Karnataka High Court
Daymavva W/O Malleshappa vs Doddabasappa S/O Malleshappa on 3 January, 2024
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NC: 2024:KHC-D:79-DB
RFA No. 100158 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100158 OF 2015 (DEC/PAR)
BETWEEN:
1. SMT. DAYMAVVA W/O. MALLESHAPPA
GOUDASHIVANNAVAR,
SINCE DECEASED BY HER LRs.,
1(A). SRI. PRABHUGOUDA
S/O. SIDDANAGOUDA MALLADAD,
(APPELLANT NO.1(A) HAS BEEN ADDED IN THE
CAUSE TITLE AS PER THE ORDER PASSED BY
THIS HON'BLE COURT DATED 28.05.2019).
SINCE DECEASED BY HIS LRs.,
1(A)(A). SMT. SHOBHA
W/O. PRABHUGOUDA MALLADAD,
MOHANKUMAR
AGE: 40 YEARS, OCC: HOUSEHOLD WORK.
B SHELAR
Digitally signed by
MOHANKUMAR B
1(A)(B). SMT. SANVI D/O. PRABHUGOUDA MALLADAD
SHELAR
Date: 2024.01.09
11:41:12 +0530
AGE: 11 YEARS, OCC: STUDENT.
1(A)(C). SMT. POORVI D/O. PRABHUGOUDA MALLADAD
AGE: 8 YEARS, OCC: STUDENT,
APPELLANT NO.1(A)(B) AND 1(A)(C) ARE
MINORS R/BY THEIR MOTHER
APPELLANT NO.1(A)(A) SMT. SHOBHA
W/O. PRABHUGOUDA MALLADAD
AS A MINOR GUARDIAN
ALL ARE R/O: S.M.S.COMPLEX, P.B.ROAD,
NEAR P.W.D.RANEBENNUR,
DIST: HAVERI-58115.
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NC: 2024:KHC-D:79-DB
RFA No. 100158 of 2015
(THE APPELLANT NO.1(A)(A), 1(A)(B) AND 1(A)(C)
HAS BEEN ADDED IN THE CAUSE TITLE AS PER
THE ORDER PASSED BY THIS HON'BLE COURT
ON I.A.NO.1/2023 DATED 10.07.2023).
- APPELLANTS
(BY SRI. S.L.MATTI, ADVOCATE FOR A1(A)(A) TO A1(A(C))
AND:
1. SRI. DODDABASAPPA S/O. MALLESHAPPA
GOUDASHIVANNAVAR,
SINCE DECEASED R/BY HIS LRs.,
1(A). SMT. SHAKUNTALA W/O. DODDABASAPPA
GOUDASHIVANNAVAR,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O: RAMALADAVAR ONI,
RANEBENNUR TOWN,
TQ: RANEBENNUR, DIST: HAVERI-581115.
(AMENDMENT CARRIED OUT AS PER THE
ORDER DATED 21/02/2023).
2. SRI. SANNABASAPPA S/O. MALLESHAPPA
GOUDASHIVANNAVAR,
AGE: 52 YEARS, OCC: AGRICULTURIST,
R/O: RAMALADAVAR ONI,
RANEBENNUR TOWN, DIST: HAVERI-581115.
3. SMT. SHIVALEELA
W/O. JAYAPPA CHANDANAKERI,
AGE: 45 YEARS, OCC: HOUSEWIFE,
R/O: RAMALADAVAR ONI,
RANEBENNUR TOWN,
TQ: RANEBENNUR, DIST: HAVERI-581115.
4. SRI. SHYAMSUNDAR
S/O. VENKATESH DAIVAGNA,
AGE: 30 YEARS, OCC: BUSINESS,
R/O: KOTE, RENEBENNUR TOWN,
DIST: HAVERI-581115.
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NC: 2024:KHC-D:79-DB
RFA No. 100158 of 2015
5. SRI. KUBERGOUDA S/O. VEERANAGOUDA
HALAPPAGOUDAR, AGE: 33 YEARS,
OCC: BUSINESS AND AGRICULTURIST,
R/O: TIPPAYIKOPPA VILLAGE,
TQ: HIREKERUR, DIST: HAVERI-581111.
6. SRI. ODUGOUDA S/O. VEERANAGOUDA
HALAPPAGOUDAR, AGE: 33 YEARS,
OCC: BUSINESS AND AGRICULTURIST,
R/O: TIPPAYIKOPPA VILLAGE,
TQ: HIREKERUR, DIST: HAVERI-581111.
