Karnataka High Court
Rajendra Kumar Patil S/O Late Vithal Rao ... vs Smt.Swathireddy And Ors on 20 July, 2023
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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MSA No. 200088 of 2019
C/W MSA No. 200087 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
MSA NO. 200088 OF 2019 (RO)
C/w.
MSA NO. 200087 OF 2019
IN MSA NO.200088/2019:
BETWEEN:
RAJENDRA KUMAR PATIL S/O VITTAL RAO,
AGE: 57 YEARS, OCC: NIL,
R/O KALLOR COLONY, RAICHUR.
...APPELLANT
(BY SRI AMEETH KUMAR DESHPANDE, SR. ADVOCATE FOR
SRI MAHADEV S. PATIL, ADVOCATE)
AND:
1. K.BHEEMANNNA S/O K. MUDARANGAPPA,
Digitally AGE: 54 YEARS, OCC: BUSINESS,
signed by
SACHIN R/O K.M. COLONY, MANTRALAYAM ROAD,
Location: RAICHUR-584101
HIGH
COURT OF
KARNATAKA 2. SRI. VIJAY KUMAR S/O P.N. MALIPATIL,
AGE: 49 YEARS, OCC: PHYSICAL INSTRUCTOR,
R/O VITHALNAGAR, KALABURAGI.
3. SRI VENKATESH S/O P.N. MALIPATIL,
AGE: 47 YEARS, OCC: ADVOCATE,
R/O VITHALNAGAR, KALABURAGI.
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MSA No. 200088 of 2019
C/W MSA No. 200087 of 2019
4. SRI. N. BHASKAR CHOUDARY
S/O CHITTARANJAN,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O BESIDE DC RESIDENCE COMPOUND,
LINGASUGUR ROAD, NIJALINGAPPA COLONY,
RAICHUR-584101.
5. SMT. YANKAMMA W/O EARANNA
SINCE DECEASED BY LRS.
5A. HANUMANTH S/O EARANNA,
AGE: MAJOR, OCC: AGRICULTURE,
R/O NEERMANVI, TQ. MANVI,
DIST : RAICHUR.
6. SRI DODDA RAMANNA
(SINCE DEAD BY HIS L.RS.)
6A. SMT HANUMANTHI
W/O LATE DODDA RAMANNA,
AGE: 74 YEARS, OCC: AGRI.,
R/O NEERMANVI, TQ. MANVI,
DIST : RAICHUR-584101.
6B. SRI. J. HANUMANTHA
S/O LATE DODDA RAMANNA,
AGE: 49 YEARS, OCC: AGRI.,
R/O NEERMANVI, TQ. MANVI,
DIST : RAICHUR-584101.
6C. SRI. J. SRINIVAS
S/O LATE DODDA RAMANNA,
AGE: 48 YEARS, OCC: AGRI.,
R/O NEERMANVI, TQ. MANVI,
DIST : RAICHUR-584101
6D. SRI. J. SANGANNA S/O LATE DODDA RAMANNA,
AGE: 41 YEARS, OCC: AGRI.,
R/O NEERMANVI, TQ. MANVI,
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MSA No. 200088 of 2019
C/W MSA No. 200087 of 2019
DIST : RAICHUR-584101.
7 SRI. SUNDAR SRIVASTAV S/O SRIRAMULU,
AGE: 74 YEARS, OCC: RETD. LECTURER,
R/O NIJALINGAPPA COLONY,
RAICHUR-584101.
8. SRI. GURURAJ KRISHNAJI PYATI,
S/O K.R. RAJACHAR, AGE: 54 YEARS,
OCC: COMMERCIAL ARTIST,
R/O BEHIND IB COLONY,
RAICHUR-584101.
9. SRI. V. LAXMIKANTH RAJ
S/O V. RAJANNA, AGE: 52 YEARS,
OCC: BUSINESS, R/O AZAD NAGAR,
RAICHUR-584101.
10. SMT. MADHVI LATHA
W/O GADWAL SHAMSUNDAR,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O MADDIPET, RAICHUR-584101.
11. SMT. ANURADHA W/O D. BHEEMANNA,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O NEAR VIDYABHARTHI SCHOOL,
RAICHUR-584101.
12. KUMARI RADHIKA D/O D. BHEEMANNA,
AGE: 48 YEARS, OCC: HOUSEHOLD,
C/O D. BHEEMANNA, NEAR VIDYABHARTHI
SCHOOL, RAICHUR-584101.
13. KUMARI KARTIKA D/O D. BHEEMANNA,
AGE: 46 YEARS, OCC: HOUSEHOLD,
C/O D. BHEEMANNA, NEAR VIDYABHARTHI
SCHOOL, RAICHUR-584101.
14. SRI B. LINGANNA S/O NARAYANAPPA,
AGE: 44 YEARS, OCC: BUSINESS,
-4-
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MSA No. 200088 of 2019
C/W MSA No. 200087 of 2019
R/O ALEXANDER HAIR CUTTING SHOP,
STATION ROAD, RAICHUR-584101.
