Karnataka High Court
Zaira Bee And Ors vs Tayaba Sultana & Ors on 12 September, 2017
Author: S.Sujatha
Bench: S.Sujatha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
WRIT PETITION Nos.201934/2017
& 201985/2017 (GM-CPC)
BETWEEN:
1. Zaira Bee
Widow of Late Abdul Rahim
@ Syed Abdul Rahim
Since dead by her LR's
1. Syed Saifuddin
S/o Late Syed Abdul Rahim
Aged about 50 years
Occ: Service
2. Syed Hasanuddin
S/o Late Syed Abdul Rahim
Aged about 48 years
Occ: Private Service
3. Syed Najamuddin
S/o Late Syed Abdul Rahim
Aged about 43 years
Occ: Private Service
4. Nafees Jehan @ Munni
D/o Late Syed Abdul Rahim
Aged about 45 years
Occ: Household
2
5. Sameena
D/o Late Syed Abdul Rahim
Aged about 37 years
Occ: Household
6. Badrun Jehan
D/o Late Syed Abdul Rahim
Aged about 39 years
Occ: Household
All are residents of
Plot No.23/B, Beside Railway Track
CIEFL Colony, Anand Bagh
Malkajgiri, Hyderabad - 47
...Petitioners
(By Sri J. Augustin, Advocate)
AND:
1. Tayaba Sultana
Widow of Late Abdul Rahim
@ Syed Abdul Rahim
Aged about 64 years
Occ: Household
2. Ayesha Sultana
D/o Late Syed Abdul Rahim
Aged about 37 years
Occ: Household
3. Sayyeda Siddiqua Sultana
D/o Late Syed Abdul Rahim
Aged about 31 years
Occ: Household
Reptd by GPA Holder
Smt. Tayaba Sultana
4. Sayyeda Humeera Siddiqua
D/o Late Syed Abdul Rahim
3
Aged about 29 years
Occ: Household
5. Syed Abdul Quddus
S/o Late Syed Abdul Rahim
Aged about 34 years
Reptd by GPA Holder
Smt. Tayaba Sultana
All are Residing at
H.No.11-6-732
Red Hills, Hyderabad - 4.
6. Md. Sab
S/o Late Sk. Dawal Sab
Aged about 67 years
Occ: Business, (Tenant)
in a portion of premises
No.5-3-23/24, Station Area
Yadgiri - 585 201
7. Shivmurthy Swamy
S/o Bassayya Swamy
Aged about 40 years
Occ: Business, (Tenant)
in a premises
No.5-3-87 (old) 5-3-34 (New)
Station Area
Yadgiri - 585 201
8. Md. Rafeeq
S/o Sri Noor Ali
Aged Major
Occ: Conductor (Tenant)
in a portion of premises
No.5-4-81 (old), 5-4-39 (New)
Station Area
Yadgiri - 585 201
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9. Smt. Puknani
W/o Late Sri Bhimanna
Aged: Major (Tenant) in a portion
of Premises No.5-4-81 (Old)
5-4-39 (New), Station Area
Yadgiri - 585 201
10. Md. Jeelani
S/o Late Yaqoob Sab
Aged Major
Occ: Watch Repair
Tenant in a portion of
H.No.5-3-23
R/at Station Area
Yadgiri - 585 201
...Respondents
(By Sri R.S. Siddapurkar, Advocate for R1 to R5;
Notice to R6 to R10 dispensed with V/o dated: 8.6.2017)
These writ petitions are filed under Articles 226 & 227
of the Constitution of India, praying to issue a writ of
certiorari in the nature by quashing the impugned order
dated: 1.4.2017 passed on I.A.No.4 & 5 in FDP No.1/2013 by
the Sr.Civil Judge at Yadgir under Annexure-E, and
consequently allow the I.A.No.4 & 5 filed by the
petitioners/Judgment Debtors and etc.
