Karnataka High Court
M M Thammaiah vs Mukkatira Aiyanna (Retd Col) on 27 March, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
-1-
NC: 2024:KHC:12777
RSA No. 1188 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL No. 1188 OF 2023 (PAR)
BETWEEN:
1. M M THAMMAIAH
(SINCE DECEASED BY LR)
M. SWATHI THAMMAIAH
W/O LATE THAMMAIAH
AGED ABOUT 75 YEARS
PERMANENT RESIDENT OF
K. BYGODU VILLAGE, HATHUR POST
AMMATHI NAD, VIRAJPET TALUK
KODAGU - 571 218.
2. MR. M.T. SURAJ UTHAPPA
S/O LATE THAMMAIAH
AGED ABOUT 51 YEARS
PERMANENT RESIDENT OF
K. BYGODU VILLAGE, HATHUR POST
AMMATHI NAD, VIRAJPET TALUK
Digitally KODAGU - 571 218.
signed by
SUMA B N
Location: 3. M.T. SACHIN APPACHU
High Court of
Karnataka S/O LATE THAMMAIAH
AGED ABOUT 50 YEARS
PERMANENT RESIDENT OF
K. BYGODU VILLAGE, HATHUR POST
AMMATHI NAD, VIRAJPET TALUK
KODAGU - 571 218.
4. M.M. SURESH
S/O LATE M M MUTHANNA
AGED ABOUT 67 YEARS
PERMANENT RESIDENT OF
K. BYGODU VILLAGE, HATHUR POST
-2-
NC: 2024:KHC:12777
RSA No. 1188 of 2023
AMMATHI NAD, VIRAJPET TALUK
KODAGU - 571 218.
...APPELLANTS
(BY SRI UDAY HOLLA, SENIOR COUNSEL A/W
SRI VIVEK HOLLA, AND MS.MEGHANA BALLAL, ADVOCATES)
AND:
MUKKATIRA AIYANNA (RETD COL)
S/O LATE M.M. MUTHANNA
AGED ABOUT 76 YEARS
KOLATHODU - BYGODU VILLAGE
HATHUR POST, AMMATHI NAD
KODAGU - 571 218.
...RESPONDENT
(BY SRI MUKKATIRA AIYANNA - PARTY- IN- PERSON)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 21.04.2023
PASSED IN R.A.No.5018/2021 ON THE FILE OF THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU-
MADIKERI, SITTING AT VIRAJPET, DISMISSING THE APPEAL
AND CONFIRMING THE ORDER DATED 22.07.2021 PASSED IN
F.D.P No. 25/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE,
VIRAJPET, ALLOWING THE PETITION FILED UNDER ORDER XX,
R-18 OF CPC FOR PARTITION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC:12777
RSA No. 1188 of 2023
JUDGMENT
This appeal is by the defendants aggrieved by the Judgment and decree dated 22.07.2021 passed in FDP No.25/2012 on the file of Senior Civil Judge, Virajpet (FDP Court) which is confirmed by the Judgment and order dated 21.04.2023 in R.A.No.5018/2021 on the file of II Additional District and Sessions Judge, Kodagu-Madikeri, sitting at Virajpet (First Appellate Court).
2. The aforesaid FDP proceedings were initiated by the respondent herein seeking allotment of his 1/3rd share which was decreed in his favour in O.S.No.114/2004 on the file of Civil Judge, Junior Division, Virajpet, by its Judgment and decree dated 13.08.2007.
3. Brief facts of the case leading upto filing of the present appeal pertinent to note are as follows;
(a) Originally one M.M.Muthanna had
seven sons namely M.M.Muddappa,
M.M.Thamaiah, M.M.Bheemiah, M.M.Aiyanna,
M.M.Pemmaiah, M.M.Mandanna and M.M.Suresh. -4-
NC: 2024:KHC:12777 RSA No. 1188 of 2023 The family owned several properties. Upon the demise of M.M.Muthanna on 10.03.1976, there was registered deed of partition entered into amongst his wife and the seven sons on 12.01.1981. One of the properties namely land bearing Sy.No.173 which was later sub-divided as Sy.No.173/1 consisting of a residential house with certain appurtenances was jointly allotted to the share of three sons namely M.M.Mandanna, M.M.Thamaiah and M.M.Suresh. The said three sons of Muthanna were apparently in joint possession and enjoyment of the said property in Sy.No.173. It appears subsequently one of the sharers amongst said three sons namely M.M.Mandanna had executed a registered Deed of Release on 02.05.2002 releasing his 1/3rd share for a consideration of Rs.5 lakhs in favour of his brother M.M.Aiyanna who is respondent in this matter. Based on the said Deed of Release the above suit in O.S.No.114/2004 was filed by the respondent herein for partition and separate possession of 1/3rd share which he claimed to have acquired in terms of deed of release referred to above.
