Karnataka High Court
Smt Rukkubai W/O Alte Balaji Singhy ... vs Anantharam Singh S/O Hanuman Singh Dead ... on 9 June, 2015
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JUNE 2015
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
RSA.CROSS OBJECTION No.1/2006
BETWEEN:
SMT RUKKUBAI
W/O LATE BALAJI SINGHY
SINCE DEAD BY HER LRS.
SMT SAROJA BAI
D/O LATE BALAJI SINGH
AGED ABOUT 55 YEARS,
SEEGANAHALLI VILLAGE,
KANMANGALA POST,
HOSKOTE TQ.,
BANGALORE DISTRICT.
... CROSS OBJECTOR
(By Sri: M VISHWAJITH RAI, ADV FOR
SRI. K.N. JAYAPRAKASH, ADV.)
AND
ANANTHARAM SINGH
S/O HANUMAN SINGH
DEAD BY LR's
1. SRI RAJA SINGH,
S/O ANANTHARAM SINGH
AGED ABOUT 47 YEARS
R/AT NO.1451, 2ND CROSS,
VIJAYANAGAR,
2
BANGARPET,
KOLAR DISTRICT-563101.
2. SRI BALAJI SINGH
S/O ANANTHARAM SINGH
AGED ABOUT 45 YEARS
HOTEL OWNER,
R/AT KUDAINUR VILLAGE,
MALUR TALUK, KOLAR DISTRICT-563101
3. SRI GOPAL SINGH
S/O ANANTHARAM SINGH
AGED ABOUT 42 YEARS
R/AT HANASONAHALLI VILLAGE,
KASABA HOBLI,
BANGARPET TALUK,
KOLAR DISTRICT-563101.
4. SMT YESHODA BAI
W/O RAMSINGH
D/O ANANTHARAM SINGH
AGED ABOUT 40 YEARS
R/AT HUNASANAHALLI VILLAGE,
KASABA HOBLI,
BANGARPET TQ., KOLAR DISTRICT-563101.
5. SMT PARVATHI BAI
W/O JAGATH SINGH
D/O ANANTHARAM SINGH,
AGED ABOUT 37 YEARS
R/AT KURUBARAPET,
HOSAKOTE,
BANGALORE DISTRICT-560005.
6. SMT SUNDARA BAI
W/O RAMSINGH @ K MUNISINGH
AGED ABOUT 35 YEARS
R/AT KRISHNARAJAPURAM,
ACHAMANGALA POST,
3
KRISHNAGIRI TALUK,
DHARMAPURI DISTRICT, TAMILNADU-540001.
7. SRI POORNA SINGH
S/O ANANTHRAJ SINGH
AGED ABOUT 59 YEARS,
R/AT HUNASANAHALLI VILLAGE,
KASABA HOBLI,
BANGARPET TALUK,
KOLAR DISTRICT-563101.
8. SMT SAKKUBAI
W/O POORNASINGH
AGED ABOUT 55 YEARS,
R/AT HUNASANAHALLI VILLAGE,
KASABA HOBLI,
BANGARPET TALUK,
KOLAR DISTRICT-563101.
... RESPONDENTS
(By Sri: A GOPALAIAH, ADV. FOR R1-4 & 6
G.S.V. ASSTS FOR R7 & 8 )
RSA.CROB IN RSA 2563/05 FILED U/O 41 R 22 OF
CPC AGAINST THE JUDGEMENT & DECREE DTD: 29.08.05
PASSED IN R.A.NO. 47/2001 ON THE FILE OF THE CIVIL
JUDGE (SR.DN) KGF ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGEMENT AND DECREE DTD:
7.3.2001 PASSED IN OS. 200/1985 ON THE FILE OF THE I
ADDL. CIVIL JUDGE (JR.DN) K.G.F, ONLY IN SO FAR AS
DISMISSING THE SUIT WITH REGARD TO THE MESNE
PROFITS.