15. SMT. SWATHIREDDY
W/O S. RAJENDRAREDDY,
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O NAVODAYA MEDICAL COLLEGE,
OPP. MANTRALAYAM ROAD,
RAICHUR-584101.
16. SRI. PRAMOD KUMAR S/O B. KRISHNA RAO,
AGE: 47 YEARS, OCC: HOUSEHOLD,
R/O H.NO.7580, JAWAHARNAGAR,
RAICHUR-584101.
17. SMT. SAVITRI W/O P. SHARNAPPA,
AGE: 53 YEARS, OCC: HOUSEHOLD,
R/O MANGALAWARPET,
RAICHUR-584101.
18. SMT. RAMADEVI
W/O B.H. SHIVASHANKAR,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O UDAYA NAGAR, LAXMINILAYA,
RAICHUR-584101.
19. SRI. BEVINAL KRISHNACHAR
S/O SWAMIYARACHAR,
AGE: 74 YEARS, OCC: RETD. REVENUE OFFICER,
R/O DASARA COLONY,
RAICHUR-584101.
20. SRI. RAJARAMACHARYA S/O GURURAJACHARY,
AGE: 56 YEARS, OCC: LIC EMPLOYEE,
R/O DATAR COLONY, RAICHUR-584101.
21. SMT. PADMAVATHI W/O NAGRAJ,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O IDSMT LAYOUT, RAICHUR.-584101.
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MSA No. 200088 of 2019
C/W MSA No. 200087 of 2019
22. SMT. AYESH AZIZ ANJUM
W/O MHAMMED BADRUZZANNA,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O RAICHUR-584101.
23. SRI. VISHNU THIPPANNA M. MASTI
S/O THIPPANNA M. MASTI,
AGE: 61 YEARS, OCC: LECTURER,
AMERKHED LAYOUT, RAICHUR-584101.
24. SRI M. PAMAPAPTHI S/O SHARABANNA,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O DATAR COLONY, RAICHUR-584101.
25. SMT. SIDDAMMA W/O VEERBADRAYYA SWAMI
AGE: 49 YEARS, OCC: LIC EMPLOYEE,
R/O DATAR COLONY, RAICHUR.-584101.
26. SRI SRINIVAS MURTHY S/O NARSIMHA MURTHY,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O HYDERABAD (TELENGANA).
27. SRI. N. GOVINDRAJ S/O NARASAPPA,
AGE: 57 YEARS, OCC: BUSINESS,
R/O DATAR COLONY, RAICHUR-584101.
28. SRI. DEEPAK S/O SURYAKANTH RAO,
AGE: 59 YEARS, OCC: BUSINESS,
R/O DATAR COLONY, RAICHUR-584101.
29. SMT. UMA S. ACHARYA
W/O B. SEETHARAMCHAR,
AGE: 49 YEARS, OCC: HOUSEHOLD,
R/O BEHIND IB COLONY,
RAICHUR-584101.
30. SRI. M. HUSSAINAPPA S/O M. MANIKAPPA
AGE: 59 YEARS, OCC: BUSINESS,
R/O BEHIND IB COLONY, RAICHUR-584101.
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MSA No. 200088 of 2019
C/W MSA No. 200087 of 2019
31. SMT. D.M. NIRMALA W/O MALLIKARJUN,
AGE: 59 YEARS, OCC: HOUSEHOLD,
R/O BEHIND IB COLONY, RAICHUR-584101.
32. SRI. YEERYSWAMY GEJJI
S/O G. PARMESHWARAPPA,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O SBH COLONY, RAICHUR-584101.
33. SRI. K. SHARATH REDDY S/O K.V. KRISHNAREDDY
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O SBH COLONY, RAICHUR-584101.
34. B. SEETHARAMACHAR S/O B. GURURAJACHAR,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O SBH COLONY, RAICHUR-584101.
35. SRI. V. RAMMOHAN GUPTA
S/O GOPALAIAH SHETTY,
AGE: 49 YEARS, OCC: BUSINESS,
R/O NET PHARMACY COLLEGE,
MANTRALAYA ROAD, RAICHUR-584101.
36. SMT. SARASWATAMMA
W/O SANNA SHABULINGAPPA,
AGE: 47 YEARS, OCC: HOUSEHOLD,
R/O NET PHARMACY COLLEGE,
MANTRALAYA ROAD,
RAICHUR-584101.
37. SRI. K. RAVIRAJ S/O K. MUDDURANGAPPA,
AGE: 45 YEARS, OCC: BUSINESS,
R/O SAI APARTMENTS, ASHOK NAGAR,
HYDERABAD (TELENGANA STATE).
38. SRI. N. SHANKARNARAYANA
S/O T. NARASIMHALU,
SINCE DECEASED BY HIS ALREADY
ON RECORD RESPONDENT NO.39
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MSA No. 200088 of 2019
C/W MSA No. 200087 of 2019
(AMENDED AS PER THE ORDER DATED
19.01.2022).
