Karnataka High Court
Sunanda W/O Chandrashekhar vs Parvatamma W/O. Paruteppa Belagavi on 8 November, 2021
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
WRIT PETITION No.109438/2014 (GM-CPC)
BETWEEN:
1. SMT.SUNANDA W/O CHANDRASHEKHAR
@ CHANDRAPPA BELAGAVI,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O. KARIKATTI, TQ: SAUNDATTI
DIST: BELGAUM.
2. SMT.JAYASHREE D/O CHANDRASHEKHAR
@ CHANDRAPPA BELAGAVI,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK
R/O. KARIKATTI, TQ: SAUNDATTI,
DIST: BELGAUM.
3. SMT.RAJASHREE D/O. CHANDRASHEKHAR
@ CHANDRAPPA BELAGAVI,
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
R/O. BELUR, TQ: BADAMI,
DIST: BAGALKOT.
4. SMT.MANJULA D/O. CHANDRASHEKHAR
@ CHANDRAPPA BELAGAVI,
AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
R/O. BELUR, TQ: BADAMI,
DIST: BAGALKOT. ...PETITIONERS
(BY SHRI.S.L.MATTI, ADVOCATE)
AND:
1. PARVATAMMA W/O. PARUTEPPA BELAGAVI,
SINCE DECEASED REPRESENTED
BY RESPONDENTS 2 TO 5.
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2. SMT.IRAVVA W/O. SIDDAPPA MUGALIHALLI,
AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
R/O. LINGANMATH, TQ: KHANAPUR
DIST: BELGAUM.
3. SMT.GANGAVVA W/O. MALLIKARJUNAPPA VIJAPUR,
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
R/O. KARIKATTI, TQ: SAUNDATTI,
DIST: BELGAUM.
4. SMT.BASAVVA W/O. SOMAPPA HUBBALLI,
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O. TIMMAPUR, TQ and DIST: DHARWAD.
5. SMT.NEELAVVA W/O. SHIVARAYAPPA MUGALIHAL,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O. LINGANMATH, TQ: KHANAPUR,
DIST: BELGAUM. ..RESPONDENTS
(BY SHRI.R.H.ANGADI, ADV. FOR R2,
R3, R4, R5 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH AN ORDER
DATED 08.09.2014 ON I.A.NO.III AND IV IN F.D.P.NO.3/2014, ON
THE FILE OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM
DHARWAD VIDE ANNEXURE-J AND ALLOW THE I.A.NO.III AND IV
AS PRAYED IN THE SAID APPLICATION.
THIS WRIT PETITION COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. While the above petition was pending, respondent No.1 expired on 07.12.2014 pursuant to which a memo dated 25.10.2018 had been filed by the petitioners to treat the respondents 2 to 5 as the legal representatives of deceased respondent :3: No.1. Learned counsel for the respondents has no objection for allowing the said memo. Hence, the memo is allowed, respondents 2 to 5 are treated as legal representatives of deceased respondent No.1. Learned counsel for the petitioners is permitted to carry out necessary amendment to the cause title.
2. The petitioners are before this Court seeking for the following relief:
" A writ of certiorari quashing an order dated 08.09.2014 on I.A.No.III and IV in F.D.P.No.3/2014, on the file of III Additional Senior Civil Judge and CJM Dharwad vide Annexure-J and allow the I.A.No.III and IV as prayed in the said application."
3. A suit in O.S.No.178/1996 had been filed by respondent No.1 herein during her lifetime seeking for partition of various properties wherein petitioners herein were arrayed as defendants 1 to
4. The said suit came to be dismissed on the ground that all the properties belonging to the :4: family were not made part of the schedule to the said suit and also that the properties which had been made part of the schedule, no documents had been produced to prove that they were joint family properties.
4. Aggrieved by the same, respondent No.1 herein who was the plaintiff therein filed an appeal in R.A.No.2/2001. The II Additional District Judge, Dharwad, allowed the said appeal by holding that respondent No.1/plaintiff is entitled to 7/18th share in the suit schedule property in O.S.NO.178/1996.
