Karnataka High Court
Mr Chandrashekar Shetty vs H Shyama Shetty on 31 August, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:35238
RFA No. 1836 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO.1836 OF 2023 (PAR)
BETWEEN:
MR. CHANDRASHEKAR SHETTY
AGED ABOUT 73 YEARS
S/O LATE A N SHETTY
RETIRED TEACHER
'NANDINI', GUNDMI VILLAGE
SASTHANA POST - 576 226
BRAHMAVARA TALUK
UDUPI DISTRICT.
...APPELLANT
(BY SRI. CHANDRANATH ARIGA K, ADVOCATE)
AND:
1. H SHYAMA SHETTY
AGED ABOUT 70 YEARS
S/O LATE A N SHETTY
R/O PADMALEKHA
Digitally KODI - SASTHANA ROAD
signed by SASTHANA POST - 576 226.
MADHURI S BRAHMAVARA TALUK
Location: UDUPI DISTRICT.
High Court
of 2. KAMALA SHETTY
Karnataka AGED ABOUT 78 YEARS
W/O LATE MONAPPA SHETTY
3. SMT. PUSHPA B SHETTY
AGED ABOUT 58 YEARS
4. AJITH M SHETTY
AGED ABOUT 52 YEARS.
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NC: 2024:KHC:35238
RFA No. 1836 of 2023
5. SMT. AMRITHA SHETTY
AGED 49 YEARS
No..3 TO 5 ARE
CHILDREN OF LATE MONAPPA SHETTY.
No.2 TO 5 ARE
R/AT THOTADAMANE
AVARSE VILLAGE AND POST - 576 223
BRAHAMAVARA TALUK.
6. SMT. GULABI SHEDTHI
AGED ABOUT 83 YEARS
W/O LATE G SHIVARAM SHETTY
D/O LATE A N SHETTY
HEGGUNJE KAMBALAGADDEMANE
HEGGUNJE VILLAGE
MANDARTHI POST - 576 233
BRAHMAVARA TALUK
UDUPI DISTRICT.
7. SMT. BABY SHEDTHI
AGED ABOUT 82 YEARS
D/O LATE A N SHETTY
W/O MAHALINGA SHETTY
BAGWADI HOSAMANE
BAGWADI
NOOJADI VILLAGE AND POST - 576 233
KUNDAPURA TALUK
UDUPI DISTRICT.
8. SMT. SHANTHA SHETTY
AGED ABOUT 80 YEARS
D/O LATE A N SHETTY
W/O H KRISHNA SHETTY
HEGGUNJE KAMBALAGADDEMANE
HAGGUJNE VILLAGE
MANDARTHI POST - 576 223
BRAHMAVARA TALUK
UDUPI DISTRICT.
9. SMT. SANJEEVI SHETTY
AGED ABOUT 78 YEARS
D/O LATE A N SHETTY
W/O LATE BALAKRISHNA SHETTY
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NC: 2024:KHC:35238
RFA No. 1836 of 2023
BALA SANJEEVA, THOMBATTU
HENGAVALLI VILLAGE AND POST - 576 212.
KUNDAPURA TALUK.
UDUPI DISTRICT.
10. SMT. NAGARATHNA S SHETTY
AGED ABOUT 64 YEARS
W/O LATE SUBBANNA SHETTY
11. SMT. VEENA A SHETTY
AGED ABOUT 45 YEARS
12. PRAVEEN SHETTY
AGED ABOUT 40 YEARS
No.11 AND 12 ARE CHILDREN OF
LATE SUBBANNA SHETTY
No.10 TO 12 ARE
R/O MANJUNATHA NILAYA
HEMMANJE KALGUDDIMANE
NADA VILLAGE
NADA GUDDEANGADI POST - 576 230.
KUNDAPURA TALUK
UDUPI DISTRICT.
13. SMT. RAMANI SHEDTHI
AGED ABOUT 75 YEARS
D/O LATE A N SHETTY
W/O B BHASKAR HEGDE
R/O HEGGUNJE KAMBALAGADDEMANE
HEGGUNJE VILLAGE
MANDARTHI POST - 576 223
BRAHMAVARA TALUK
UDUPI DISTRICT.
