Karnataka High Court
Venkatasubramanyam @ Venkatasubbaiah vs Lakshmidevamma on 8 December, 2023
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NC: 2023:KHC:44979
RSA No. 1725 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1725 OF 2007 (PAR)
BETWEEN:
1. VENKATASUBRAMANYAM @
VENKATASUBBAIAH
S/O SUBB BHAT,
DEAD BY HIS LR'S
A. LAKSHMIDEVAMMA
W/O LATE P. VENKATASUBRAMANYAM
MAJOR
R/AT CHAKAVELU,
CHELUR ROAD
BAGEPALLI TALUK - 563 101
B. MANJULAMMA
D/O P VENKATASUBRAMANYAM
W/O LATE SURYANARAYANA SHASTRY
Digitally signed by BRAHMINS STREET, HOSKOTE,
SUNITHA BANGALORE RURAL DISTRICT - 560 050
GANGARAJU
Location: High
Court of Karnataka C. SHARADHAMMA
D/O LATE P VENKATASUBRAMANYAM
W/O ASHWATHAN,
BUDIBANDE, KOLAR DISTRICT - 563 101
D. P S NAGARAJ
S/O LATE P VENKATASUBRAMANYAM
AGED ABOUT 50 YEARS
E. BALASUBRAMANYAM
S/O LATE P VENKATASUBRAMANYAM
AGED ABOUT 48 YEARS
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NC: 2023:KHC:44979
RSA No. 1725 of 2007
F. RAVI KUMAR
S/O LATE P VENKATASUBRAMANYAM
AGED ABOUT 42 YEARS
G. P S RAMA MURTHY
S/O LATE P VENKATASUBRAMANYAM
AGED ABOUT 30 YEARS
THE LR'S OF THE APPELLANT (D) TO (G) ARE ALL
RESIDING AT CHAKAVELU
CHELUR HOBLI,
BAGEPALLI TALUK
KOLAR DISTRICT - 563 101
...APPELLANTS
(BY SRI. K.V. RAMESH KUMAR, ADVOCATE)
AND:
1. LAKSHMIDEVAMMA
DEAD BY LR'S
1A. N SUBRAMANYA
S/O LAKSHMIDEVAMMA
1B. SUBBALAKSHMI
D/O LAKSHMIDEVAMMA
1C. SURYAPRAKASH
S/O LAKSHMIDEVAMMA
1D. PARVATHI
D/O LAKSHMIDEVAMMA
RESPONDENTS 1(A-D) ARE
R/AT NO.142/24, 5TH MAIN
KUDLI SHRUNGERI MATA,
OPP: DEVANATHACHAR STREET
CHAMARAJPET,
BANGALORE - 560 050
2. SHIVARAMAPPA
DEAD BY LRS
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NC: 2023:KHC:44979
RSA No. 1725 of 2007
2A. RAMALAKSHMAMMA
W/O LATE BAHINI SHIVARAMAPPA
AGED ABOUT 63 YEARS
2B. ANJANEYA REDDY
S/O LATE BAHINI SHIVARAMAPPA
AGED ABOUT 35 YEARS
2C. MUNIYAMMA
W/O VENKATARAMAPPA
D/O LATE BAHINI SHIVARAMAPPA
RESPONDENTS 2(A-C) ARE
R/AT ANNAIAHGARI BYAPPA
VONTARIVAMDLAPALLI,
PATHAPALYA HOBLI
BAGEPALLI TALUK,
KOLAR DISTRICT - 563 101
2D. MANJUNATHA
S/O LATE BAHINI SHIVARAMAPPA
AGED ABOUT 29 YEARS
2E. MANOHAR
S/O LATE BAHINI SHIVARAMAPPA
AGED ABOUT 27 YEARS
RESPONDENT 2(D) AND 2(E) ARE
R/AT MARAVAPALLI VILLAGE
CHAKAVELU MANDAL,
CHELUR HOBLI
BAGEPALLI TALUK
KOLAR DISTRICT-563 101
3. NADAPI VENKATARAYAPPA
S/O VEMANNA
MARAVAPALLI VILLAGE
CHAKAVELU MANDAL
CHELUR HOBLI
BAGEPALLI TALUK
KOLAR DISTRICT- 563 101
...RESPONDENTS
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NC: 2023:KHC:44979
RSA No. 1725 of 2007
(BY SRI. HARSHA DESAI, ADVOCATE FOR R2(A,B,D &E)
& PROPOSED R3(A)
R2(C) SERVED
V/O DATED 04.12.12 NOTICE TO R1(A TO D) ARE H/S)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 21.12.06 PASSED IN R.A.NO
1/97 ON THE FILE OF THE ADDL. SESSIONS JUDGE & P.O.