7. SRI. KUMAR S/O. BUDIGOUDA HALAPPAGOUDAR,
AGE: 35 YEARS, OCC: BUSINESS
AND AGRICULTURIST,
R/O: TIPPAYIKOPPA VILLAGE,
TQ: HIREKERUR, DIST: HAVERI-581111.
8. SRI. MANJUNATH S/O. VENKATESH DAIVAGNA,
AGE: 33 YEARS, OCC: BUSINESS,
R/O: KOTE, RENEBENNUR TOWN,
DIST: HAVERI-581111.
9. SMT. SHOBHA W/O. SIDDANAGOUDA MALLADAD,
R/O: SHIDENUR VILLAGE, TQ: BYADAGI,
DIST: HAVERI-581106.
10. SMT. NEELAMMA W/O. DODDAGOUDA PATIL
AGE: 52 YEARS, OCC: HOUSEWIFE,
R/O: MEDUR VILLAGE, TQ: HIREKERUR,
DIST: HAVERI-581106.
- RESPONDENTS
(BY SRI.DINESH M.KULKARNI, ADVOCATE FOR R4 AND R8;
NOTICE TO R1(A), R2, R3, R5 TO R7 ARE SERVED;
A2 AND A3 ARE TRANSPOSED AS R9 AND R10
V/O DATED 06.11.2023.)
THIS RFA IS FILED U/S.96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 05.06.2015, PASSED IN
OS.NO.45/2015, ON THE FILE OF ADDITIONAL SENIOR CIVIL
JUDGE, HAVERI, DISMISSING THE SUIT FILED FOR,
DECLARATION, PARTITION AND SEPARATE POSSESSION & ETC.
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NC: 2024:KHC-D:79-DB
RFA No. 100158 of 2015
THIS RFA COMING ON FOR HEARING, THIS DAY, ASHOK S.
KINAGI, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and decree dated 05.06.2015 passed in O.S.No.45/2015 by the Additional Senior Civil Judge, Haveri.
2. For the sake of convenience, parties are referred to as per their ranking before the trial court.
3. Appellants are the plaintiffs and respondents are the defendants.
4. Plaintiffs filed a suit for declaration declaring that registered sale deed dated 16.07.2010 executed by defendant Nos.1 to 3 in favour of defendant Nos.4 to 8 in respect of item No.1 of the plaint schedule property and registered on 23.07.2010 are not binding on the plaintiffs and also sought for the relief of partition and separate possession of plaintiffs 1/6th share each in all the suit properties by metes and bounds.
It is the case of the plaintiffs that the plaintiff No.1 is the wife of original propositus namely, Malleshappa. Malleshappa had five children i.e., plaintiff Nos.2, 3 and defendant Nos.1-3. -5-
NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 The deceased Malleshappa filed a suit in O.S.No.90/1986 for the relief of partition and separate possession against his brother. The said suit was decreed and thereafter Malleshappa filed final decree proceedings in FDP No.3/1999. During the pendency of the final decree proceedings, the said Malleshappa died leaving behind plaintiffs and defendants as his legal heirs. Defendant Nos.1 to 3 came on record in the final decree proceedings as plaintiff Nos.1A to 1C. In the final decree proceedings, Court Commissioner was appointed and submitted a report. The final decree court accepted the Commissioner's report and passed final decree. In the final decree, the suit item Nos.1 to 3 were allotted to the share of Late Malleshappa.