...RESPONDENTS
(BY SRI. SANATHKUMAR SHETTY K, ADVOCATE
FOR R1 AND R5;
R2, R3, R4, R6 TO R12 ARE SERVED BUT UNREPRESENTED;
NOTICE TO R13 IS HELD SUFFICIENT V/O DATED 31.08.2024)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF CPC, AGAINST THE ORDER DATED 22.06.2023 PASSED IN FDP
No.6/2016 IN OS.No.36/2015 ON THE FILE OF THE SENIOR CIVIL
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NC: 2024:KHC:35238
RFA No. 1836 of 2023
JUDGE, KUNDAPURA, ALLOWING THE PETITION FILED UNDER
SECTION 54 OF CPC.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
ORAL JUDGMENT
This appeal is directed against the impugned order dated 22.06.2023 passed in FDP No.6/2016 by the Senior Civil Judge, Kundapura, whereby the said final decree petition filed by respondent No.1 was allowed by the trial Court.
2. Heard learned counsel for the appellant and learned counsel for the respondents and perused the material on record.
3. A perusal of the material on record would indicate that respondent No.1 instituted a suit in O.S.No.36/2015 against the appellant/defendant No.10 and other defendants for partition and separate possession of their alleged share in the suit schedule immovable properties comprising of four items of the properties.
The said suit having been contested, the trial Court proceeded to pass the preliminary decree vide judgment and decree dated 04.10.2016 declaring that plaintiff No.1 was entitled to 1/9th share in -5- NC: 2024:KHC:35238 RFA No. 1836 of 2023 items Nos.1, 3 and 4 and 2/9th share in item No.2 of the suit schedule properties. Pursuant to the aforesaid preliminary decree, respondent No.1 instituted Final Decree Proceedings, which were also contested by the petitioner.
4. By the impugned order, the Final Decree Court allowed the petition and directed effecting division/partition of the suit schedule properties by issuing following directions:
"The petition filed by the petitioner under Section 54 C.P.C, is allowed.
1. The petitioner is entitled for 3 shares in item No.1 of the suit 'A' schedule property (including Share of respondent Nos.2 and 6),
2. 3 shares in item No.2 (including the Shares of respondent No.2 and 6), 3.4 shares in item No.3 (including share of respondent Nos. 1, 2 and 6).
4. The legal heirs of respondent No.1 i.e., 1(a) to 1(d) are together entitled one share in item No.2.
5. The respondent Nos.3 and 4 are entitled for 1/9th share each in item Nos. 1 to 4.
6. The respondent No.5 is entitled for 1/9th share in item Nos.3 and 4.
7. The respondent No.5 is entitled for 1/9th share in item Nos.3 and 4.
8. The respondent No.10 is entitled for four shares in the item No.1 (including the shares of respondent Nos. 1, 5, and 9). Two shares in the item No.2 (including the -6- NC: 2024:KHC:35238 RFA No. 1836 of 2023 share of Respondent No.9). Two shares in the item No.3 (including the share of the Respondent No.9). Two shares in the item No.4 (including the share of the Respondent No.9). Accordingly they shall put in to possession.
The petitioner, the respondents No.1 to 5 and 6 to 9 are entitled mesne profits at the rate of `2000/- per year since from date of institution of suit from Respondent No.10. The Commissioner report and sketch shall form part of the final decree. Draw final decree accordingly.
No costs as to order."
5. Aggrieved by the final decree, only insofar as it relates to item No.1 of the suit schedule properties and grant of mesne profits in favour of the respondent No.1/plaintiff, petitioner/defendant No.10 is before this Court by way of the present appeal.