FTC.,-II C/c OF I ADDL. DISTRICT & SESSIONS JUDGE, KOLAR,
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGEMENT AND DECREE DTD 13.9.96 PASSED IN OS 40/92
ON THE FILE OF THE CIVIL JUDGE & JMFC., CHICKBALLAPUR
DECREEING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellants challenging the judgment and decree dated 21.12.2006, passed in R.A.No.1/1997 by the I Additional District Judge, Kolar, confirming the judgment and preliminary decree dated 13.09.1996 passed in O.S.No.40/1992 by the Civil Judge and JMFC, Chikkaballapur.
2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellants are the legal representatives of the deceased -5- NC: 2023:KHC:44979 RSA No. 1725 of 2007 defendant , respondent No.1 are the legal representatives of plaintiff No.1 and respondent No.2 are the legal representatives of plaintiff No.2. respondent No.3 is the plaintiff No.3.
3. The brief facts leading rise to filing of this appeal are as under:
Plaintiffs filed a suit for declaration of title in respect of suit item Nos.1 and 2 of schedule properties and consequential permanent injunction restraining the defendants from interfering in the suit schedule properties and sought for partition and separate possession of suit schedule item No.3. The plaintiff No.1 and defendants are the brother and sister. The suit properties were originally belong to the one Lakshminarasamma and she had purchased the said land from one Lakshmidevamma on 06.02.1937. The vendor was in possession of the lands during her life time. Lakshminarasamma gifted the properties i.e., item Nos.1 and 2 of the plaint schedule properties to plaintiff No.1 under a registered gift deed -6- NC: 2023:KHC:44979 RSA No. 1725 of 2007 dated 11.05.1945. The said deed was executed by Lakshminarasamma, both on her own behalf and on behalf of the defendant, as the defendant was minor on the date of execution of registered gift deed and the plaintiff No.1 is in possession and enjoyment of the same. On 14.4.1955, the defendant and his mother Lakshminarasamma confirmed the gift by executing another registered deed in favour of plaintiff No.1. While doing so, taking undue advantage of the fact that the plaintiff No.1 being a woman, the defendant has got introduced a condition against alienation by plaintiff No.1 and such condition is void and not binding on the plaintiff No.1. The defendant and his mother got divided on 14.04.1955. The mother took item No.3 and gave the remaining properties to the defendant. Since mother died intestate, plaintiff No.1 and the defendant are entitled to half share each therein item No.3 of the suit schedule property. The plaintiff No.1 sold item No.1 to the plaintiff No.3 on 23.12.1986 and she also sold item No.2 in favour of plaintiff No.2 and they are impleaded as plaintiff Nos.2 and 3. The plaintiff Nos.2 and -7- NC: 2023:KHC:44979 RSA No. 1725 of 2007 3 sought for relief of declaration of title. Hence, prayed to allow the suit.
4. Defendant filed written statement admitting the relationship between him and plaintiff No.1 and also admits that suit schedule properties are the ancestral assets of the defendant. The defendant's mother Lakshminarasamma and her alleged vendor had no title to the properties. The gift made by Lakshminarasamma in respect of item Nos.1 and 2 under registered gift deed dated 11.05.1945 in favour of plaintiff No.1 was void. It is contended that there was a panchayath in which it was settled that the defendant should rectify the gift deed giving only life interest to plaintiff No.1 and reversion should vest in the defendant. In pursuant to the confirmation deed dated 14.04.1955 the mother has got a limited interest and she has no right to execute gift deed in favour of plaintiff No.1. The said gift deed is a collusive.
The defendant is in possession and enjoyment of the suit schedule properties for more than 12 years from the date -8- NC: 2023:KHC:44979 RSA No. 1725 of 2007 of gift deed dated 11.05.1945 upto 01.01.1964 her right was extinguished by the law of prescription. The defendant perfected his title by adverse possession. It is denied that Lakshminaramma was living with plaintiff No.1. The plaintiff No.1 had no title to execute registered sale deeds in favour of plaintiff Nos.2 and 3. Hence, prayed to dismiss the suit.
5. The Trial Court, on the basis of the above said pleadings, framed the following issues:
1. Whether plaintiffs prove that Laxminarasamma acquired title to and she was in possession till her life of the suit properties as alleged plaint para-2?