The final decree was drafted without mentioning the names of the plaintiffs with defendants as legal representatives of deceased Malleshappa. Thereafter, defendant Nos.1 to 3 filed execution petition in E.P.No.91/2009 seeking possession of the properties. In the execution petition, possession of the properties known as item Nos.1 to 3 delivered in favour of defendant Nos.1 to 3. There was a mistake crept in the final decree, wherein the names of the plaintiffs were not shown along with defendant Nos.1 to 3. Plaintiffs filed an application -6- NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 under Section 152 of CPC for correction of the mistake crept in the final decree. The said application came to be allowed vide order dated 26.03.2011 and plaintiffs names were included along with the names of defendant Nos.1 to 3 in the final decree, which was already drawn entitling the present plaintiffs along with defendant Nos.1 to 3 to receive the share of late Malleshappa. On the basis of the original final decree, defendant Nos.1 to 3 sold item No.1 of plaint schedule property under registered sale deed dated 23.07.2010. Defendant Nos.4 to 8 filed W.P.No.65352/2010 challenging the order dated 26.03.2011 passed in the aforesaid final decree proceedings. The said writ petition was disposed of on 08.01.2013 directing the final decree court to hear defendant Nos.4 to 8 and plaintiffs and to pass appropriate order. Thereafter, defendant Nos.4 to 8 got impleaded in FDP No.3/1999 and filed their objections. The FDP court after hearing the parties rejected the application filed by the plaintiffs vide order dated 27.07.2013. It is contended that defendant Nos.1 to 3 have no right to alienate suit item No.1 schedule property in favour of defendant Nos.4 to 8. It is further contended that registered sale deed executed by defendant Nos.1 to 3 in favour of defendant Nos.4 -7- NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 to 8 is not binding on the plaintiffs. The defendant Nos.4 to 8 are not the bonafide purchasers. After the demise of Malleshappa, plaintiffs and defendant Nos.1 to 3 have succeeded to the suit property. The plaintiffs demanded for partition and separate possession. Defendants did not effect partition. Hence, the cause of action arose for the plaintiffs to file the suit for declaration, partition and separate possession.
5. Defendant No.2 filed written statement contending that suit filed by the plaintiffs is not maintainable. It is contended that final decree court passed an order on 27.07.2013 rejecting the application filed by the plaintiffs and the said order has attained finality. Hence, the suit is hit by the principles of res- judicata and item No.1 of the plaint schedule property is not available for partition and separate possession.
6. Defendant Nos.4 to 8 filed written statement contending that suit filed by the plaintiffs is not maintainable and suit filed by the plaintiffs is collusive suit and defendant Nos.4 to 8 are not bonafide purchasers for value without notice. It is contended that plaintiffs have no right to question the legality and correctness of the decree passed in FDP No.3/1999 and -8- NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 order passed in E.P.No.91/2009. Hence, prayed to dismiss the suit.
7. The trial court on the basis of the pleadings of the parties, framed following issues:
i) Whether plaintiffs prove that, sale deed dated 16.07.2010 executed by defendant Nos.1 to 3 in favour of defendant Nos.4 to 8 in respect of item No.1 of schedule property is not binding on plaintiffs?
ii) Whether plaintiffs are entitled for the relief of declaration?
iii) Whether the plaintiffs are entitled for the relief of partition and separate possession?
iv) Whether 4th defendant prove that plaintiff has no right to question the legality and correctness of decree passed in FDP No.3/1999 and Ex.Pet.NO.91/2009 and this court has no jurisdiction to try the suit?
v) Whether the defendant Nos.4 to 8 prove that they are bonafide purchasers for value?
vi) Whether 2nd defendant proves that suit is hit by principles of res-judicata?
vii) What order or decree?
8. Plaintiff No.1 examined as P.W.1 and got marked 19 documents as Exs.P1 to P19. Defendant No.8 examined himself -9- NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 as D.W.1 and got marked 16 documents as Exs.D1 to D16. The trial court on assessment of oral and documentary evidence, answered issue Nos. 1 to 3 in the negative, issue Nos.4 to 6 in the affirmative and issue No.7 as per final order. The trial court dismissed the suit filed by the plaintiffs vide judgment and decree dated 05.06.2015. Aggrieved by the judgment and decree passed by the trial court, the plaintiffs have filed this appeal.
9. Heard the learned counsel for the plaintiffs and learned counsel for defendant Nos.4 and 8.
10. Learned counsel for the plaintiffs submits that the trial court has committed an error in recording a finding that suit is hit by the principles of res-judicata. He submits that the final decree court had awarded the share to late Malleshappa wherein the plaintiffs being the legal representatives of the deceased Malleshappa are entitled for a share in the suit schedule properties. He submits that defendant Nos.1 to 3 have no right to execute the registered sale deed in favour of defendant Nos.4 to 8 in respect of item no. 1 of the suit schedule property and the sale deed is hit by the doctrine of lis-
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 pendency, as the registered sale deed was executed during the pendency of the execution petition. Hence, he submits that defendant Nos.4 to 8 have not acquired any right, title and interest by virtue of the registered sale deed executed by defendant Nos.1 to 3. He submits that res-judicata is not applicable to the present case on hand, as the order passed by the final decree court is on interlocutory application and it is not a final judgment. He submits that trial court ought to have decreed the suit in part at least granting share in item Nos.2 and 3 of the suit schedule properties. He submits that the judgment of the trial court is arbitrary and erroneous. In support of his contention, he placed reliance on the following judgments.