6. Heard learned counsel for the petitioner and learned counsel for respondent No.1 and perused the material on record.
7. In addition to reiterating the various contentions urged in the memorandum of appeal and referring to the material on record, learned counsel for the appellant submits that the trial Court has committed an error in directing division of item No.1 of the suit schedule properties without appreciating that the petitioner was in -7- NC: 2024:KHC:35238 RFA No. 1836 of 2023 actual and physical possession of the property and developed the same and the interest of respondent No.1/plaintiff and other parties can be adequately safe guarded by allotting properties other than item No.1 by adjusting equities in this regard. It is also submitted that the impugned Final Decree insofar as it relates to grant of mesne profits, is contrary to the material on record and the same deserves to be set aside.
8. Per contra, learned counsel for respondent No.1/plaintiff would submit that issue regarding the right of the petitioner/defendant No.10 to claim equities in relation to item No.1 of the suit schedule properties, had already been considered and rejected against the petitioner and in favour of the respondents while answering Issue No.2 in O.S.No.36/2015 at the time of passing preliminary decree. It is submitted that the said preliminary decree rejecting the claim of defendant No.10/petitioner for adjustment of equities has become final, conclusive and binding upon the petitioner and provision of Section 97 of CPC estopped/precluded from challenging the same in the present appeal. It is also submitted that by virtue of Section 11 of CPC in particular, explanation VII, which makes the principles of -8- NC: 2024:KHC:35238 RFA No. 1836 of 2023 Res-judicata applicable even to execution proceedings, the claim of the appellant was hit by Res-judicata and the same deserves to be rejected.
9. I have given my anxious consideration to the rival submissions and perused the material on record.
10. The points that arise for consideration in the present appeal are as under:
i) Whether the trial Court was justified in rejecting the contention/plea of the appellant with regard to adjustment of equities/equitable partition/allotment by allotting item No.1 in favour of the appellant?
ii) Whether the trial Court was justified in granting the mesne profits of Rs.2,000/- per annum?
Re-Point No.1:
11. A perusal of the material on record including the impugned order will indicate that the very same issue regarding adjustment of equity by allotting item No.1 completely in favour of the appellant was taken up for consideration by the trial Court in O.S.No.36/2015, whereby issue No.2 was specifically dealt with the -9- NC: 2024:KHC:35238 RFA No. 1836 of 2023 question as regards to whether the appellant was entitled for equity in respect of item No.1 of the suit schedule properties. The said issue was taken up for consideration after evidence by the trial Court and rejected against the appellant and passed in favour of respondent No.1 by holding as under:
"
8. Based on the above pleading the Court has framed the following Issues:-
Recasted issue No.1:
Whether the plaintiff proves that the he is entitled for ½ share in the Sl.No.1, 3 and 4 properties and 2/9 share in Sl.No.2 of the suit properties as prayed?
2. Whether the defendant No.10 is entitled for equity in respect of item No.1 of the suit schedule properties?
3. What order or decree?
9. The Plaintiff has been examined Pw1 and got marked Ex. P1 to 21. The Defendants have been examined D.W.1 and besides examining D.W.-2.
10. Heard the arguments of both the sides.
11. My answer to the above issues are as follows:-
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NC: 2024:KHC:35238 RFA No. 1836 of 2023 Recasted Issue No.1:- In the Affirmative Issue No.2:- In the Negative Issue No.3:- As per final order, for the following:-
R EA SO N S
12. Issue No.2: It is the case of the plaintiff that the Smt. Padmavathi Shetty was holding suit item No.1 & 2 on absolute mooli right. After death her children have inherited the properties as personal heirs. Items No.3 & 4 of the properties are purchased by Sri Nandyappa Shetty and Padmavathi Shetty as per the sale deed dated 12-07-1979. It is further stated that 1st defendant Monappa Shetty has released his 1/9th share in respect of item No.2 of the suit properties in favour of the plaintiff as per release deed dated 9-12-2013. The 1st defendant has released 1/9th share in the item No.1 of the property in favour of the 10th defendant. 5th defendant has released her 1/9th share in th favour of 10 defendant. The plaintiff is holding 1/9th right in schedule 1, schedule 3 and schedule 4 properties, and 2/9th right in schedule 2 property and the is entitled to 1/9th share in schedule 1, schedule 3 and schedule 4 properties, and 2/9th share in
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NC: 2024:KHC:35238 RFA No. 1836 of 2023 schedule 2 property, and is entitled to proportionate share of income in the schedule properties. In order to substantiate the case the plaintiff relied on the oral evidence of P.W.-1 and Ex.P.1 to P.21. P.W.-1 is none other than the plaintiff in this case has reiterated the plaint averments and relied on Ex.P.1 to P.21 in support of the oral evidence.