39. SRI. SURESH BABU
S/O T. NARASIMHALU,
AGE: 47 YEARS, OCC: BUSINESS,
R/O BEHIND ST. MARRYS CONVENT,
OPPOSITE AMBABHAVANI MANDIR,
AMBABHAVANI STREET, STATION ROAD,
RAICHUR-584101.
40. SMT. MEENAKSHI W/O HANUMANTHRAYA,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O GANGAPARMESHWARI LAYOUT,
BESIDE IDMST LAYOUT, RAICHUR,
LANDMARK: BESIDE COMMERCIAL TAX OFFICE,
DIST : RAICHUR-584101.
...RESPONDENTS
(BY SRI CHAITANAYAKUMAR C. M., ADVOCATE FOR R15;
SRI MANJUNATH GINNI, FOR R5(A);
SRI ARUNKUMAR A., ADVOCATE FOR R18 & R37;
SRI SACHIN M. MAHAJAN, ADVOCATE FOR R1;
NOTICE R6(A), R6(B), R6(C), R6(D), R8, R9, R11, R12, R13,
R14, R16, R17, R20, R39, R40 ARE SERVED;
V/O DATED 31.03.2021 NOTICE R7 IS HELD SUFFICIENT;
V/O DATED 28.01.2022 NOTICE R24, R29, R30, R34 & R35
ARE HELD SUFFICIENT;
NOTICE TO R2 TO R4, R19, R21, R22, R23, R25 TO R28, R30,
R32 & R36 ARE DISPENSED WITH AT THE RISK AND
CONSEQUENCES OF APPELLANT;
V/O DATED 04.02.2022 R39 IS THE LR'S OF DECEASED R38;
V/O DATED 17.03.2022 NOTICE TO R10, R31 & R33 AS
DISPENSED WITH AT THE RISK OF THE APPELLANT)
THIS MSA IS FILED UNDER SEC.43 RULE 1(U) OF CPC.,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 22.04.2019 PASSED IN
R.A.NO.27/2015 BY THE LEARNED II ADDL. DISTRICT AND
SESSIONS JUDGE AT RAICHUR, IN ACCORDANCE WITH LAW.
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MSA No. 200088 of 2019
C/W MSA No. 200087 of 2019
IN MSA NO.200087/2019:
BETWEEN:
RAJENDRA KUMAR PATIL S/O VITTAL RAO,
AGE: 56 YEARS, OCC: NIL,
R/O KALLOR COLONY, RAICHUR.
...APPELLANT
(BY SRI AMEETH KUMAR DESHPANDE, SR. ADVOCATE FOR
SRI MAHADEV S. PATIL, ADVOCATE)
AND:
1. SMT. SWATHIREDDY W/O S. RAJENDRAREDDY,
AGE: 49 YEARS, OCC: HOUSEHOLD,
R/O NAVODAYA MEDICAL COLLEGE,
MANTRALAYAM ROAD, RAICHUR-584101.
2. SRI. PRAMOD KUMAR S/O B. KRISHNA RAO,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O H.NO.7580, JAWAHARNAGAR,
RAICHUR-584101.
3. SRI. K. SHARATH REDDY S/O K.V. KRISHNAREDDY,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O SBH COLONY, RAICHUR-584101.
4. SRI. V. RAMMOHAN GUPTA
S/O GOPALAIAH SHETTY,
AGE: 52 YEARS, OCC: BUSINESS,
R/O NET PHARMACY COLLEGE,
MANTRALAYA ROAD, RAICHUR-584101.
5. SRI. VIJAY KUMAR S/O P.N. MALIPATIIL,
AGE: 52 YEARS, OCC: PHYSICAL INSTRUCTOR,
R/O VITHLNAGAR, KALABURAGI.
6. SRI VENKATESH S/O P.N. MALIPATIL,
AGE: 50 YEARS, OCC: ADVOCATE,
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MSA No. 200088 of 2019
C/W MSA No. 200087 of 2019
R/O VITHALNAGAR, KALABURAGI.
7. SRI. N. BHASKAR CHOUDARY
S/O CHITTARANJAN, AGE: 65 YEARS,
OCC: AGRICULTURE, R/ BESIDE DC
RESIDENCE COMPOUND,
LINGASUGUR ROAD, NIJALINGAPPA
COLONY, RAICHUR-584101.
8. K. BHIMANNA S/O K. MUDDURANGAPPA,
AGE: 57 YEARS, OCC: BUSINESS,
R/O K.M. COLONY, MANTRALAYAM ROAD,
RAICHUR-584101.
9. SMT. YANKAMMA W/O EARANNA,
SINCE DECEASED BY LRS.
9A. HANUMANTH S/O EARANNA,
AGE: MAJOR, OCC: AGRICULTURE,
R/O NEERMANVI, TQ. MANVI,
DIST. RAICHUR.
(AMENDED AS PER THE ORDER DATED
19.01.2022)
10. SRI. DODDA RAMANNA
(SINCE DEAD BY HIS L.RS.)
10A. SMT. HANUMANTHI
W/O LATE DODDA RAMANNA,
AGE: 76 YEARS, OCC: AGRI.,
R/O NEERMANVI, TQ. MANVI,
DIST : RAICHUR-584101.