i) Sukhrani vs Harishankar (AIR 1979 SC 1436).
ii) City Municipal Council, Bhalki by its Chief Officer vs Gurappa (D) by LRs and Another [2015 (5) KCCR 694 (SC)].
iii) The Jamia Masjid, Gubbi vs Sri.K.V.Rudrappa (dead) by L.Rs (2008 (4) KCCR 2619).
iv) K.Subramani vs Zaheerunnisa Begum and Others (2009 (1) KCCR 369).
v) Sri.N.Narayana and Others vs Sri.Ramesh Kumar and Others (2010 (2) KCCR 1464).
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015
vi) A. Ravindranath vs Smt.Uma S. Poojary and Others (2003 (3) Kar.L.J.197).
11. Plaintiffs have filed application for production of additional evidence under Order 41 Rule 27 r/w Sec. 151 of CPC. He submits that the names of plaintiff along with defendants no.1 to 3 were entered in the revenue records and subsequently names of plaintiffs were deleted from the revenue records and only names of defendants no.1 to 3 were shown. Hence he submits that in order to show that names of the plaintiffs were incorporated in the revenue records, the additional evidence produced by the plaintiffs are relevant for the purpose of deciding the matter in dispute. The plaintiffs inspite of due diligence could not produce the said records before the trial court. Hence, he prays to allow the application filed for production of additional evidence.
12. Learned counsel for defendant Nos.4 and 8, submits that father of plaintiff Nos.2 and 3 and defendant Nos.1 to 3 filed a suit for partition and separate possession against his brother in O.S.No.90/1986. The said suit was decreed and father of the plaintiffs Nos.2 and 3 and defendant Nos.1 to 3 was granted 8/35th share in the joint family properties. He submits that
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 Malleshappa filed FDP No.3/1999 and during the pendency of the proceedings, Malleshappa died leaving behind defendant Nos.1 to 3 as his legal heirs. He submits that final decree was drawn on 25.03.2009, after disposal of the final decree proceedings. The plaintiffs filed an application seeking correction of the final decree. Initially the said application came to be allowed vide order dated 26.03.2011. Later on after remand by the Hon'ble High Court the said application was rejected vide order dated 27.07.2013. The plaintiffs filed regular appeal in R.A.No.66/2015. He submits that the said appeal came to be dismissed for default. He submits that plaintiffs filed miscellaneous petition for readmission of R.A.No.66/2015. The said miscellaneous petition was withdrawn. He submits that finding recorded in the order dated 27.07.2013 has attained finality. He submits that thereafter the defendants no.1 to 3 filed execution petition in E.P. No. 91/2009 and during the pendency of the same, the defendants no.4 to 8 have purchased the suit schedule property from defendants no.1 to 3. Plaintiffs had knowledge about execution of registered sale deed by defendants no.1 to 3 in favour of defendants no.4 to 8 and the execution petition was closed in
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 the year 2011. The plaintiffs did not challenge the registered sale deed in spite of having knowledge well within time. Hence, the suit filed by the plaintiff is barred by limitation.
13. In order to buttress his arguments, he places reliance on the following judgments of the Hon'ble Apex Court reported in (2011) 1 SCC 197 (J. Kodanda Rami Reddy Vs. State of Andhra Pradesh and Others); 2011 (4) KCCR 3223 (SC) (Inderjit Singh Grewal Vs. State of Punjab and Another); and (1987) AIR (SC) 1443 (Ganpat Singh (dead) by LRs. Vs. Kailash Shankar & Ors.). So also, reliance is placed on the judgment of this Court in (2008) 2 KCCR 1029 (B.Chandravathi Shetty (dead) by LRs. And another Vs. B.Seetharama Shetty and Another. Hence, on these grounds he prays to dismiss the appeal in respect of item no.1 of the suit schedule property.
14. We have heard learned counsel appearing for the parties and perused the material on record.
15. The points that arise for consideration in this appeal are:
(i) Whether the plaintiffs prove that the sale deed dated 16.07.2010 executed by defendants no.1 to 3 in
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 favour of defendants no. 4 to 8 in respect of item No.1 of the suit schedule property is not binding on them?
(ii) Whether the defendants no.4 to 8 prove that the suit is hit by principles of resjudicata?
(iii) Whether the defendant Nos.4 to 8 prove that the suit filed by the plaintiffs is barred by limitation?
