Kerala High Court
Bhaskara vs K.Rathnakaran on 1 October, 2012
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
MONDAY, THE 1ST DAY OF OCTOBER 2012/9TH ASWINA 1934
Ex.FA.No. 41 of 2005 ( )
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EA.NO.67/2005 IN EP.NO.68/2004 IN OS.NO.90/1984 of SUB COURT, KASARAGOD
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APPELLANT/PETITIONER/9TH RESPONDENT:
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BHASKARA, S/O.LATE NARAYANAN,
R/AT C.P.C.R.I., KADAPPURAM, KODLU VILLAGE,
KASARAGOD TALUK AND DISTRICT.
BY ADV. SRI.SURESH KUMAR KODOTH
RESPONDENT(S)/PETITIONER & RESPONDENTS 1 TO 8:
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1. K.RATHNAKARAN, S/O.SUBRAYA,
R/AT KADAPPARA, ERIYA IN KUDLU VILLAGE,
KASARAGOD TALUK AND DISTRICT, P.O.KUDLU.
2. SMT. VEDAVATHI,W/O.KRISHNA PANDIT,
R/AT ARJAL P.O., MOGRAL PUTTUR, FRIYAL HOUSE,
PUTTUR VILLAGE, P.O.KUDLU, KASARAGOD TALUK.
3. SUVASINI, W/O.K.PRABHAKARA,
PANDIT HOUSE, BABBERKKATTY, P.O.PERUMANNOOR,
MANGALORE DISTRICT, KARNATAKA.
4. ASHOKA, S/O.LATE KRISHNA PANDIT,
R/AT ARJAL P.O., MOGRAL PUTTUR, FRIYAL HOUSE,
PUTTUR VILLAGE, P.O.KUDLU, KASARAGOD TALUK.
5. THILAKAVATHI, D/O.LATE KRISHNA PANDIT,
KADAPRA HOUSE, ARIAL HOUSE, KUDLU VILLAGE,
P.O.KUDLU, KASARAGOD TALUK.
6. LATAVATHI, W/O.K.SEETHARAM PANDIT,
P.O.KAVAN, PUTTUR TALUK, KARNATAKA STATE.
7. THIRUPATHI, S/O.LATE KRISHNA PANDIT,
ARJAL HOUSE, PUTTUR VILLAGE, P.O.KUDLU,
KASARAGOD TALUK.
sts 2/-
-2-
EX.F.A.NO.41/2005
8. ANASOOYA, D/O.LATE KRISHNA PANDIT,
R/AT ARIAL P.O., MOGRAL PUTTUR, FRIYAL HOUSE,
PUTTUR VILLAGE, P.O.KUDLU, KASARAGOD TALUK.
9. INDIRA, D/O.LATE KRISHNA PANDIT,
ARJAL HOUSE, PUTTUR VILLAGE, P.O.KUDLU
KASARAGOD TALUK.
R1 BY ADV. SRI.S.VINOD BHAT
THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 01-10-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sts
P.N.RAVINDRAN, J.
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Ex.F.A.No.41 of 2005
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Dated this the 1st day of October , 2012
J U D G M E N T
The ninth defendant in O.S.No.90 of 1984 on the file the Court of the Subordinate Judge of Kasaragod is the appellant in this appeal. The first respondent is the plaintiff and respondents 2 to 9 are defendants 2 to 8 therein. The brief facts of the case are as follows:
2. The first respondent herein instituted O.S.No.90 of 1984 in the Court of the Subordinate Judge of Kasaragod for partition and separate possession of four items of immovable properties described in schedule A to the plaint. Items 1 and 2 are situated in Puttur Village, Kasaragod Taluk and items 3 and 4 are situated in Kudlu Village, Kasaragod Taluk. It was stated in the plaint that the plaint A schedule property originally belonged to late Subraya to whom it was allotted as per Ext.A1 registered partition deed dated 19.1.1913, that Subraya had six children namely the first plaintiff (K.Ratnakara), Kunharu, Krishna Pundit, Kalyani, Devaki (the eighth plaintiff) and Parameswari and on his death, the plaint A schedule property devolved on his six children. It was stated on the death of Kunharu her rights devolved on plaintiffs 2 and 3 ( K.Sudhakara and K Subraya) that on the death of Krishna Pundit his rights devolved on defendants 1 to 8 who are his widow and children, that on the death of Kalyani her rights devolved Ex.F.A.No.41 of 2005 2 on plaintiffs 4 to 7 and on the death of Parameswari her rights devolved on the ninth defendant, the appellant in the instant appeal. It was contended that as the legal representatives of late Subraya, the first plaintiff is entitled to 1/6th share in the plaint A schedule property, plaintiffs 2 and 3 are together entitled to 1/6th share, plaintiffs 4 to 7 are together entitled to 1/6th share, the eighth plaintiff is entitled to 1/6th share, defendants 1 to 8 are together entitled to 1/6th share and the ninth defendant is entitled to 1/6th share.