10B. SRI. J. HANUMANTHA
S/O LATE DODDA RAMANNA,
AGE: 52 YEARS, OCC: AGRI.,
R/O NEERMANVI, TQ. MANVI,
DIST : RAICHUR-584101.
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C/W MSA No. 200087 of 2019
10C. SRI. J. SRINIVAS
S/O LATE DODDA RAMANNA,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O NEERMANVI, TQ. MANVI,
DIST : RAICHUR-584101.
10D. SRI. J. SANGANNA
S/O LATE DODDA RAMANNA,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O NEERMANVI, TQ. MANVI,
DIST. RAICHUR-584101.
11. SRI. SUNDAR SRIVASTAV
S/O SRIRAMULU, AGE: 77 YEARS,
OCC: RETD. LECTURER,
R/O NIJALINGAPPA COLONY,
RAICHUR-584101.
12. SRI. GURURAJ KRISHNAJI PYATI
S/O K.R. RAJACHAR, AGE: 57 YEARS,
OCC: COMMERCIAL ARTIST,
R/O BEHIND IB COLONY,
RAICHUR-584101.
13. SRI. V. LAXMIKANTH RAJ
S/O V. RAJANNA, AGE: 56 YEARS,
OCC: BUSINESS, R/O AZAD NAGAR,
RAICHUR-584101.
14. SMT. MADHVI LATHA
W/O GADWAL SHAMSUNDAR,
AGE: 57 YEARS, OCC: HOUSEHOLD,
R/O MADDIPET, RAICHUR-584101.
15. SMT. ANURADHA W/O D. BHEEMANNA,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O NEAR VIDYABHARATHI SCHOOL,
RAICHUR-584101.
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MSA No. 200088 of 2019
C/W MSA No. 200087 of 2019
16. KUMARI RADHIKA D/O D. BHEEMANNA,
AGE: 48 YEARS, OCC: HOUSEHOLD,
C/O D. BHEEMANNA,
NEAR VIDHYABHARATHI SCHOOL,
RAICHUR-584101.
17. KUMARI KARTIKA D/O D. BHEEMANNA,
AGE: MAJOR, OCC: HOUSEHOLD,
C/O D. BHEEMANNA,
NEAR VIDYABHARATHI SCHOOL,
RAICHUR-584101.
18. SRI B. LINGANNA S/O NARAYANAPPA,
AGE: 47 YEARS, OCC: BUSINESS,
R/O ALEXANDER HAIR CUTTING SHOP,
STATION ROAD, RAICHUR-584101.
19. SMT. SAVITRI W/O P. SHAKRAPPA,
AGE: 56 YEARS, OCC: HOUSEHOLD,
R/O MANGALAWARPET, RAICHUR-584101.
20. SMT. RAMADEVI
W/O B.H. SHIVASHANKAR,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O UDAY NAGAR, LAXMINILAYA,
RAICHUR-584101.
21. SRI. BEVINAL KRISHNACHAR
S/O SWAMIYARACHAR,
AGE: 77 YEARS,
OCC: RETD. REVENUE OFFICER,
R/O DASARA COLONY,
RAICHUR-584101.
22. SRI. RAJARAMACHARYA S/O GURURAJCHARYA,
AGE: 59 YEARS, OCC: LIC EMPLOYEE,
R/O DATAR COLONY, RAICHUR-584101.
23. B. GOPAL S/O NARAYANAPPA,
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MSA No. 200088 of 2019
C/W MSA No. 200087 of 2019
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O VIJAY NAGAR COLONY, ASHAPUR ROAD,
RAICHUR-584101.
24. SMT. PADMAVATHI NAGARAJ
W/O NAGRAJ, AGE: 54 YEARS,
OCC: HOUSEHOLD, R/O IDSMT LAYOUT,
RAICHUR-584101.
25. SMT. AYESH AZIZ ANJUM
W/O MOHAMMED BADRUZZANA,
AGE: 57 YEARS, OCC: HOUSEHOLD,
R/O RAICHUR -584101.
26. SRI. VISHNU THIPPANNA M. MASTI
S/O THIPPANNA M. MASTI,
AGE: 64 YEARS, OCC: LECTURE,
R/O AMERKHED LAYOUT,
RAICHUR-584101.
27. SRI M. PAMPAPATHI S/O SHARABANNA,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O DATAR COLONY, RAICHUR-584101.
28. SMT. SIDDAMMA W/O VEERBADRAYYA SWAMI,
AGE: 52 YEARS, OCC: LIC EMPLOYEE,
R/O DATAR COLONY, RAICHUR-584101.
29. SRI SHRINIVAS MURTHY S/O NARSIMHA MURTHY,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O HYDERABAD (TELENGANA).
30. SRI. N. GOVINDRAJ S/O NARASAPPA,
AGE: 60 YEARS, OCC: BUSINESS,
R/O DATAR COLONY, RAICHUR-584101.