2. Whether plaintiffs further prove that Laxminarasamma had rights to gift and gifted suit properties in favour of plaintiff-1 under the gift deed dated 11.5.1945?
3. Whether defendant proves that suit properties were his ancestral properties?
4. Whether defendant further proves that gift deed dated 11.05.1945 is illegal, void and not binding on him?
5. Whether plaintiffs prove that plaintiff-1 had rights to alienate suit items 1 and 2 in favour -9- NC: 2023:KHC:44979 RSA No. 1725 of 2007 of plaintiffs 3 and 2 respectively and that said sale is binding on defendant?
6. Whether defendant proves that plaintiff No.1 had only the life interest in suit properties?
7. Whether defendant proves that the document dated 14.4.1955 is void, hit by fraud any unenforceable?
8. Whether plaintiffs prove that they were in actual possession and enjoyment of respective suit properties on the date of suit?
9. Whether defendant proves that plaintiffs' suit is barred by time and plaintiff's rights in suit properties are extinguished?
10. Whether plaintiff No.1 proves that the defendant has no rights in the well, pumpset and pumphouse situated in suit item-3?
11. Whether there is cause of action for the suit?
12. Whether valuation of suit properties is correct?
13. Whether Court fee paid is sufficient?
14. Whether plaintiffs are entitled for declaration of title as prayed for?
15. What order and what decree ?
6. In order to prove the case of the plaintiffs, the plaintiff No.1 was examined as PW-1 and got marked 32
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NC: 2023:KHC:44979 RSA No. 1725 of 2007 documents as Ex.P.1 to P32. Defendant examined as DW- 1 and no documents are marked. The trial Court on assessment of oral and documentary evidence of the parties, answered issue Nos.1, 2, 5, 8, 10, 11 and 14 in the affirmative. Issue No.3, 4, 6, 7 and 9 in the negative. Consequently, decreed the suit with costs. It is ordered and declared that the plaintiff Nos.2 and 3 are declared as owners of item No.2 and 1 of plaint schedule respectively. It is further declared that the plaintiff No.1 has half share in item No.3 of the plaint schedule and that plaintiff No.1 is the absolute owner of pumpset and pump-room and by way of permanent injunction restraining the defendant from interfering with the possession and enjoyment of plaintiff Nos.2 and 3 regarding item Nos.1 and 2 of the plaint schedule. Plaintiff No.1 is entitled to half share in item No.3 together with the pumpset and draw up a final preliminary decree.
7. The defendant, aggrieved by the judgment and decree passed in the above said suit, filed an appeal in
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NC: 2023:KHC:44979 RSA No. 1725 of 2007 R.A.No.1/1997. The First Appellate Court, after hearing the parties, has framed the following points for consideration:
1. Whether the plaintiffs have proved that the 1st plaintiff was the absolute owner in possession of the 1st and 2nd item of the suit property?
2. Whether impugned judgment and decree of the trial Court needs any interference so for it relates to the 1st and 2nd item of the suit property?
3. What order?
8. The First Appellate Court, on re-assessment of the oral and documentary evidence, answered point No.1 in the affirmative, point No.2 in the negative and point No.3 as per the final order. The First Appellate Court on re-assessment of oral and documentary evidence dismissed the appeal with costs and confirming the judgment and decree passed by the trial Court. The defendant, aggrieved by the judgments and decrees passed by the Courts below, has filed this second appeal.
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NC: 2023:KHC:44979 RSA No. 1725 of 2007
9. This court admitted the appeal on the following substantial question of law :
i. Whether the Courts below are justified in granting decree to the purchasers who have purchased the suit schedule property during the pendency of the suit for declaration and partition? ii. Whether the Courts below have committed an error in not considering adverse possession pleaded by the defendant by framing an issue to that effect?
iii. Whether the Courts below are justified in granting decree in a suit for partition clubbing with suit for declaration?
10. Heard learned counsel for the parties.
11. Learned counsel for the defendant submits that the judgments and decrees passed by the Courts below are contrary to the law and facts of the case. He submits that the First Appellate Court committed an error in granting decree in favour of purchaser, who have purchased the suit schedule properties during the pendency of the suit for declaration and partition and trial Court has not properly framed the issues. The defendant is
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NC: 2023:KHC:44979 RSA No. 1725 of 2007 in possession of the suit schedule properties and the plaintiffs are not in possession of the suit schedule properties. Hence he submits that the judgments and decrees passed by the Courts below are arbitrary and erroneous. Hence, on these grounds he prays to allow the appeal.