4
THIS CROSS OBJECTION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
JUDGMENT
RSA.2563/05 has arisen out of the dismissal of O.S.200/85 filed for the relief of partition and separate possession and reversal of the same in an appeal filed under Section 96, C.P.C. in R.A.47/01 which was pending on the file of Senior Civil Judge, KGF. Being aggrieved by the divergent judgment, RSA.2563/05 had been filed by the 4th defendant of O.S.200/85. The said appeal has been dismissed for non-prosecution.
2. During the pendency of the appeal, the plaintiff- cross objector herein has chosen to file this Cross Objections under Order XLI Rule 22, C.P.C. since the first appellate court has not granted the relief of mesne profits sought for in spite of allowing the appeal and consequently dismissing the suit O.S.200/85. 5
3. The Cross Objections has been admitted to consider the following substantial question of law framed on 8.6.2015:
"Whether the First Appellate Court has committed serious illegality in not directing the defendants to render the accounts under Order 20 Rule 18 of CPC."
4. Heard the learned counsel for the cross objector. Respondent's counsel is absent.
5. As could be seen from the records, O.S.200/85 was filed before the Civil Judge (Junior Divn.), KGF, by this cross objector as the lone plaintiff seeking the relief of partition and separate possession in respect of four items of immovable properties. The said suit was dismissed after contest, as against which an appeal in R.A.47/01 was filed before the court of Civil Judge (Senior Divn.). The said appeal has been allowed and consequently the suit has been decreed as prayed for granting 1/3rd share in the schedule properties. 6
6. In the suit for partition and separate possession, the plaintiff had requested the court to award mesne profits from the date of suit till possession, as contemplated under Order XX Rule 12, C.P.C. The first appellate court has passed the following order in R.A.47/01:
ORDER Appeal is allowed. The judgment and decree passed in O.S.No.200/85 dated 7.3.2001 is set aside. The suit of the plaintiff is decreed. It is hereby declared that the LR of the plaintiff has go 1/3rd share in the suit schedule properties. The LR of the plaintiff is entitled to partition and separate possession of her 1/3rd share in the suit schedule properties. Suit with regard to the mesne profits is dismissed. Parties to bear their own costs. Draw preliminary decree for partition in the above terms. Send back the Trial Court records forth with.
The learned judge of the appellate court has not assigned any reason whatsoever as to why the claim for mesne profits is rejected.7
7. In a suit for partition and separate possession, awarding mesne profits under Order XX Rule12, C.P.C. does not arise since a member of the joint family who is in actual possession of the same cannot be construed to be a person in unlawful possession, but such possession will be construed as joint and constructive possession. Therefore the question of awarding mesne profits does not arise. In a suit for partition and separate possession, the only relief that can be granted by the court is to direct the defendants to render accounts as contemplated under Order XX Rule 18, C.P.C. for which a separate enquiry is to be held.
8. Order XX Rule 18, C.P.C. reads thus:
18. Decree in suit for partition of property or separate possession of a share therein.- Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,-
(1) If and insofar as the decree relate to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition 8 or separation to be made by the Collector, or any gazetted (2) If and insofar as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.
In spite of a specific claim being made by the plaintiff for mesne profits, the court should have at least passed an order directing the defendants to render accounts as contemplated under Rule 18 of Order XX, C.P.C. The said relief is consistent with the main relief of partition and separate possession. The first appellate court has virtually abdicated its responsibility of directing the defendants to render accounts. This is a serious illegality committed by the trial court. Accordingly the substantial question of law will have to be answered in the affirmative and consequently the cross objections will have to be allowed.
9. In the result, the following order is passed: 9
ORDER Cross Objections No.1/06 is allowed, directing the respondents to render accounts in terms of Rule 18 of Order XX, C.P.C. from the date of filing the suit till demarcating a share and handing over to the plaintiff by means of a separate enquiry. In view of the relationship between the parties, there is no order as to costs.
Sd/-
JUDGE vgh*