These petitions having reserved on 29.08.2017 and
coming on for pronouncement of order this day, the Court
made the following:-
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ORDER
The petitioners have assailed the order dated 01.04.2017 passed on I.A.Nos.4 and 5 in FDP No.1/2013 on the file of Senior Civil Judge at Yadagiri, inter alia seeking for a direction to the learned Civil Judge to transfer the case to the competent Court of law having proper jurisdiction to hear the case on merits providing an opportunity to the petitioners to file their objections.
2. The petitioners are claiming to be the legal representatives of late Zaira Bee W/o Late Abdul Rahim, who are the judgment debtor Nos.2 to 7 in the final decree proceedings/defendant Nos.2 to 7 in O.S.No.12/1997. The said suit O.S.No.12/1997 was decreed on 27.10.2005. Against the same, RFA No.1772/2005 was filed by the petitioners before this Court, which came to be dismissed on 19.01.2012. The petitioners/defendants filed SLP No.11415/2012 before the Hon'ble Apex Court, the same was dismissed. The respondent Nos.1 to 5 herein have filed 6 FDP No.1/2013 along with I.A.1/2013 under Order XXVI Rule 13 of CPC for appointing the Commissioner to divide the immovable suit properties and I.A.2/2013 was filed under Order XXVI Rule 13 read with Section 54 of CPC for appointment of Tahsildar at Shahapur, District Yadagir as Commissioner to divide the suit lands by metes and bounds as per their respective shares and put the respondents in possession of their respective suit properties. The Court below passed an order on I.A.Nos.1 and 2 dismissing the applications, against which W.P.No.206193/2015 was filed and the same was dismissed as withdrawn to workout remedy by filing proper application before the trial Court. Pursuant to which I.A.No.4 was filed seeking permission to amend preliminary decree passed in O.S.No.12/1997, I.A.No.5 was filed to recall orders passed on I.A.Nos.1 and 2 which came to be rejected. Hence, these writ petitions.
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3. The learned counsel Sri J.Augustin appearing for the petitioners contended that the Execution Court erred in holding that the preliminary decree has attained finality and Execution Court cannot go behind the preliminary decree. It is the contention of the learned counsel that in order to avoid multiplicity of the proceedings, the preliminary decree can be amended and petitioners have to be permitted to file an amended petition for the inclusion of left out property if any. It was further contended that no sufficient opportunity was provided to the petitioners to establish their case. In furtherance, the learned counsel for the petitioners placed reliance on the following judgments:
1. Srihari (Dead) through LR. Smt. Ch.Niveditha Reddy vs. Syed Maqdoom Shah & Ors. (Civil Appeal Nos.2352-2354/2008);
2. Smt. Janaki vs. Smt. Lalitha & Others (W.P.No.44710/2012);8
3. Prema vs Nanje Gowda and Others (Civil Appeal No.2481/2005)
4. The learned counsel Sri R.S. Siddapurkar appearing for respondent Nos.1 to 5 justifying the impugned orders submitted that the petitioner had filed W.P.No.206193/2015 challenging the orders passed on I.A.Nos.1 and 2 in FDP No.1/2013. The said petition was dismissed as withdrawn with liberty to the petitioners to work out their remedy by filing proper application before the trial Court. Again on the same ground, the petitioners have filed I.As.4 and 5 to amend the preliminary decree, which is not sustainable in law. In furtherance, the learned counsel for the respondents placed reliance on the following judgments:
1) Sri Channaveerappa Gowda vs Sri Renukappa Gowda and Others [2014(3) KCCR 2214];
2) Smt. Eeramma vs. Sri T.G.Yadava (W.P.No.46607/2012) 9
5. Heard the learned counsel for the parties and perused the material on record.
6. I.A.No.4 was filed for permission to amend the preliminary decree passed in O.S.No.12/1997. I.A.No.5 was filed to recall the orders passed on I.A.Nos.1 and 2 in FDP No.1/2013. Indisputably, the orders passed on I.As.1 and 2 in FDP No.1/2013, was challenged before this Court in W.P.No.206193/2015. The said writ petition was dismissed as withdrawn. Again filing I.A.No.5 to recall the orders in I.A.Nos.1 and 2 is wholly untenable.