31. SRI. DEEPAK S/O SURYAKANTH RAO,
AGE: 62 YEARS, OCC: BUSINESS,
R/O DATAR COLONY, RAICHUR-584101.
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C/W MSA No. 200087 of 2019
32. SMT. UMA S. ACHARYA
W/O B. SEETHARAMCHAR
AGE: 52 YEARS, OCC: HOUSEHOLD,
R/O BEHIND IB COLONY,
RAICHUR-584101.
33. SRI. M. HUSSAINAPPA
S/O M. MANIKAPPA,
AGE: 62 YEARS, OCC: BUSINESS,
R/O BEHIND IB COLONY,
RAICHUR-584101.
34. SMT. D.M. NIRMALA W/O MALLIKARJUN
AGE: 62 YEARS, OCC: HOUSEHOLD,
R/O BEHIND IB COLONY,
RAICHUR-584101.
35. SRI. YEERYSWAMY GEJJI
S/O G. PARMESHWARAPPA,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O SBH COLONY, RAICHUR-585101.
36. B. SEETHARAMACHAR S/O B. GURURAJACHAR,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O SBH COLONY, RAICHUR-585101.
37. SMT. SARASWATAMMA
W/O SANNA SHABULINGAPPA,
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O NET PHARMACY COLLEGE,
MANTRALAYA ROAD, RAICHUR-584101.
38. SRI. K. RAVIRAJ S/O K. MUDDURANGAPPA,
AGE: 48 YEARS, OCC: BUSINESS,
R/O SAI APARTMENTS, ASHOK NAGAR,
HYDERABAD (TELENGANA STATE).
39. SRI. N. SHANKARNARAYANA
S/O T. NARASIMHALU,
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MSA No. 200088 of 2019
C/W MSA No. 200087 of 2019
(SINCE DECEASED BY HIS LRS.
ALREADY ON RECORD RESPONDENT NO.40)
(AMENDED AS PER ORDER
DATED 19.01.2022)
40. SRI. SURESH BABU S/O T. NARASIMHALU,
AGE: 50 YEARS, OCC: BUSINESS,
R/O BEHIND ST. MARRYS CONVENT,
OPPOSITE AMBABHAVANI MANDIR,
STATION ROAD, RAICHUR-584101.
41. SMT. MEENAKSHI W/O HANUMANTHRAYA,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O GANGAPARAMESHWARI LAYOUT,
BESIDE IDMST LAYOUT, RAICHUR,
LANDMARK: BESIDE COMMERCIAL TAX OFFICE,
DIST : RAICHUR-584101.
...RESPONDENTS
(BY SRI CHAITANAYAKUMAR C. M., ADVOCATE FOR R1 TO R4;
NOTICE TO R13, R16, R18, R22, R23, R26 ARE SERVED;
V/O DATED 31.3.21 NOTICE TO R9, R10(A) TO R10(D), R11,
R12, R14, R15, R17, R19, R20, R21, R28 TO R32 & R37 TO
R41 ARE HELD SUFFICIENT;
SRI SACHIN M. MAHAJAN, ADVOCATE FOR R8;
SRI MANJUNATH GINNI, ADVOCATE FOR R9(A)
V/O DATED 28.01.2022 SERVICE OF NOTICE TO R24 HELD
SUFFICIENT;
NOTICE TO R5 TO R7 & R25, R27, R33, R34, R35 & R36 ARE
HELD SUFFICIENT AT THE RISK AND CONSEQUENCES OF THE
APPELLANT;
V/O DATED 04.02.2022 R39 IS THE LR'S OF DECEASED R40)
THIS MSA IS FILED UNDER SEC.43 RULE 1(U) OF CPC.,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 22.04.2019 PASSED IN
R.A.NO.32/2015 BY THE LEARNED II ADDL. DISTRICT AND
SESSIONS JUDGE AT RAICHUR, IN ACCORDANCE WITH LAW.
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THESE APPEALS, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. On 24.01.2001, Vijayakumar and Venkatesh instituted the suit for partition and separate possession in respect of four non-agricultural lands bearing Sy.No.1130 measuring 02 acres 21 guntas, Sy.No.1131 measuring 36 guntas, Sy.No.1136 measuring 03 guntas and Sy.No.1137 measuring 04 acres 20 guntas.
2. The said suit was instituted against one Bhaskar Choudary and K.Bhimanna, who had purchased the aforementioned survey numbers. In the suit, they also sought for a declaration that the sale-deed executed by K.Bhimanna in favour of defendants No.3 to 36, were null and void, and not binding on them.
3. The Trial Court, by its judgment dated 08.02.2006, decreed the suit and held that Vijaykumar and Venkatesh were entitled to get half a share in the suit properties. It also held that the sale deeds executed by K.Bhimanna in
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NC: 2023:KHC-K:5712 MSA No. 200088 of 2019 C/W MSA No. 200087 of 2019 favour of defendants 3 to 39 were not binding on them. It, however, held that the defendants 3 to 39 were entitled to get the properties purchased by them to be allotted to them in equity from the share of K.Bhimanna.