5. Aggrieved by the same, the petitioner herein filed an appeal in R.S.A.No.172/2003. The said Regular Second Appeal came to be dismissed on the ground that though the suit for partial partition was not maintainable, such a stand was not taken by the petitioners herein who were the defendants therein by filing necessary application :5: to include other properties in the plaint schedule and as such, the appeal came to be dismissed.
6. A review petition in R.P.No.1520/2013 had been filed by the 1st petitioner herein for review of the said order. The said review petition came to be dismissed on the ground that there was an appellate remedy available and there were no grounds for review of the order.
7. Subsequent thereto the petitioners herein filed an application in I.A.No.3 under Section 151 of CPC in the pending Final Decree proceedings in F.D.P.No.3/2014 directing the plaintiff to add two properties to the schedule in the Final Decree proceedings. In the affidavit filed in support of the said application, it was contended that the two properties had been left out and those two properties belonged to the grandfather of the petitioners herein. After his death, it vested with the grandmother who had released her rights in :6: favour of the daughters and as such, those properties were required to be made part of the schedule. A further application was filed under Order XX Rule 18 (2) read with Section 151 of the CPC in I.A.No.4 for enquiry into the share of the parties in the aforesaid two properties sought to be included. The said application came to be rejected vide a common order dated 08.09.2014 by the trial Court holding that there could not be inclusion of the properties in the Final Decree proceedings. It is that order which is challenged in the present proceedings.
8. Shri S.L.Matti, learned counsel for the petitioners relies upon the decision of the Apex Court in S.SATNAM SINGH VS. SURENDER KAUR reported in 2009 (2) SCC 562 more particularly paragraph 9 thereof which is reproduced hereunder for easy reference:
:7:"9. An interlocutory application was filed by the appellant thereafter purported to be in terms of Order XX Rule 18 of the Code of Civil Procedure read with Section 152 of the Code of Civil Procedure with regard to the share of the parties in the said Bombay Cycle Company. The respondents objected thereto. By reason of an order dated 14th March, 2006, the said application was allowed, directing :
" Admittedly the petitioners have raised a plea in respect of Bombay Cycle Company in their written statement but there was no specific issue framed in the regard. The learned counsel appearing for the petitioners submit that in order to shorten the litigation instead of driving the parties to a separate action, the present dispute can be decided in the present dispute itself. The petitioners in support of their contention relied on the decision of our Hon'ble High Court in Syed Ikramuddin v. Syed Mahamed Ali reported in AIR 1986 AP 267. Further there is a dispute with regard to the Bombay Cycle Co. business. Whether it is a joint family business and whether the petitioners are having any share in the property cannot be decided without making any enquiry in that direction. Therefore, I feel that the parties should be directed to adduce oral or documentary evidence in respect of their respective contentions so as to enable this Court to decide the point of controversy. It is also not out of place of mention here that the Hon'ble High Court also directed to dispose of the matter at the earliest possible time. Accordingly the parties are directed to lead oral and documentary evidence in support of their contentions. The respondent No.4 herein is not a party to the suit.:8:
No relief is passed against the respondent No.4 herein is not a party to the suit. No relief is passed against the respondent No.4 in this petition. Call on 16.3.2006."
9. By relying upon the aforesaid decision, learned counsel for the petitioners would contend that the properties which had been left out could always be included in the Final Decree proceedings and parties permitted to adduce oral and documentary evidence in respect of their respective contentions and thereafter Final Decree proceedings Court could decide the matter. Instead of doing so, the trial Court has dismissed the IAs which is not permissible. He submits that there is a finding rendered in the judgment dated 13.12.2000 in O.S.No.178/1996 that the property covered under V.P.C.No.101 of Linganamath village is a joint family property. The said finding not having been challenged by the plaintiff has attained finality. Therefore, the property having been held to be joint family property in the judgment dated :9: 13.12.2000 in O.S.No.178/1996 ought to have been included in the Final Decree proceedings. On these grounds, he submits that the impugned order needs to be set aside and I.A.Nos.3 and 4 filed in F.D.P.No.3/2014 is required to be allowed.
