IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF NOVEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No. 1738 OF 2013 Between:
SRI VALLEPPA SON OF MUNIVENKATAPPA AGED ABOUT 72 YEARS R/AT KONGARAHALLI VILLAGE KAMASAMUDRAM HOBLI BANGARPET TALUK KOLAR DIST – 563 114 (BY SRI. M. B. CHANDRACHOODA., ADVOCATE ) And:
1. SMT. HATHIYA WIFE OF LATE AHMED JAN AGED ABOUT 54 YEARS.
2. SRI ASIFKHAN SON OF LATE AHMED JAN AGED ABOUT 31 YEARS BOTH ARE RESIDENTS OF DASTAGIR ROAD VIJINAPURA, DOORVANINAGAR POST BANGALORE – 560 016.
3. SRI ASLAMKHAN SON OF LATE PYARUKHAN AGED ABOUT 46 YEARS NO. 3344, KGF BUILDING ... APPELLANT SAIT COMPOUND BANGARPET KGF - 563 114 KOLAR DIST.
4. SRI AKRAMKHAN SON OF LATE PYARUKHAN AGED ABOUT 44 YEARS NO. 3344, KGF BUILDING SAIT COMPOUND BANGARPET TOWN KOLAR DIST – 563 114.
5. SMT. KHAMROON DAUGHTER OF LATE PYARUKHAN DEAD BY LRS.
5(a) SRI NISSAR AHMED SON OF LATE KHAMROON AGED ABOUT 48YEARS MURUGAL VILLAGE BANGARPET TALUK KOLAR DIST – 563 114.
5(b). SRI MUKTHIYA AHMED SON OF LATE KHAMROON AGED ABOUT 43 YEARS R/AT NO. 12/2, MUNIYAPPA REDDY ESTATE, ANJENEYAREDDY TEMPLE, VIJINAPURA WARD NO.29L DOORVANINAGAR POST K. R. PURAM BANGALORE – 560 016.
6. SRI SHHAZAD WIFE OF USMANSHARIFF, DAUGHTER OF LATE PYARUKHAN, AGED ABOUT 59 YEARS, R/AT OLD TAJ HOLTE BLDG., OPP M. G. MARKET, PEDDAPALLI ROAD, KGF-563 114, KOLAR DISTRICT.
7. SMT ZAHRUNNISA WIFE OF SATTARASAB, DAUGHTER OF LATE PYARUKHAN, AGED ABOUT 60 YEARS, R/AT DASTAGIR ROAD, VIJINAPURA, DOORAVANINAGAR POST, BANGALORE - 560 016.
8. SMT MAMTAZ WIFE OF LATE ANWARKHAN, AGED ABOUT 51 YEARS, R/AT NO.116, DASTAGIR ROAD, VIJINAPURA, DOORAVANINAGAR POST, BANGALORE - 560 016.
9. SRI MYBARAKHAN SON OF LATE ANWARKHAN, AGED ABOUT 54 YEARS. BOTH R/AT NO.116, DASTAGIR ROAD, VIJINAPURA, DOORAVANINAGAR POST, BANGALORE - 560 016.
10. SRI IBRAHIM KHAN @ SHAHAZAN SON OF LATE PYARUKHAN, AGED ABOUT 54 YEARS.
11. SRI ISMAIL KHAN SON OF LATE PYARUKHAN, AGED ABOUT 51 YEARS.
BOTH R/AT DASTAGIR ROAD, VIJINAPURA, DOORAVANINAGAR POST, BANGALORE - 560 016.
12. SRI V. SRINIVAS SON OF VENKATAPPA, AGED ABOUT 58 YEARS, HOUSE NO.1,CAUVERY EXTENSION,VARTHUR VILLAGE, BANGALORE EAST TQ., BANGALORE - 560 087.
... RESPONDENTS (BY SRI. V. JANARDHAN., ADVOCATE FOR R8 TO R11; SRI. G. NARAYANA RAO., ADVOCATE FOR R12; NOTICE SERVED ON R1 TO R7) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC. 100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 24.08.2013 PASSED IN R.A. NO. 55/2010 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, K.G.F., DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 30.06.2010 PASSED IN OS.NO. 230/2007 ON THE FILE OF CIVIL JUDGE (JR.DN) AND JMFC, BANGARPET.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment Heard the learned counsel for the appellant. The respondent Nos.1 to R.11 though served have remained absent. There is no representation on behalf of the respondent No.12 though served and represented by his counsel.