4. An appeal in RFA No.660/2006 was preferred by K.Bhimanna. During the pendency of the appeal Rajendrakumar Patil purchased the half share that had been allotted to Vijaykumar and Venkatesh under registered sale-deed dated 17.05.2007.
5. The appeal filed by Vijaykumar and Venkatesh in RFA No.660 of 2006 was dismissed and SLP No.9180 of 2011 filed against the said dismissal was also dismissed on 02.09.2012. Thus, the entitlement of Vijaykumar and Venkatesh to half a share in the above properties which had been, in turn, sold in favour of Rajendrakumar Patil stood confirmed, and became final and binding on all the parties including the purchasers.
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6. It may be pertinent to state here that none of the purchasers from K.Bhimanna, preferred an appeal against the preliminary decree passed in O.S. No.24 of 2000 and they, thus, have accepted the ruling of the Trial Court that they will have to work out their equities from out of the share of Bhimanna.
7. Rajendrakumar Patil, thereafter, instituted a final decree proceeding in FDP No.5 of 2011. In the said suit, he arrayed his vendors as respondents 1 and 2 and Bhaskar Choudary and K.Bhimanna as respondents 3 and
4. The remaining purchasers were arrayed as respondents 5 to 41.
8. In these final decree proceedings, the final decree Court appointed the Assistant Director of Land Records (the 'ADLR' for short) as the Court Commissioner and the ADLR, after issuing notices to the parties and visiting the spot, submitted his report and also a sketch (Ex.C3) by which he proposed to divide the suit properties in equal proportions, each measuring 03 acres 37 guntas. For the
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NC: 2023:KHC-K:5712 MSA No. 200088 of 2019 C/W MSA No. 200087 of 2019 purposes of clarity, the sketch prepared by the ADLR (Ex.C3) and also the clear sketch produced along with the memo dated 20.07.2023 in MSA No.200087 of 2019, are reproduced as under:
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9. The Court Commissioner was examined and also cross-examined. Objections to the report submitted by the Court Commissioner were also filed by some of the parties including K.Bhimanna.
10. The Trial Court, on consideration of the objections came to the conclusion that the proposed division of the properties by Commissioner was just and proper and could not be found fault with. The Court accepted the reasons given by the Court Commissioner that 06 guntas out of total extent of 08 acres that had been left out because of the road, and thereafter, the remaining land were equally divided.
11. The Court held that the road portion indicated by the Court Commissioner had been left for both the parties and for the residential locality, and therefore, that road portion could not be taken into consideration by dividing the properties.
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12. The Court, also taking into consideration that the portion marked as 'A' property had more valuation than the portion marked as 'B' property, took the view that it was better to allot the portion marked as 'A' to K.Bhimanna and to allot the portion marked as 'B' to Rajendrakumar Patil. The Trial Court accordingly accepted the Commissioner's report and proceeded to allot portion marked as 'A' to K.Bhimanna and the property marked as 'B' to Rajendrakumar Patil.
13. Being aggrieved, K.Bhimanna (4th respondent in the final decree proceedings), Swathi Reddy, Pramodkumar, K.Sharath Reddy and B.Rammohan Gupta (who are respondents 15, 16, 34 and 36) preferred appeals.
14. It is pertinent to state here that none of the other purchasers from K.Bhimanna preferred an appeal against the order of the Trial Court, accepting the Commissioner's report.
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15. The Appellate Court, on consideration of the matter, took the view that the Commissioner ought to have first identified the suit properties, fixed boundaries and also should have measured the neighboring lands. It took the view that the Commissioner ought to have divided each of the five survey numbers equally and it should not have excluded six guntas of land, which the Commissioner had deducted due to there being a road.
16. In fact, the Appellate Court took the view that the ADLR should have taken instructions from the Trial Court regarding the 06 guntas before furnishing of the sketch and also regarding the existence of the buildings. It also took the view that since the Commissioner had stated that 'A' portion of the land was more valuable when compared to the 'B' portion of the land, the division could be improper.
17. Lastly, it also took the view that the Commissioner ought to have ascertained as to how many plots have been sold by K.Bhimanna in both 'A' and 'B' portions of the
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NC: 2023:KHC-K:5712 MSA No. 200088 of 2019 C/W MSA No. 200087 of 2019 property and thereafter, taken a decision regarding the division. The Appellate Court accordingly allowed the appeal and remanded the matter to the Trial Court with the following directions :-
"The learned trial Court shall issue fresh commission warrant by appointing the ADLR, Raichur as Court Commissioner and direct him to execute the commission warrant by dividing each survey number equally having regard to the potentiality and other aspects and to prepare sketch by showing two different portions independently.
The learned trial Court shall direct the Commissioner to fix the boundaries of the lands and to demarcate the same for the purpose of identification before proposing division.
The learned trial Court shall further direct the Court Commissioner to identify the number of structures existing in each of the portions and to show the same independently in his report.