7. It is beneficial to refer to judgment cited at the bar as regards the amendment sought in the preliminary decree. In the case of Srihari (supra), the Hon'ble Apex Court held that in terms of sub-rule (2) of Rule 18 of Order XX of the Code, in the preliminary decree not only the right of the plaintiff but rights and interests of others can also be declared. Referring to the judgment of the Hon'ble Apex Court in U.P.SRTC vs. Imtiaz Hussain (2006) 1 SCC 380 10 it was reiterated that the basis of provision of Section 152 of the Code is found on the maxim 'actus curiae neminem gravabit' i.e. an act of Court shall prejudice no man. As such an unintentional mistake of the Court which may prejudice the cause of any party must be rectified.
However, this does not mean that the Court is allowed to go into the merits of the case to alter or add to the terms of the original decree or to give a finding which does not exist in the body of the judgment sought to be corrected and accordingly dismissed the appeals.
8. In the case of Prema (supra), the question that arose for consideration before the Hon'ble Apex Court was whether the appellant, who failed in her challenge to the preliminary decree passed in a suit for partition filed by respondent No.1 can seek enhancement of her share in the joint family property in the final decree proceedings in terms of Section 6A inserted in the Hindu Succession Act, 1956 by the Hindu Succession (Karnatka Amendment) Act, 11 1990. It was held that, such an amendment to the preliminary decree is permissible.
9. In the case of Smt. Janaki (supra), the co- ordinate bench of this Court has held that inclusion of left out properties in the final decree proceedings is justified and proper. But, the earlier judgments of this Court was not noticed by this Court.
10. In the case of Sri Channaveerappa Gowda (supra), it is observed that a property which was not the subject matter of the suit, at the time of passing of preliminary decree cannot be included, amending the preliminary decree. Variation of shares already declared in the property which is the subject matter of the suit is totally different from varying the subject matter of the suit. It is also held that the reason being that what is the share to which a party to a suit is entitled to in law is purely a question of law, whereas a share in a property is dependent on the nature of the property which is purely a question of 12 fact, which is to be decided on the facts and circumstances of the case based on the evidence adduced. Therefore, once a preliminary decree is passed in respect of the subject matter of the suit, question of including or adding a property to the subject matter of the suit subsequently and claiming a share in respect of the property so included or added is not permissible in law.
11. Similarly in the case of Smt. Eeramma (supra), the same view is reiterated by this Court.
12. It is the contention of the petitioners that in O.S.No.12/1997 all movable and immovable properties were not included and also no relief was sought in the suit regarding service and pensionary benefits to petitioner No.1, since she is the 1st wife and legally entitled to the benefits of her husband, who was a railway employee. Respondent No.1 being the 2nd wife is not entitled to the service benefits. Hence, inclusion of the left out properties including the service benefits of the deceased husband in 13 the preliminary decree by amending the same is necessary. The said contention cannot be countenanced for the reason that in a partition suit there can be more than one preliminary decree with respect to the shares. The Court has jurisdiction to decide all disputes that may arise after preliminary decree due to death of some of the parties. A preliminary decree determines the rights and interest of the parties. However, the said principle of passing of more than one preliminary decree cannot be construed to be extended to include the property which was not the subject matter of original suit. In the factual matrix of the case, more particularly, when O.S.No.12/1997 has reached upto Hon'ble Apex Court and the decree is confirmed, no new properties can be added to the subject matter of the suit, in preliminary decree proceedings.
13. The judgment of this Court in the case of Sri Channaveerappa Gowda, (Supra) and Smt. Eeramma (Supra) are squarely applicable to the facts of the present 14 case. These judgments were not brought to the notice of this Court while rendering judgment in Janaki's case (Supra). Hence, I.A.Nos.4 and 5 are liable to be dismissed. No perversity or illegality is found in the order impugned.
Writ petitions stand dismissed.
Sd/-
JUDGE sdu