejected, and this Court directed the final decree Court to reconsider the issue. The relevant part of this order reads as under:
“Taking into consideration the submissions made at the bar, the petition is allowed. The order of the Trial Court is set aside. The Trial Court shall re-consider the issue with regard to the equitable partition. All the legal contentions are kept open for consideration before the Trial Court while effecting the equitable partition”.
However, the final decree Court has rejected the request for working out equities as sought for in IA.15 filed under Section 4 of the Partition Act, 1893, and the relevant part reads as under:
“It is also an admitted fact that the respondent No.4 has filed IA No.15 under Section 4 of the Partition Act r/w. Section 151 of CPC seeking allotment of eastern side of share in the item No.1 of the suit schedule property. Admittedly, the said application was also dismissed on 15/7/2009 by this Court with an observation that the fourth respondent has no right to seek particular portion of property for allotment of his share as he is not a bonafide purchaser as he has purchased the portion of suit schedule properties with the knowledge of the litigation his vendor 1st respondent sold the property even though having the knowledge the present litigation from the year 1999. So in view of the order passed on IA no.15 as on today, the respondent no.4 also cannot seek the relief of equity in allotting share towards the eastern side portion in favour of 1st respondent”.
10. It is obvious from a conjoint reading of these two orders that, the final decree Court, which was required to consider the request for working out equities afresh without being influenced by the order dated 15.07.2009, has contrarily proceeded to reject such request only because the application in IA No. 15 was rejected by the order dated 15.07.2009. This was impermissible. Therefore, the appellate Court is justified in remanding the matter for fresh consideration in the light of the decision in W.P.No.26729/2009. Therefore, no interference is called for. The writ petition is dismissed.
11. In view of the dismissal of the petition, IA No.1/2019 does not survive for consideration and the same is dismissed.
Sd/- Judge SA Ct:sr