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NC: 2023:KHC-K:5712 MSA No. 200088 of 2019 C/W MSA No. 200087 of 2019 The learned trial Court shall give an opportunity to the parties to file their Memo of instructions well in advance before the learned trial Court and the same shall be forwarded to the Court Commissioner before execution of commission warrant.
The learned trial Court shall direct the Commissioner to execute the commission warrant by answering the Memo of instructions given by the parties in their Memo of instructions and submit his report.
The learned Trial Court after receipt of commissioner's report shall direct the purchasers to file their Memos indicating in which portion their plots are existing and thereafter with the assistance of advocate, learned trial Court shall identify more number of plots sold by respondent No.4 and to allot such portion in favour of respondent No.4 so that the interest of the purchasers can be protected under equity.
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NC: 2023:KHC-K:5712 MSA No. 200088 of 2019 C/W MSA No. 200087 of 2019 The learned trial Court thereafter shall give an opportunity to both the parties to file their objections to the Commissioner's report, if any, and shall proceed to dispose of the petition in accordance with law.
The learned trial Court shall dispose of the petition within six months from the date of receiving records."
18. As against this order, by which the acceptance of the Commissioner's report was set-aside and the matter was remanded to effect a division as indicated by the Appellate Court, the present appeal has been preferred by Rajendrakumar Patil.
19. The learned Senior Counsel, Sri Amitkumar Deshpande, appearing for the appellant contended that the decision of the Appellate Court was completely irrational. He contended that since 31 out of 35 purchasers had accepted the allotment of 'A' portion of land to K.Bhimanna from whom they had purchased the property, the appeal could not have been entertained at the instance
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NC: 2023:KHC-K:5712 MSA No. 200088 of 2019 C/W MSA No. 200087 of 2019 of the vendor--K.Bhimanna and four other purchasers who had not even put-up any structure. He submitted that the Commissioner had basically divided the property vertically and allotted equivalent portions to both parties and this was the only pragmatic way of dividing the property so as to ensure that the appellant could meaningfully enjoy his half a share of four acres.
20. Learned counsel submitted that neither the identity of the property nor its boundaries were ever in dispute for the Appellate Court to find fault with the Commissioner's report. He contended that the observations of the Trial Court that 06 guntas of land set apart for road ought not to have been done, was completely irrational, since 06 guntas of land was absolutely required to be left out for the purpose of access to both parties.
21. Learned counsel submitted that when the preliminary decree stated that the sales made by K.Bhimanna were not binding on the plaintiff and the purchasers had to workout their equities in the share allotted to K.Bhimanna,
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NC: 2023:KHC-K:5712 MSA No. 200088 of 2019 C/W MSA No. 200087 of 2019 the Trial Court could not have nullified this preliminary decree which had attained finality by asking the Commissioner to determine how many plots were sold in each portion and allot that portion, in which the larger number of sites had been sold, in favour of K.Bhimanna. He submitted that the approach adopted by the Appellate Court virtually ensures that the property could never be divided in an equitable manner.
22. Learned counsel for K.Bhimanna and four other purchasers, on the other hand, contended that the judgment of the Trial Court and the Appellate Court were justified and proper and that do not call for any interference. He contended that the Appellate Court has taken into consideration the difficulties that would be caused to all the parties and has passed an order which would be fair to both sides.
23. In light of the above arguments, the question that would arise for consideration in these second appeals is:
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NC: 2023:KHC-K:5712 MSA No. 200088 of 2019 C/W MSA No. 200087 of 2019 "Whether the Appellate Court was justified in setting aside the order of the Trial Court by which the Trial Court had accepted the division of the property in equal proportions ?"
24. As stated above, the preliminary decree was to the effect that the predecessors-in-interest of Rajendrakumar Patil were entitled to half a share in the following survey numbers :-" Sy.No.1130 measuring 02 acres 21 guntas; Sy.No.1131 measuring 36 guntas; Sy.No.1136 measuring 03 guntas; and Sy.No.1137 measuring 04
acres 20 guntas."
i.e., he was entitled for 04 acres out of total extent of 08 acres.
25. It is not in dispute that all these four survey numbers are adjoining to each other and formed one contiguous plot. As could be seen from the sketch the four survey numbers are located in such a way that even if each
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NC: 2023:KHC-K:5712 MSA No. 200088 of 2019 C/W MSA No. 200087 of 2019 survey number is divided equally, it would be impossible to have a contiguous piece of land with clear access to both the parties.
26. It is to be noticed here that the land bearing Sy.Nos.1131 and 1136 measuring only 36 guntas and 03 guntas respectively and dividing these non-agricultural lands measuring 36 guntas and 03 guntas would create small islands which neither of the parties would be able to enjoy in any meaningful manner.
27. The Commissioner had proposed to make a vertical division of the entire area which measures 08 acres so as to ensure that both the parties would have equal frontage to the main road and there could be a common area left for the access. In my view, this division proposed by the Commissioner was just and proper and was rightly accepted by the Trial court. The Appellate Court, on an improper understanding of the situation, has proceeded to hold that each survey number was to be divided equally.