13. While disputing the claim of the plaintiff, the defendant No.10 has contended that he being the only son residing at Gundmi Village has taken care of his parents till their death and also managed the properties in question. He being death and also managed the properties in question. He being the teacher by profession invested huge amount for the development of item No.1 of the suit schedule properties without the assistance of the plaintiff or any other defendants. Hence, the defendant No.10 is entitled equity in respect of the item No.1 of the suit schedule property. In order to substantiate the same, the defendant No.10 has relied on the oral evidence of D.W.-1 & 2.
14. The learned counsel for the plaintiff Sri G.S.K.S. Advocate has seriously contended that the defendant No.10 is not entitled for any equity. According to the counsel for the plaintiff, the defendant No.10 was not managing the suit property and he has not made improvements in the suit properties. The counsel would contend that the
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NC: 2024:KHC:35238 RFA No. 1836 of 2023 equity cannot be decided at this stage since there is no evidence to prove the improvement made by the defendant No.10 over the suit properties. On the other has Sri K.C.S., Advocate has invited the attention of the Court with regard to the cross- examination of P.W.-1.
15. On perusal of the contentions taken by the both the sides it is clear that there is no dispute with regard to the relationship between parties. There is no dispute between the parties with regard to the status of the properties as family properties. There is no dispute with regard to the entitlement of the share by the plaintiff in respect of property items No.2 to 4. The defendant No.10 has only prayed equity in respect of item No.1 of suit properties. Hence, this issue is taken up for discussion first. Now let us go through evidence of D.W.-1 & 2 has to whether the defendant No.10 has able to prove the claim. The learned counsel for the defendant No.10 subjected P.W.-1 for cross-examination. Admittedly, the item No.10 was measuring 42 cents. The plaintiff has filed the suit for partition claiming partition in respect of the 4 items of the suit properties. The total extent of four items is 1 acre 10 cents. The defendant No.10 has claiming item No.1 measuring 42 cents out of 1 acre 10 cents on the ground that he has made improvements in the suit properties. P.W.-1 has clearly stated that the father has taken loan from Syndicate Bank in the year 1979 and made
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NC: 2024:KHC:35238 RFA No. 1836 of 2023 improvements in the suit properties. Ex.P.16 is the letter issued by the Syndicate Bank which shows that loan amount was Rs.3,000/- was borrowed in the name of the Padmavathi Shetty. Ex.P.17 corroborates the evidence of P.W.-1 so far as the loan obtained by the father of the plaintiff is concerned. The defendant No.10 in order to show that he has made improvements in the suit properties has not produced any materials in this regard. On the other hand, the cross-examination of the D.W.-1 clearly goes to show that defendant No.10 has not made any improvements in the suit properties. Because D.W.-1 in the cross- examination has stated like this, "£À£Àß vÁ¬ÄAiÀÄ£ÀÄß 2£Éà ¥ÀæwªÁ¢ UÀįÁ© £ÉÆÃrPÉÆArzÀÝgÀÄ J£ÀÄߪÀÅzÀÄ ¸Àj.". If this deposition is taken into consideration, the contentions urged by the defendant No.10 cannot be considered. D.W.-1 in the cross-examination has further stated that he has constructed his house in the year 1983 and also performed house warming ceremony and defendant No.10 and his family were residing in the said house. He has further stated that there is no document to show that he has made improvements in the item No.1 and he cannot say amount spent for improvement of item No.1. No doubt, he was managing the suit properties after death of his mother. It does not mean that he has made improvements in the suit properties. The defendant No.10 has examined D.W.-2 to prove that he has made improvements in the suit properties. But, D.W.-
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NC: 2024:KHC:35238 RFA No. 1836 of 2023 2 is none other than the defendant No.5 in this case has clearly stated like this, "¸À¢æ C©üªÀÈ¢ÞAiÀÄ£ÀÄß £À£Àß vÀAzÉ ªÀiÁrgÀÄvÁÛgÉ". On perusal of the cross-examination D.W.-2 it is clear that he has deposed on behalf of the defendant No.10 he is owing some obligation to defendant No.10. No where in the evidence, it has come that defendant No.10 made improvements in the item No.1 of the suit properties. Merely because, defendant No.10 was managing suit properties after death of his mother. No inference can be drawn and he is entitled for the item No.10 on the basis of the equity. Further more, question of considering the prayer of the defendant No.10 does not arise for the simple reason that if the item No.1 is given to the share of the defendant No.10, it will definitely amount unequal distribution of the shares and defendant No.10 while get more share than other defendants. Looking into any angle, the defendant No.10 was not made any grounds to claim equity as contended in the written statement. Hence, I answer issue No.2 in the negative."