10. Per contra, Shri R.H.Angadi, learned counsel for the respondents would submit that there is a dispute as to whether the property is a joint family property or not? When such a dispute has arisen, there cannot be introduction of a property in the Final Decree proceedings which requires adjudication as regards the property being a joint family property or not. As such, the Final Decree court has by relying upon the decision in CHANNAVEERAPPA GOWDA VS. SRI RENUKAPPA GOWDA AND OTHERS reported in 2014 KCCR 2214 has rightly rejected the applications. There is no requirement of this Court : 10 : to intercede in the matter and the petition is liable to be dismissed.
11. Heard Shri S.L.Matti, learned counsel for the petitioners and Shri R.H. Angadi, learned counsel for the respondents.
12. The only contention which has been urged in respect of the above petition is that there is a finding in O.S.No.178/1996 vide judgment dated 13.12.2000 that the property bearing V.P.C.No.101 is a joint family property and that if a property has been left out in the suit, the same could be included in the Final Decree proceedings.
13. Though, it is correct to say in the judgment dated 13.12.2000 in O.S.No.178/1996, the trial Court came to a conclusion that the property is joint family property but however, the same has been reversed by the First Appellate court in R.A.No.2/2001 wherein the first Appellate Court at : 11 : paragraph 18 thereof has categorically held that the finding that property covered under V.P.C.No.101 belonged to the family of late Parwatewwa is contrary to the pleadings and the evidence on record and therefore it cannot be accepted. The first Appellate Court while referring to the written statement has categorically held that nowhere defendants 1 to 4 had claimed that the property comprised in V.P.C.No.101 are joint family properties. This finding has attained finality inasmuch as the appeal in R.S.A.No.172/2003 filed by the petitioners herein came to be rejected. As regards the review petition having been filed, the review petition also came to be dismissed. Thus the finding at paragraph 18 in R.A.No.2/2001 has attained finality and it cannot be said that the property is a joint family property since the first Appellate Court has come to a conclusion that : 12 : the said property in V.P.C.No.101 is not a joint family property.
14. It is in that background the contention of Shri S.L.Matti, learned counsel for the petitioners is required to be appreciated.
15. This is a classic case of how a litigation can be protracted. The suit was filed in the year 1996 and the judgment was passed in December, 2000 and even in the year 2021, the Final Decree proceedings are yet to culminate. In between the first Appellate Court passed a judgment on 15.11.2002 and the Regular Second Appeal came to be disposed off on 24.08.2012. The present applications had been filed in the year 2014.
16. The petitioners who were defendants in the said suit had never contended that the properties now sought to be brought on record vide I.A.No.3 were joint family properties. Though the trial court has : 13 : held that one of the properties was a joint family property, the same has been reversed by the first Appellate Court. It is only when the proceedings were nearing culmination and the other parties sought to compromise the matter, that the present applications were filed by the petitioners only to delay and protract the proceedings as also to create obstacles for the compromise petition being taken on record and the compromise being recorded.
17. During the entire period from the time of filing of the suit in 1996 till the disposal of the second appeal in the year 2012 as also till the disposal of the revision in the year 2013, the petitioners who were defendants in the suit had never taken up a contention that the properties now sought to be brought on record were joint family properties despite the earlier finding by the trial Court which had been reversed by the first Appellate Court. : 14 : The filing of the present applications in I.A.Nos.3 and 4 in the final decree proceedings, in my considered opinion is a gross abuse of the process of the Court resorted only to protract the proceedings and for no other reason.
18. There cannot be a quarrel with the proposition that a left out property can be brought on record in the Final Decree proceedings so long as there is no dispute that the same is a joint family property.
19. In the present case, it cannot out rightly be said that the properties were never brought on record inasmuch as the trial Court had held that it is a joint family property and the first Appellate Court has held that it was not a joint family property. There being a finding already rendered by the said courts which has attained finality, the petitioners could not have sought to bring those properties on record in the Final Decree proceedings. Though not only for the : 15 : grounds as stated by the Final Decree court but also for the aforesaid grounds, I am of the considered opinion that there are no grounds made out to entertain the above petition,
20. The petition is therefore dismissed.
[Sd/-] JUDGE Jm/-