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28. The observation of the Appellate Court that on receipt of the Commissioner's report, the purchasers should be directed to file memos indicating in which portions their plots existed, and then allot the portion in which larger number of plots were sold to K.Bhimanna and thereafter, to the purchasers would be wholly incorrect. A majority of the purchasers, as stated above, accepted the division of the property into two portions and only four purchasers had filed an appeal. In the light of the fact that a majority of the purchasers had agreed for the demarcation, the Appellate Court ought not to have entertained the plea by the vendor.
29. It is to be noticed here that the vendor K.Bhimanna had not stated before the Trial Court the extent of plots that he had sold and also the location of the plots that he had sold. As noticed by the Trial Court, his contention was that the portions which had been earmarked for the formation of the road, as per the plan prepared by the authority, had not been taken into consideration by the
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NC: 2023:KHC-K:5712 MSA No. 200088 of 2019 C/W MSA No. 200087 of 2019 Commissioner and the exclusion of those portions earmarked had reduced its area. Even according to the objections filed by K.Bhimanna, he had sold certain open plots to the other respondents, but he did not choose to inform the Court the exact measurement and the exact area in which he had sold the plots. It is obvious that it was his intention that the properties should not be partitioned in an equitable manner and he wanted to safeguard the sales made by him. Even according to his objections, only respondent No.9 had constructed a building in Plot No.14. He also contended that he had constructed a building in a plot on the suit land along with a few shops and sheds without, however, indicating in which portion of the land he had put-up such structures.
30. Learned Senior Counsel, in fact, produced a snapshot of the location of the property captured through Google Maps. This photograph indicates that apart from a few structures abutting the road on the north-eastern side of the plot and three structures in the portion earmarked
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NC: 2023:KHC-K:5712 MSA No. 200088 of 2019 C/W MSA No. 200087 of 2019 as 'A' and one structure in the portion earmarked as 'B', the entire land is vacant.
31. Having regard to the fact that the preliminary decree categorically stated that the purchasers would have to workout their equities by claiming the plots in the portion to be allotted to K.Bhimanna and having regard to the fact that the majority of the purchasers accepted the allocation of the portion marked as 'A' to K.Bhimanna as K.Bhimanna's share, the Appellate Court seriously erred in disturbing this well reasoned order of the Trial Court.
32. An argument was advanced by the learned counsel for the purchasers that there is a possibility that K.Bhimanna had sold more than his entitlement of 50% in the suit properties and this would cause immense hardship to the purchasers. In my view, since the decree, by which K.Bhimanna was allotted only half a share, has attained finality, any sales made by him in excess of his entitlement would obviously be void and would be of no consequence.
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33. It is also to be kept in mind that the right of a decree holder to enjoy the fruits of his decree would have to be safeguarded, especially when he has obtained the decree after a long and hard battle. The appellant herein would have the legitimate expectation to enjoy half of the properties that he had purchased from the decree holder and any impediments to his enjoyment cannot be permitted at the instance of the defendant who chose to sell the properties during the pendency of the litigation.
34. In fact, learned Senior counsel pointed out that in an appeal arising out of an interlocutory order, the purchasers had contended that one of the purchasers had stated before this Court that he would not claim any equity. In my view, having regard to the fact that the Trial Court had already declared that the sale-deeds executed by K.Bhimanna were not binding on the appellant herein, the purchasers can have no grievance regarding the allotment of half a share to the appellant herein.
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35. However, since the purchasers before this Court have raised an apprehension about the possibility of K.Bhimanna having sold lands in excess of his entitlement of 04 acres out of 08 acres, it would be necessary to direct the Final Decree Court to direct K.Bhimanna to furnish the list of properties sold by him and ensure that the purchasers are allotted plots in the portion earmarked as 'A' in the sketch (supra).
36. If it is found that K.Bhimanna has sold plots in excess of his entitlement, from among the purchasers who have purchased the plots, the last of the purchasers would not be entitled for allotment. In other words, the allotment shall be made by the Trial Court from K.Bhimanna's share in the order of alienation made by K.Bhimanna. The moment the alienations made by the K.Bhimanna exceed his entitlement, the last of the purchasers would stand automatically excluded from being allotted any plot.
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37. It would also be open for the purchasers to indicate the plot that they have purchased in K.Bhimanna's portion i.e., 'A' portion and seek for allotment of that particular land. The Final Decree Court shall also ensure that all the purchasers, to the extent possible, from K.Bhimanna are accommodated.
38. In order to accommodate the purchasers, if the Trial Court has to allot the structures put-up by K.Bhimanna, it would be open to the Trial Court to also allot the structures that are put-up by K.Bhimanna, to the persons who have purchased the properties from him.
39. Lastly, it is made clear that any structure standing in the portion earmarked as 'B' portion shall belong to the plaintiff and the occupants of the said structures would have to necessarily vacate and handover the possession to the appellant.
40. These appeals are accordingly allowed and the impugned order of the Appellate Court is set-aside.
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41. The order of the Trial Court is restored, subject to the directions issued above.
Sd/-
JUDGE SN LIST NO.: 1 SL NO.: 36