Sri P Ramaiah vs Muddappa Dead S/O.Nagappa on 2 July, 2013

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Karnataka High Court

Sri P Ramaiah vs Muddappa Dead S/O.Nagappa on 2 July, 2013

Bench: Ravi Malimath

                           1




   IN THE HIGH COURT OF KARNATAKA AT BANGALORE


             ON THE 2ND DAY OF JULY 2013


                        BEFORE


       THE HON'BLE MR.JUSTICE RAVI MALIMATH


       WRIT PETITION NO.23431 OF 2010(GM-CPC)


BETWEEN:

  1. Sri P.Ramaiah
     S/o Puletappa
     Aged about 70 years
     R/at Begur Village,
     Begur Hobli,
     Bangalore.

  2. Sri P.Siddappa
     S/o Puletappa
     Aged about 65 years
     Thavarekere Hobli,
     Magadi Taluk,
     Bangalore.                     ...PETITIONERS

(By Sri Vishnu Hegde, Advocate)

AND:

  1. Muddappa (Dead)
     S/o Nagappa
     Foster S/o Patel Siddappa
                              2




     Since deceased by his LRs

     1(a) Smt.Lakshmidevamma
           W/o Ramaiah
           Aged about 85 years

     1(b) B.M.Sreenivasa
          S/o late Muddappa
          Aged about 75 years

     1(c) Smt.Sarojamma
          W/o B.V.Chinnal,
          Aged about 80 years

     1(d) B.M.Nagaraj
          S/o late Muddappa
          Aged about 75 years

     1(e) B.M.Krishnappa
          S/o late Muddappa
          Aged about 72 years

     1(f)   B.M.Ramu
            S/o late Muddappa
            Aged about 67 years

1(a) to 1(f) are
Residing at Begur Village,
Begur Hobli, Bangalore South Taluk.

  2. P.Channappa
     S/o Puletappa
     Aged about 69 years
     No.25, K.H.Road, Shanthinagar
     Bangalore - 560 027.

     Since deceased by LRs
                               3




Amendment carried out as per order dated 11.3.2011
  a) Smt.Gowramma
     Aged about 60 years
     W/o late P.Channappa.

   b) Sri Rajeeva B.C.
      Aged about 40 years
      S/o late P.Chennappa.

   c) Sri Jayachandra B.C
      Aged about 35 years
      S/o late P.Channappa

      All are residing at
      Begur Village, Begur Hobli,
      Bangalore South Taluk,
      Bangalore.

   3. P.Ganesh @ Lakshman
      S/o Puletappa
      Aged about 55 years
      Begur Village, Begur Hobli,
      Bangalore South Taluk.            ...RESPONDENTS

(By M/s.A.Shivaram & Associates , Advocates
Sri A.Shivarama, Advocate for R1(b, d, e, f)
Sri A.G.Shivanna, Advocate for R2 (a-c)
Sri T.N.Vishwanath, Advocate for R3
R1(a&c)-Notice dispensed with vide court order dated
20.11.2012)
                         *****

       This Writ Petition filed under Articles 226 and 227 of
the Constitution of India praying to set aside the impugned
order dated 30.6.2010 in FDP.No.7/08, passed by the City
Civil Judge, at Bangalore (CCH-7) i.e., Annexure-A &
dismiss the FDP proceeding filed by the respondent 1(a) to
(f) & grant such other reliefs.
                                 4




       This Writ Petition coming on for preliminary hearing
in 'B' group this day, the Court made the following:-

                           ORDER

The suit in O.S.No.267/1950-51 for partition was instituted by the original petitioner Muddappa and others. The respondents in FDP were the minor plaintiffs represented by the father. It was decreed on 19-12-1960. An appeal was filed in R.A.No.242/1954, which was disposed off on 17-10-1955. Thereafter the second appeal before the High Court of Mysore in S.A.112/1956. There was a settlement in terms of the joint memo. It was held that the plaintiffs in the original suit had a vested right of 25% in Item No.1 etc. Except the suit item No.4 in the suit property the rest of the properties were allotted. The said decree is sought to be executed in the present FDP proceedings. In the interregnum the present plaintiffs- petitioners filed OS.No.155/1980 for partition. The suit was dismissed on the ground that there is a compromise effected in the earlier S.A.No.112/1956 and therefore the 5 suit was not maintainable. The first appeal was filed before the High Court to execute the decree wherein it was held that the suit filed in O.S.No.155/1980 was dismissed thereby confirming the Judgment of the High court in the earlier round of litigation. Thereafter the present FDP proceedings have been initiated. The respondents opposed the same on the ground of limitation. The lower Court held that in view of the Judgment in the case of BIKOBA DEORA GAIKWAD AND OTHERS vs. HIRABAI MARUTIRAO GHORGAGE AND OTHERS reported in (2008) 8 SCC 198 held that for considering the decree for partition, Articles 136 and 137 of limitation Act are not applicable to the application under Section 54 of CPC. Questioning the same the respondents have filed the present petition.

2. The learned counsel for the petitioners contends that the material would show that all the 6 properties have since been divided and that there is substantial delay in filing the FDP proceedings.

3. The learned counsel for the respondents defends the impugned order.

4. On hearing learned counsels I'am of the considered view that there is no merit in this Petition and the same requires to be dismissed. The trial court while rejecting the plea of the respondents therein held that the Petition is maintainable relying on the Judgment in the case of BIKOBA DEORA GAIKWAD AND OTHERS vs. HIRABAI MARUTIRAO GHORGAGE AND OTHERS reported in (2008) 8 SCC 198wherein the Hon'ble Supreme Court held that Articles 136 and 137 of Limitation Act cannot be made applicable to the application filed under Section 54 of CPC praying for partition of land by a Collector. Relying on the said Judgment the Petition was held to be maintainable. I'am of the considered view that the 7 reliance placed by the lower Court is just and proper. The Hon'ble Supreme Court in the aforesaid Judgment having taken the view necessarily would have to be made applicable to the facts of this case also. The order therefore is in accordance with law. I do not find any error committed by the trial court that calls for interference. Consequently, the Petition being devoid of merits, is dismissed.

Sd/-

JUDGE Rsk/-

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