3. The first defendant filed a written statement resisting the suit.
He contended that on the death of Subraya his assets devolved on his male children namely the first plaintiff and late Krishna Pundit and on the death of Krishna Pundit his rights devolved on defendants 1 to 8. The first defendant contended that Kalyani, Parameswari, Kunharu and Devaki (daughters of Subraya) had no right in the property and therefore plaintiffs 2 to 8 and the 9th defendant have no right over the suit property, they having been given in marriage during the lifetime of Subraya. The first defendant also contended that neither the plaintiffs nor the ninth defendant had contributed anything towards the cost of improvements in the suit property and that the ninth defendant had constructed a house in the plaint A schedule property not because he had any right in the property, but because he was married to the Ex.F.A.No.41 of 2005 3 fourth defendant, daughter of late K.Subraya. He also raised various other contentions. Defendants 2, 4 and 6 to 8 filed a memo adopting the contentions raised by the first defendant in her written statement. It is relevant in this context to note that the fourth defendant Smt.Thilakavathi is none other than the wife of the appellant. Defendants 3, 5 and 9 remained absent and were set ex-parte.
4. The trial court after considering the rival contentions held that on the death of Subraya which took place before the commencement of the Hindu Succession Act, 1956, his rights devolved only on the first plaintiff and defendants 1 to 8. A preliminarily decree was accordingly passed on 30.9.1987 directing division of the plaint A schedule property into two equal shares and allotment of one such share to the first plaintiff. Defendants 1 to 8 were held entitled to the remaining half share. The first plaintiff was also held entitled to future mesne profits from defendants 1 to 8, the quantum of which was relegated to be decided in the final decree. The trial court also held that while allotting the properties, item 1 shall as far as possible be allotted to the share of defendants 1 to 8 without valuing the improvements effected by late Krishna Pundit. Aggrieved by the preliminary decree for partition passed on 30.9.1987, defendants 1 to 8 filed A.S.No.66 of 1988 in this Court. The challenge was limited to the reservation of Ex.F.A.No.41 of 2005 4 item No.1 in favour of defendants 1 to 8 without granting them the value of improvements effected by deceased Krishna Pundit. By judgment delivered on 15.6.1988, the Division Bench of this Court dismissed that appeal.
5. The first plaintiff had in the meanwhile filed I.A.No.1338 of 1987 for the passing of a final decree. On that application a final decree was passed on 23.8.1988. Aggrieved thereby defendants 1, 3, 4, 5, 6 and 7 filed A.S No.357 of 1994 in this Court joining only the first plaintiff, the second defendant and the eighth defendant as respondents. In the memorandum of appeal it was specifically stated that since plaintiffs 2 to 8 and the ninth defendant have no right over the suit properties, they are not made parties to the appeal. A.S.No.357 of 1994 was finally heard and dismissed by a learned single Judge of this Court by judgment delivered on 8.6.2004. After A.S.No.354 of 1994 was dismissed, the first plaintiff filed E.P.No.68 of 2004 to execute the final decree for partition and for delivery of the properties set apart to his share. On receipt of notice in the execution petition, the appellant herein entered appearance and filed a counter affidavit. He contended that he was not served with notice in the suit and that to the best of his knowledge he was not made a party to the suit or any subsequent proceedings mentioned in the execution Ex.F.A.No.41 of 2005 5 petition. He also contended that the decree is a nullity as far as he is concerned, that his mother late Parameswari was a cultivating tenant in respect of 18 cents of land situated in resurvey No. 47/1 of Kudlu Village, Kasaragod Taluk, more particularly described in X schedule to the counter statement and on her death, the said property devolved on him. He contended that he is residing in the building in the X schedule property with his family, that he has an independent right as a cultivating tenant in the property and therefore, he is not liable to surrender possession of the X schedule property. The execution court overruled the said contention and ordered delivery of the properties on 3.6.2005. The Amin deputed to effect delivery of the properties submitted a report dated 6.6.2005 to the effect that items 1, 2 and 4 were delivered over to the respective sharers but item 3 could not be delivered over to the concerned share holder (the first plaintiff) on account of the obstruction raised by the appellant herein.