2. This appeal is by the defendant No.5 in OS No.230/2007 on the file of the Civil Judge (Jr.Dn.) and JMFC, Bangarpet (for short, ‘trial Court’). This suit in O.S.No.230/2007 is filed by the respondent Nos.1, 2, 3, 4 and Smt. Khamroon along with their mother Smt.Alimaabee for partition of agricultural land in Sy.No.11/2 measuring 1.29 acres of Kongarhari, Kamasamudram Hobli, Bangarpet Taluk. The trial Court has decreed the suit holding that the Sale Deed dated 5.9.1984 executed in favour of the appellant, and the subsequent Sale Deed executed by the appellant in favour of the respondent No.12 would not bind the share of the respondents-plaintiffs. Further, the trial Court has declared that each of the respondents - plaintiffs would be entitled for different shares as per the applicable personal law. The appellant contested the suit, but the respondent No.12, who had the benefit of the Sale Deed dated 8.6.2007 executed in his favour by the appellant, did not contest the suit. The appellant, being aggrieved by the trial Court’s judgment, called in question the same in the first appeal in RA No.55/2010 on the file of the Presiding Officer, Fast Track Judge, KGF, and the respondent No.12 initiated proceedings under Order IX Rule 13 of the Code of Civil Procedure in Misc.P.No.1/2011 on the file of the trial Court for setting aside its judgment dated 30.6.2010.
3. In the petition in Misc.No.1/2011 , the learned counsel for the parties agreed for restoration of the suit and re-adjudication of the suit. Accordingly, the trial Court on 27.4.2013 restored the suit in OS No.230/2007 for re- adjudication imposing a cost of Rs.3,000/-. The appellant, who was prosecuting the first appeal in RA No.55/2010, filed a copy of the order in the aforesaid miscellaneous case along with a memo on 26.7.2013. Despite this memo, and the order sheet in the miscellaneous proceedings being placed on record, the appellate Court has proceeded to decide the appeal on merits confirming the trial Court’s judgment. As such, the appellant is in this second appeal.
4. The substantial question of law arises for consideration in this appeal is:
“Whether the appellate Court could have proceeded to decide the first appeal in RA No.55/2010 on merits, despite being informed that by consent of the parties in a proceeding under order XI Rule 13 of CPC, the suit was restored for re-adjudication”.
5. The learned counsel for the appellant is heard on this question and as aforesaid, there is no representation on behalf of the respondents. This Court, in the facts and circumstances of the case, is of the considered opinion that it would be appropriate to take up the appeal for final disposal and the learned counsel for the appellant is accordingly heard.
6. The irrefutable facts as emerge from the records are that the suit for declaration that the conveyances, firstly in favour of the appellant, and secondly in favour of the respondent No.12 is filed by the respondent Nos.1 to 4 and two others viz., Smt. Alimabee and Smt. Khamroon. The respondent No.12 did not contest the suit and he was placed ex parte. He filed a petition under Order IX Rule 13 of the CPC, which is allowed because the learned counsel for the parties submitted in unison that the suit could be restored for re-adjudication. With the suit being restored for re-adjudication, the question of granting declaration that the Sale Deed executed in favour of the appellant and the later Sale Deed in favour of the respondent No.12 would not bind on the respondents and the respondents-plaintiffs’ rights to different shares, will have to be re-adjudicated. The records also show that the fact that the suit was restored for re -
adjudication was also brought to the notice of the Appellate Court. But, it is not obvious from the judgment of the appellate Court that it was cognizant that the suit was restored for re-adjudication. Be that as it may, the decision by the appellate Court on merits when the suit is restored for re-adjudication would lead to a very incongruous situation. The re-adjudication, in the light of the decision of the appellate Court on merits, even at the instance of the respondent No.12, would be an hindrance. Therefore, this Court is of the considered view that the appellate Court could not have decided the appeal on merits once it was brought to its notice that the suit was restored for re- adjudication. The substantial question of law is answered accordingly, and the appeal is disposed of setting aside the impugned judgment and calling upon the trial Court to re- adjudicate the questions involved in the suit without being whatsoever influenced by the decision of the appellate Court. The trial Court shall decide the suit as expeditiously as possible, but within an outer limit of six months from the date of receipt of certified copy of this order.
The appeal stands disposed of accordingly.
In view of disposal of the appeal, IA No.1/2013 does not survive for consideration and the same is dismissed.
Sd/- Judge SA Ct:sr