12. As can be seen from the aforesaid preliminary decree passed by the trial Court and findings recorded therein, the trial Court has come to the categorical conclusion after considering the evidence on record that the appellant was not entitled to claim equities in respect of item No.1 of the suit schedule properties.
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NC: 2024:KHC:35238 RFA No. 1836 of 2023
13. In this context, it would be relevant to refer to Section 97 of CPC, which reads as under:
"97. Appeal from final decree where no appeal from preliminary, decree .-
Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree."
14. So also Section 11 of CPC explanation VII reads as under:
"11. Res judicata-
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation VII -The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree."
15. In view of the undisputed fact that the claim of the appellant for adjustment of equity and allotment of item No.1 of the
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NC: 2024:KHC:35238 RFA No. 1836 of 2023 properties had been rejected by the trial Court while passing the preliminary decree and the same have attained finality and become conclusive and binding upon the parties and the fact that respondent No.1 has not challenged the preliminary decree, I am of the view that in the light of the provisions contained under Section 97 of CPC and Section 11 of CPC Explanation VII as well as principles of Res judicata, the question of appellant being permitted to readjudicate the issues again is opposed to public policy also and the question of entertaining the same in the present appeal does not arise.
16. Under the aforesaid facts and circumstances, I am of the view that the trial Court was justified in rejecting the claim of the appellant and passing the impugned order in relation to item No.1 of the suit schedule properties, which does not warrant interference of this Court in the present appeal. Accordingly, point No.1 is answered in the affirmative by confirming the finding recorded by the trial Court in respect of item No.1 of the suit schedule properties.
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NC: 2024:KHC:35238 RFA No. 1836 of 2023 Re-Point No.2:
17. Insofar as point No.2 relating to awarding Rs.2,000/-
per annum by way of mesne profits in favour of the respondents is concerned, it is significant to note that the trial Court has recorded a finding in this regard without assigning sufficient or proper reasons as can be seen from paragraph No.19 of the impugned order. Under these circumstances, upon re-appreciation, re-
evaluation and reconsideration of the entire material on record, I am of the considered opinion that the trial court fell in error by granting Rs.2,000/- per annum as mesne profits, which is contrary to the material on record warranting interference by this Court in the present appeal. Accordingly, finding recorded by the trial Court insofar as mesne profits is concerned, deserves to be set aside.
18. In the result, I pass the following:
ORDER
i) Appeal is hereby partly allowed.
ii) Impugned order passed by the trial Court dated 04.10.2016 in O.S.No.36/2015 on the file of the Senior Civil Judge, Kundapura and the impugned
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NC: 2024:KHC:35238 RFA No. 1836 of 2023 corresponding final decree dated 22.06.2023 in FDP No.6/2016 on the file of the Senior Civil Judge, Kundapura, insofar as it relates to division/partition of all item Nos.1 to 4 of the suit schedule properties, is hereby confirmed.
iii) Impugned judgment and corresponding final decree insofar as it relates to granting mesne profits at Rs.2,000/- per annum in favour of the respondents is hereby set aside.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE MDS List No.: 1 Sl No.: 7