(iv) Whether the plaintiffs prove that the judgment and decree passed by the trial court is perverse and arbitrary?
(v) Whether the plaintiffs have made out grounds to allow the application for production of additional evidence?
(vi) What order or decree?
16. Point No.1:It is the case of the plaintiffs that father of the plaintiffs no.2, 3 and defendants no.1 to 3 namely Malleshappa filed a suit for partition and separate possession against his brother in O.S.No.90/1986 in respect of items no.1 to 3 of the suit schedule properties and other properties. The said suit was decreed vide judgment dated 13.03.2009. Malleshappa filed final decree proceedings in F.D.P.No.3/1999. Malleshappa died during pendency of the final decree proceedings leaving behind plaintiffs no.1 to 3 and defendants no.1 to 3 as his legal heirs.
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 But only the defendants no.1 to 3 came on record in the final decree proceedings and accordingly final decree was drawn showing the defendants no.1 to 3 are the legal heirs of Malleshappa without including the names of plaintiffs as legal representatives of deceased Malleshappa. The said final decree proceedings court has drawn the final decree dated 13.03.2009. After drawing up of the final decree, the plaintiffs filed an application for correction of final decree contending that they are the legal representatives of the deceased Malleshappa and their names have not been included in the final decree. The said application came to be allowed at the first instance and thereafter defendants no.4 to 8 aggrieved by the order on the application, preferred W.P. No. 65352/2012 before this Court. By order dated 08.01.2013 the writ petition was allowed directing the F.D.P. Court to hear the defendants no. 4 to 8 and the plaintiffs and to pass appropriate order. After remand the trial court rejected the application filed by the plaintiffs vide order dated 27.07.2013. Thereafter the defendants no.1 to 3 filed execution petition in E.P. No. 91/2009. During the pendency of the execution petition, defendants no.1 to 3 sold the item no.1 of the suit property in favour of defendants no.4
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 to 8. The plaintiffs aggrieved by the execution of the sale deed by defendants no. 1 to 3 in favour of defendant no.4 filed the suit. The plaintiff no.1 was examined as DW1 who reiterated the plaint averments in the examination in chief and in support of the pleadings produced documents marked as Ex.P.1-R.O.R. of land bearing sy. No. 177/1 for the year 2012-13 which discloses that the said land stood in the name of Goudar, Shivanna, Hemappa and others and defendants no.1 to 3; Ex.P.2 is the RTC of land sy. No. 177/3 which stands in the name of Manjunath; Ex.P.3 is the RTC of land sy. No. 177/4 stands in the name of Shyamsundar, i.e., defendant no.4, Ex.P.4 is the RTC in respect of land Sy. No. 177/6 stands in the name of Hallappa, Goudar, Kumar. Ex.P.5 is the RTC in respect of land Sy. No. 177/7 which stands in the name of Hallappa Gowdra Kubera Goudra; Ex.P.6 is the RTC in respect of land in Sy. No. 80/2B stands in the name of defendants no.1 to 5 and others; Ex.P.7 is the RTC of land in sy. No. 550/1 stands in the name of defendants no.1, 2 and others;
17. Exs.P.8 and P.9 are the RTC extracts of land bearing Sy. No. 550/4 standing in the name of Manjunath and others; Ex.P.10 is the RTC in respect of land bearing Sy. No. 550/4
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 standing in the name of Patil, Neelamma and Shivaleela; Exs.P.11 and P.12 are the RTC extracts in respect of the land bearing Y. No. 550/5 standing in the name of Dyamavva and others; Ex.P.13 is the extract of the property registered card in respect of property bearing No. 1254-A standing in the name of defendants no.1 to 5; Ex.P.14 is the mutation extract; Ex.P.15 is the certified copy of the preliminary decree passed in O.S. No. 90/1986 which disclose that the suit filed by the father of plaintiffs no.2 and 3 was decreed on 06.10.1993 ordering that Malleshappa is entitled for 8/35th share in the suit properties. Ex.P.16 is the certified copy of the final decree proceedings petition filed by the defendants no. 1 to 3 in FDP No. 3/1999; Ex.P.17 is the certified copy of the objections filed in FDP No. 3/1999; Ex.P.18 is the certified copy of the execution petition filed in E.P. No. 91/2009; Ex.P.19 is the certified copy of the final decree passed in FDP No. 3/1999 which discloses that the suit properties were allotted to the share of LRs of deceased Malleshappa, i.e., defendants no.1 to 3.