6. The first plaintiff (the petitioner in E.P.No.68 of 2004) thereupon filed E.A.No.54 of 2005 under order XXI rule 97 of the Code of Civil Procedure for removal of the obstruction raised by the ninth respondent and to deliver over item No.3 to him. The appellant had in the meanwhile filed E.A.No.67 of 2005 under rules 97, 98 and 101 of the Code of Civil Procedure wherein he sought an adjudication of his Ex.F.A.No.41 of 2005 6 right, title and interest over 18 cents of land described in X schedule to the said application and a declaration that the decree holder has no right over the said property or to obtain delivery thereof in execution of the decree in O.S.No.90 of 1984. In that application, he contended that he was not aware of the institution of the suit and was not served with notice therein. He also contended that to the best of his knowledge he was not a party to the suit or in any subsequent proceedings mentioned in the execution petition, that the first plaintiff obtained the decree by practising fraud, that the first plaintiff or his predecessor-in-interest had no title to the X schedule property and they were not in possession thereof. He contended that the decree is a nullity as far as the X schedule property is concerned, that the property originally belonged in jenm to Kudlu Shanbhoge family, that his mother late Parameswari (daughter of Subraya) had obtained the property on oral lease in 1958 with obligation to pay Rs.5 per year as rent and that on his mother's death, he inherited the tenancy right. He contended that his mother was a cultivating tenant in respect of the property and on her death the said right devolved on him. He also contended that he has constructed a new house in the land and he is residing therein with his family. On these grounds he objected to the delivery of the property and sought a declaration that the decree Ex.F.A.No.41 of 2005 7 holder has no right over the property or to obtain delivery thereof.
7. The first plaintiff flied objections to the application contending that the claim is false and frivolous and is not maintainable. He also inter-alia contended that the appellant is estopped from raising a plea contrary to the findings in the suit and that his claim is barred by constructive resjudicata. In the execution court, the appellant was examined as PW-1 and Exts.A1 to A12 were marked. The execution court on an analysis of the pleadings and the materials on record held that the appellant's claim that he had no notice in the suit or other proceedings is not tenable in view of the fact that in the final decree application notice was served on him and that he has failed to prove that the decree was fraudulently obtained. The execution court also held that as he was served with notice in the final decree proceedings, he ought to have raised the plea now put forward at least at that point of time and as it was not done, the claim made by him in the instant application is barred by constructive resjudicata. The application was accordingly dismissed. Hence this appeal.
8. I heard Sri.Suresh Kumar Kodoth, learned counsel appearing for the appellant and Sri.S.Vinod Bhatt learned counsel appearing for the first respondent. I have also gone through the pleadings and the materials on record. Though the other respondents have been served, Ex.F.A.No.41 of 2005 8 they have not so far entered appearance. Shorn of details, the claim made by the appellant in the execution court was that his mother late Parameswari had a tenancy right over 18 cents of land forming part of plaint A schedule item 3, she having obtained it on oral lease in the year 1958. He contended that on her death in the year 1965 her right as a cultivating tenant devolved on him, her sole legal heir. The plaintiffs contended that the appellant herein (9th defendant) was entitled to 1/5th share of the plaint A schedule property as the legal heir of late Parameswari (daughter of Subraya to whom the property admittedly belonged). The first defendant, the grand daughter of Subraya (daughter of Subrayya's son Krishna Bhat), contended that only the male children of Subraya are entitled to a share over the suit property. She contended that therefore, the first plaintiff and defendants 1 to 8 alone are entitled to shares in the suit property. Defendants 2, 4, 6 and 8 filed a memo adopting the said contention. It is relevant in this context to note that the fourth defendant in the suit (Smt.Thilakavathi) is none other than the appellant's wife. This fact was set out by the first defendant in the written statement filed by him which, as stated earlier, was adopted by defendants 2, 4, 6 and 8. That apart, the appellant had when examined as PW-1 in the execution court admitted the fact that he is married to the fourth respondent in Ex.F.A.No.41 of 2005 9 E.P.No.68 of 2004 and that he is residing with her. He had also admitted the fact that his wife is a party to the suit. From the materials on record it is evident that the plea of the appellant that he had no notice in the suit and therefore, the decree and judgment therein do not bind him cannot in my opinion be accepted. If as contended by the appellant his mother was a cultivating tenant in respect of 18 cents of land forming part of plaint A schedule item 3, she having taken the property on oral lease from the jenmi in the year 1958, he should have put forward that plea in the suit. In any case, the appellant ought to have raised such a plea at least in the final decree proceedings and in any case before the final decree was passed. It is relevant in this context to note that the appellant has no specific case that no notice was served on him in the final decree proceedings. The report submitted by the Advocate Commissioner in the final decree proceedings discloses that when the Advocate Commissioner inspected the suit properties on 25.9.1988 and 23.10.1988, the appellant was present along with the first plaintiff, the first defendant, the sixth defendant, the Village Assistant and the Villageman of Kudlu village. The report dated 2.8.1988 submitted by the Advocate Commissioner was accepted and a final decree was passed. In such circumstances, the claim made by the appellant that he was unaware of the suit and Ex.F.A.No.41 of 2005 10 the decree passed therein, cannot be accepted. The court below was therefore perfectly right in holding that he is barred by principles of constructive resjudicata from raising the plea that he is a cultivating tenant in respect of 18 cents forming part of plaint A schedule item 3.
For the reasons stated above, I hold that there is no merit in the instant appeal. The appeal fails and is accordingly dismissed. No costs.
Sd/-
P.N.RAVINDRAN, JUDGE.
Rkc // true copy// PA to Judge