12. Per contra, learned counsel for the plaintiff supports the impugned judgments and decrees passed by the Courts below.
13. Perused the records and considered the submissions of learned counsel for the parties.
14. Substantial question Nos.1 to 3: The substantial questions of law are interlinked. Hence, taken together for common discussion in order to avoid repetition of facts.
15. Plaintiff No.1 examined as PW.1 and she has reiterated the plaint averments in the examination-in - chief and produced the documents i.e., Ex.P1 is the sale
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NC: 2023:KHC:44979 RSA No. 1725 of 2007 deed dated 06.02.1937, Ex.P2 is the sale deed dated 11.05.1945, Ex.P3 is the gift deed dated 14.05.1955, Ex.P4 is the copy of release deed dated 14.04.1965, Exs.P5 and P6 are the Survey Uttar copy, Ex.P7 patta book, Ex.P8 enumeration form, Exs.P9 and P11 are the KEB notice, Exs.P12 to P18 are the kandayam receipts, Exs.P19 to P22 are the pahany copies, Exs.P23 to P26 are the record of rights extracts, Exs.P27 and P28 are the sale deeds, Exs.P29 to P31 are the RTC extracts, Ex.P32 is the patta book.
16. From the perusal of the documents produced by plaintiff No.1, it is clear that the suit lands were purchased by Lakshminarasamma under registered sale deed dated 06.02.1937. The said Lakshminarasamma was in possession of item Nos.1 and 2 during her lifetime. The said fact was admitted by DW.1 in the course of cross examination. Lakshminarasamma executed a registered gift deed in favour of plaintiff No.1 not only on her behalf and also on behalf of her minor son i.e., the defendant.
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NC: 2023:KHC:44979 RSA No. 1725 of 2007 Subsequently, the defendant also executed one more release deed dated 14.04.1965. In the said deed, there is recital that the property was gifted to plaintiff No.1 for her arishina kunkuma, but there is no recital in the original gift deed i.e., Ex.P3 executed by Lakshinarasamma in favour of plaintiff No.1. As on the date of execution of release deed dated 14.04.1965 Ex.P4 neither Lakshminarasamma nor defendant had any right over the suit schedule property as Lakshminarasamma has parted the property in favour of plaintiff No.1 under registered gift deed dated 14.05.1955 and there was no occasion for the mother of the defendant and the defendant to execute a release deed dated 14.04.1965. By virtue of registered gift deed dated 14.05.1955, plaintiff No.1 became the absolute owner of the suit schedule property. On the basis of registered gift deed, the property was transferred in the name of plaintiff No.1. Plaintiff No.1 produced the RTC extract and also regarding payment of tax in respect of the suit schedule property. Merely on the basis of recital in Ex.P4, plaintiff No.1 will not be a limited owner. Prior to
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NC: 2023:KHC:44979 RSA No. 1725 of 2007 execution of Ex.P.4, she became the absolute owner as per Ex.P.3. Initially, plaintiff No.1 filed a suit for partition and separate possession. Subsequently, the plaintiff No.1 sold the lands item Nos.1 and 2 in favour of plaintiff No.2 and 3 under registered sale deeds i.e., Ex.P27 and P28 and on the strength of the registered sale deeds, name of plaintiff Nos.2 and 3 are appearing in the revenue records. Though the plaintiff No.2 and 3 have purchased the property during the pendency of suit, the said transaction is hit by section 52 of the Transfer of property Act, 1882. Plaintiff Nos.2 and 3 after purchasing the properties item No.1 and 2 filed an application to amend the plaint. The said application came to be allowed and the defendant has not raised any objection for joinder of cause of action.
17. Though it is the case of the defendant that plaintiff No.1 was having a limited interest in the suit schedule property and she has no right to execute a registered sale deeds in favour of plaintiff No.2 and 3. The mother of the defendant executed a registered gift deed
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NC: 2023:KHC:44979 RSA No. 1725 of 2007 on 14.05.1955 on her own behalf and on behalf of the defendant. The defendant after attaining the age of majority, executed a release deed dated 14.05.1965 confirming the execution of Ex.P3. The defendant after attaining the age of majority has not challenged the registered gift deed executed by his mother on her own and on behalf of the defendant. As per Article 60 of the Limitation Act, 1963 provides limitation to set aside the transfer of property made by the guardian of the ward i.e., three years when the ward attains majority.