18. During the course of cross-examination PW1 admitted that he filed an application in the final decree stating that final decree is wrongly drawn and was to be corrected. He pleads
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 ignorance that the purchasers aggrieved by the order approached the High court. PW1 admitted that he had engaged an Advocate by name Ugargol to represent him. He denied the suggestion that the order was passed without hearing the purchasers. He stated that he do not know the application was rejected and do not know that he had opportunity to challenge the said order. PW1 further admits that Magod land was allotted to defendants no.1 to 3 and Hullatti land to his share in the final decree proceedings. He admitted that Hullatti land fetches Rs.30 to Rs.40 lakhs as on the date of his cross examination. He admitted that his sons shared the Magod land in terms of the decree in F.D.P.
19. From the evidence of PW1 it is clear that the plaintiffs filed an application for correction of final decree which was rejected by the Court vide order dated 27.07.2013. The FDP Court has recorded a finding which reads as under:
"It is also to be noted that the present applications were not kept away in this proceeding. Although initially they were made as defendants 8 to 10, but they had participated in the proceeding. Under such circumstances they would have very well protested the sale transaction entered into between plaintiffs 1(a) and (b) with
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 defendants 11 to 15 after the order passed in the execution proceeding. Under such circumstances they would have very well protested the sale transaction entered into between plaintiffs 1(a) and (b) with defendants 11 to 15 after the order passed in the execution proceeding. However, the learned counsel for the applicants has vehemently urged that the applicants are not seeking for any variation of quantum of shares in this case, but all that has been sought for is to incorporate the names of defendants 8 to 10 along with the plaintiffs 1(a) to (c). No doubt, the applicants are also held entitled to the share along with the plaintiffs 1(a) to (c), but at this stage, many developments have taken place during these intervening period from the date of passing of final decree, i.e., the defendants 11 to 15 have already become the lawful owners of the properties allotted to the share of plaintiffs which they have purchased under registered sale deeds for valuable consideration. It is not the case of the applicants that these defendants 11 to 15 have purchased property during the lis. On the other hand, admittedly they have purchased after the plaintiffs 1(a) to (c) obtained possession of the properties in the execution proceeding. Under such circumstances, as has been rightly argud by the counsel for these defendants, this court has also to safeguard the interest of these bonafide purchasers. Therefore, even though the court has discretion to order for rectification of the accidental omissions crept in the
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 order or decree to advance the cause of justice, but where such rectification or correction seems to be in the nature of giving an unfair advantage to one of the parties as against the other, such power shall not be exercised. In this regard, it would be relevant to refer the authorities cited by the learned counsel for the defendants 11 to 15 reported in J.Abid Hussain v/s Mrs. R.K. Paul and another in AIR 1961 AP 508 is noteworthy of reference wherein the same principles have been reiterated. Therefore, considering all these attending circumstances, I am of the considered view that the correction sought for by the present applicants under this I.A. cannot be sustained.
20. The defendants no.1 to 3 filed execution petition arraigning the plaintiffs as judgment debtors no.8 to 10, during the pendency of which the defendants no.1 to 3 have sold the said item no.1 of the suit property in favour of defendants no.4 to 8 under the registered sale deed dated 23.07.2010. The plaintiffs were aware about the registered sale deed executed by defendants no.1 to 3 in favour of defendants no.4 to 8, but they did not raise any objection during the pendency of the execution petition. The executing court closed the execution petition vide order dated 18.06.2011. The plaintiffs did not challenge the registered sale deed for more than five years
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 from the date of execution of the registered sale deed. The plaintiffs filed the suit only on 23.09.2013. They did not challenge the registered sale deed within the prescribed period. Thus it amounts to acquiescence, the plaintiffs have acquiesced their right.
21. Learned counsel for defendants no. 4 to 8 submit that the plaintiffs aggrieved by the order passed on the application preferred an appeal in R.A. No. 66/2015. The said appeal came to be dismissed for default. The plaintiffs filed miscellaneous petition for re-admission of appeal which was withdrawn. The said fact has not been denied by the learned counsel for the plaintiffs. The order passed in the final decree proceeding on the application for correction of the final decree has attained finality. When once the party loses the legal battle, the case reaches finality, the aggrieved party cannot be permitted to play second innings in any legal forum.
22. As observed above, the findings recorded on the application by the final decree court has attained finality. In view of the same, the plaintiffs have failed to prove that the registered sale deed executed by defendants no.1 to 3 in favour
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 of defendants no. 4 to 8 is not binding on them. In view of the above discussion, point no.1 is answered in the negative.
23. Point No. 2: It is the case of the defendants that the plaintiffs have filed an application in the final decree proceedings for correction of final decree on the ground that the plaintiffs are also the legal heirs of deceased Malleshappa and their names are to be included in the final decree. The said application came to be rejected by the final decree court. In view of the same, the plaintiffs have no right to file instant suit and the suit is hit by the principles of resjudicata.
24. Admittedly, deceased Malleshappa filed final decree proceedings during the pendency of which he died leaving behind the plaintiffs and defendants no.1 to 3. Initially the said application came to be allowed by the FDP Court. After allowing the said application, the defendants no.1 to 3 sold item no. 1 of the suit property in favour of defendants no.4 to
8. The defendants no. 4 to 8 aggrieved by the order passed by the FDP Court modifying the final decree, preferred W.P. No. 65352/2012. This Court, vide order dated 08.01.2013 allowed the writ petition directing the final decree court to hear the
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 purchasers as well as the plaintiffs afresh and pass appropriate orders. The FDP Court after hearing the parties rejected the application filed by the plaintiffs. The said order was challenged by the plaintiffs in R.A. No. 66/2015 which came to be dismissed for default. The plaintiffs filed a civil miscellaneous petition which was withdrawn without reserving any liberty to file a fresh suit. Thus the order passed on the application has attained finality. The Hon'ble Apex Court in the case of S. Ramachandra Rao Vs. S. Nagabhushan Rao (2022 Live Law SC 861) wherein it is held that "doctrine of resjudicata is attracted not only in a separate subsequent proceedings but also at the subsequent stage of the same proceedings. Moreover, a binding reason cannot likely be ignored and if an erroneous decision is binding on the parties of the same litigation and concerning the same, if rendered by a court of competent jurisdiction. Such a bind decision cannot be ignored even on the principles of per inqurium because that principle applies to the precedents and not to the doctrine of res judicata". The plaintiffs placed reliance on the judgment of the Hon'ble Apex Court in the case of Sukha Rani (deceased) referred supra. In the said case decision was given at earlier
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 stage of a suit by an interlocutory order and no appeal has been taken. But in the instant case, the FDP court has passed an interlocutory order and the said order was assailed in R.A. No. 66/2015. The said R.A. No. 66/2015 was dismissed for default and the plaintiffs filed a civil miscellaneous petition for re-admission of appeal. Later on the plaintiffs have withdrawn the civil miscellaneous petition without reserving the liberty. Plaintiffs have relied on the judgment of the Hon'ble Apex Court in the case of City Municipal Council, Bhalki, by its Chief Officer (referred supra). In the said case earlier suit was not decided on merits, hence the Hon'ble Apex Court held that subsequent suit was not barred by res-judicata. In the instant case, the application filed by the plaintiffs was decided on merits and appeal was dismissed. The said judgments are not applicable to the case on hand. It is well settled that final decree proceeding is continuation of a suit. The order passed in the final decree proceeding has binding effect on the plaintiffs.
25. Admittedly, in the case on hand, the order passed by the FDP Court insofar as item no. 1 is concerned, has attained finality. In view of the same, suit is hit by principles of
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 resjudicata in respect of item no.1 of the suit schedule property. Further, we have already discussed the said issue while considering point no.1. Hence, we answer point no. 2 in the affirmative.
26. Point No. 3: Admittedly, defendants no.1 to 3 have filed E.P. No. 91/2009, during the pendency of execution petition, they have sold the land in favour of defendants no.4 to 8 under registered sale deed dated 23.07.2010. The plaintiffs were parties to the execution petition, who were arraigned as judgment debtors no.8 to 10. They were aware of execution of the registered sale deed. They did not raise any objection nor challenged the registered sale deed within three years from the date of execution of the registered sale deed. Further, the plaintiffs have not pleaded that they were not aware about the execution of registered sale deed by defendants no.1 to 3 in favour of defendants no. 4 to 8 during pendency of execution petition. They have also not explained showing the grounds upon which exemption is claimed as per Order 7 Rule 6 of CPC which reads as under:
"6. Grounds of exemption from limitation law - Where the suit is instituted after the expiration of the period prescribed by
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed."