18. Admittedly, in the instant case, as on the date of filing the suit, the defendant was aged about 55 years. Even day, the defendant has not challenged the registered gift deed executed by his mother in favour of plaintiff No.1. The registered gift deed executed by the mother in favour of plaintiff No.1 remained unchallenged. The defendant is estoped to contend that plaintiff No.1 has not acquired any right by virtue of Ex.P3 . It is the case of the defendant that by virtue of Ex.P4 the plaintiff No.1 is
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NC: 2023:KHC:44979 RSA No. 1725 of 2007 having limited interest . In order to examine the case in hand it is necessary to examine Section 14 of the Hindu Succession Act, 1956 (for short 'the Act of 1956'), which reads as under:
14. Property of a female Hindu to be her absolute property.―(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
19. Section 14 of the Act of 1956 envisage that if a Hindu female possessed property, whether acquired before or after the commencement of the Act shall be held by her as full owner thereof and not as a limited owner.
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NC: 2023:KHC:44979 RSA No. 1725 of 2007
20. As observed above, the mother of the defendant executed Ex.P3 and there is no recital in Ex.P3 that the property was transferred to PW.1 for limited purpose. The defendant submits that the defendant executed Ex.P4 and there is a recital in Ex.P4 regarding limited rights.
21. As observed above, as on the date of execution of Ex.P4, neither the defendant nor his mother were the absolute owners of the suit property. Even assuming for the sake of considering the argument, there is a restriction clause in Ex.P4 and the said restriction is contrary to Section 10 of the Transfer of property Act.
22. It is the case of the defendant that the courts below have committed an error in declaring plaintiff No.2 and 3 are the absolute owner of item Nos.1 and 2 of plaint schedule property in a suit for partition. Initially, plaintiff No.1 filed a suit for partition and separate possession. During the pendency of the suit, plaintiff No.1 sold item Nos.1 and 2 of the suit schedule property. Plaintiff Nos.2
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NC: 2023:KHC:44979 RSA No. 1725 of 2007 and 3 came on record as the assignee and subsequently amended the plaint. Plaintiff Nos.1 and 2 filed a suit against the defendant in respect of suit schedule property and having joint interest in the suit schedule property against the defendant. In such cases, the plaintiffs may unite such causes of action in the same suit as per Order II Rule 3 of CPC, which reads as under:
"3. Joinder of causes of action. (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit."
23. The above said provision will apply as qualified the principle that it needless expenses can be avoided
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NC: 2023:KHC:44979 RSA No. 1725 of 2007 especially without causing injustice to any party it ought have been done by combining different cause of actions. Merely, the plaintiffs have jointly filed the suit for partition and declaration may not be a ground to dismiss the suit on the ground of joinder of cause of action. The trial Court was justified in decreeing the suit in a suit for declaration clubbing with the suit for partition. The defendant has not raised the defence in the written statement. However, though it is a legal point but the said issue was considered by the courts below considering order II Rule 3 of CPC.
24. The defendant has contended that he is in possession of the suit schedule property and acquired title by way of adverse possession and the trial Court has not framed the issue on plea of adverse possession. The parties on the basis of the pleadings have led the evidence after understanding the pleadings. Merely, non-framing of issue is not a ground to set aside the judgment. The trial Court recorded a finding that the defendant has not produced any records to show that he is in possession of
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NC: 2023:KHC:44979 RSA No. 1725 of 2007 the same and the defendant has failed to establish the plea of adverse possession. In view of law laid by the Hon'ble Apex Court in the case of Ravinder Kaur Grewal and others Vs. Manjith Kaur and others reported in AIR 2019 SC 3827, in para 57, held as under:
" 57. The adverse possession requires all the three classic requirements to coexist at the same time, namely, nec-vi i.e. adequate in continuity, nec-clam i.e., adequate in publicity and nec-precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonym with adverse possession."
25. In view of the above discussion, I do not find any error in the impugned judgments and decrees passed by the courts below. Accordingly, I answer, substantial
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NC: 2023:KHC:44979 RSA No. 1725 of 2007 question Nos.1 and 3 in the affirmative and 2 in the negative.
26. In view of the aforesaid facts and circumstances, I proceed to pass the following:
ORDER The appeal is dismissed.
In view of dismissal of the appeal, Miscellaneous Civil appeal No.367/2009 does not survive for consideration.
SD/-
JUDGE SKS, SSB