Admittedly, the plaintiffs have filed the suit after expiry of three years from the date of execution of registered sale deed. As per Article 59 of the Limitation Act, 1963 which provides for a suit to cancel or set aside an instrument or decree or for the rescission of a contract - three years. When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. Admittedly they were party in the execution petition they were aware about the execution of the registered sale deed by defendants no.1 to 3 in favour of defendants no. 4 to 8. They did not file the suit within three years from the date of execution of registered sale deed, i.e., from the date when plaintiffs came to know. Hence, the suit filed by the plaintiffs is barred by limitation. Hence, we answer point no.3 in the affirmative.
27. Point No.4 : The trial court considering the oral and documentary evidence placed on record by the parties, was justified in recording a finding that the sale deed executed by defendants no.1 to 3 in favor of defendants no.4 to 8 in respect
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 of item no. 1 of the suit property is binding on the plaintiffs and that the suit is hit by the principles of resjudicata. We find no error in the impugned judgment. Accordingly, point no.4 is answered in the negative.
28. Point No.5: Appellant no.1(a) filed an application for production of additional evidence. In support of the application an affidavit is filed contending that the grandmother, mother and aunt have filed the suit in O.S. No. 45/2013 for partition and separate possession of 1/6th share each in the suit property against defendants no.1, 2 and 3 who are the sons and daughters of deceased Dyamavva, i.e., defendant no.1 herein, and relief of declaration declaring that the sale deeds executed by defendants no.1 to 3 in favour of defendants no.4 to 8 on 23.07.2010 in respect of land bearing sy. No. 177/1 of Magod village is not binding on the shares of the plaintiffs and contended that defendants no.1 to 3 have no right to alienate the sit item no.1 property.
29. In the affidavit filed in support of the application, plaint averments are reiterated and contended that during the course of trial the documents were not available and subsequently
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 mutations were carried out. Accordingly, names of plaintiffs were removed. These documents clearly establish that no shares were given to the plaintiffs in the properties of deceased Malleshappa, the documents are essential for the purpose of disposal of the above case. The defendants have not filed objection to the said application.
30. From the perusal of the application, it is clear that the plaintiffs have not stated any reasons as to why the said documents were not produced during the pendency of suit before the trial court. The said documents came into existence prior to filing of the suit. Now the plaintiffs in order to fill up lacuna, have filed application for production of additional evidence. It is well established principle of law that parties are not allowed to fill up lacuna at the appellate stage. Though the appeal is filed in the year 2015, the plaintiffs have filed this application on 18.09.2020.
31. Admittedly, the suit was dismissed on 05.06.2015 and application was filed in the month of September, 2020. Thus there is a delay in filing an application for production of additional evidence. The plaintiffs have not shown the
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 sufficient cause for filing an application at a belated stage. The Hon'ble Apex Court in N. Kamalam Vs. Ayyasamy and another reported in (2001) 7 SCC 503 held that "provision of Rule 27 are not designed to help the parties patch up weak points and make up for omissions made earlier. Jurisdiction of the appellate court is restricted to permitting such additional evidence as would enable it to pronounce judgment." Even if the plaintiffs are permitted to produce documents no purpose would be served, as we have already recorded that the plaintiffs have failed to prove that the sale deed executed by defendants no.1 to 3 in favour of defendants no.4 to 8 in respect of item no.1 of the suit schedule property is not binding on the plaintiffs. The main relief sought is for declaration. The suit for the relief of partition and separation is a consequential relief. When the plaintiffs are not entitle for main relief, hence question of grant consequential relief would not arise.
32. In view of the above discussion, plaintiffs have not made out grounds to entertain the application for production of additional evidence and hence the above point is answered in the negative. For the foregoing reasons, we proceed to pass the following order:
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NC: 2024:KHC-D:79-DB RFA No. 100158 of 2015 ORDER The appeal is dismissed. Judgment and decree passed by the trial court is confirmed.
No order as to costs.
Learned counsel for the plaintiffs submit that plaintiffs no.2 and 3 have filed a suit for partition and separate possession in O.S. No. 52/2023 which is pending for consideration, however, the plaintiffs and defendants no.1 to 3 are at liberty to agitate their rights in respect of item no.2 and 3 and other properties acquired by Malleshappa in the said suit.
All the contentions of the parties are kept open in respect of item no.2 and 3 and other properties of deceased Malleshappa.
In view of dismissal of appeal, I.A. No. 1/2016 does not survive for consideration and is accordingly disposed off.
Sd/-
JUDGE Sd/-
JUDGE MBS/BVV List No.: 1 Sl No.: 1