-5-
NC: 2024:KHC:12777 RSA No. 1188 of 2023
(b) The said suit was decreed by Judgment and decree dated 13.08.2007 as against which an appeal had been filed in R.A.No.32/2007 which was dismissed by Judgment and order dated 07.08.2012 and a regular second appeal in RSA No.2061/2012 that was filed was also dismissed by this Court by order dated 11.01.2013. In the meanwhile respondent herein initiated present final decree proceedings in FDP No.25/2012. There was a Special Leave Petition filed against dismissal of RSA which also resulted in its rejection.
(c) In the aforesaid Final Decree Proceedings appellants herein had specifically contended that schedule property being dwelling house is not capable of partitioning into three shares and that they are ready to pay value of 1/3rd share being claimed by respondent herein. A commissioner was appointed by FDP Court by order dated 29.07.2013 for the purpose of identification and demarcation of 1/3rd share claimed by respondent herein in terms of preliminary decree passed in aforesaid suit in O.S.No.114/2004 and for delivering the same. It appears commissioner filed his preliminary report -6- NC: 2024:KHC:12777 RSA No. 1188 of 2023 which is marked as Ex.C-4. The commissioner was put for cross examination and he has apparently stated that the house is in dilapidated condition and cannot be partitioned by metes and bounds into three shares as claimed by the respondent. By order dated 10.04.2019 the commissioner earlier report was held to be incomplete and was directed to revisit the spot along with expert to find out the feasibility to effect division of the residential house as per preliminary decree. Accordingly additional report dated 23.01.2020 was filed. Even in the said report commissioner has apparently stated that the house is in a dilapidated condition and hence indivisible.
(d) The FDP Court by impugned order however allowed the petition directing allotment of entire A schedule property with all its appurtenances and the respondent herein was directed to pay just compensation in respect of 2/3rd value of respective shares to the appellants herein. As regards schedule `B' 1/3rd share each was allotted to appellants and respondents herein respectively. Being aggrieved by the said order a regular appeal was filed in -7- NC: 2024:KHC:12777 RSA No. 1188 of 2023 R.A.No.5018/2021 the First Appellate Court concurred and confirmed with the order passed by FDP Court, and consequently dismissed the appeal against which the present appeal.
4. This Court by order dated 05.12.2023 admitted the appeal to consider the following substantial question of law:
"Whether FDP Court erred in allotting the suit schedule `A' property exclusively to the defendants on the premise that the defendants have not come forward to offer price and purchase the suit schedule property, which is found to be indivisible in the light of the report submitted by the Commissioner when the materials on record clearly indicates that the present appellants did file an application under Section 3 of the Partition Act expressing their intention that they are willing to compensate the sole respondent and are willing to buy 1/3rd share of the respondent?"
5. Learned counsel for the appellants reiterating the grounds urged in the memorandum of appeal submitted that the FDP Court and first appellate Court erred in not noticing the fact that the appellants are admittedly entitled for 2/3rd share in schedule property while respondent is entitled for 1/3rd share in the schedule property. That the -8- NC: 2024:KHC:12777 RSA No. 1188 of 2023 FDP court and First Appellate Court ignoring the offer made by the appellants to buy over 1/3rd share of the respondent, instead directed the respondent to buy 2/3rd share of the appellants which is erroneous. It is further contended that the reasons assigned by the FDP Court to allot the entire schedule A property with a direction to pay the value of 2/3rd share is without reference to the factual aspect of the matter. In that, it is contended that FDP Court has not adverted to the fact that respondent had purchased 1/3rd share from the share of one M.M.Mandanna surreptitiously and thereafter forcibly occupied portion of the property which factor has not been appreciated while considering the equities. It is also contended that land in schedule 'A' property measures 4.65 acres which is very much divisible and the dwelling house occupies only a portion of the said large extent of land. No reason is assigned by the FDP Court and First Appellate Court in this regard while coming to the impugned conclusion. Hence, it is submitted that the -9- NC: 2024:KHC:12777 RSA No. 1188 of 2023 substantial question of law framed by this Court to be answered in the affirmative.
6. In response respondent-party-in-person, taking attention of this Court to the documents filed along with his statement of objections contended that the house property was already divided in terms of a registered deed of partition dated 12.01.1981 as each of the three sons of M.M.Madanna were allotted 1/3rd share separately. He further submits that he has been maintaining the said property, otherwise the situation of the building would have been even more worse. It is his further submission that the area surrounding the dwelling house which is in his occupation is referred to in the partition deed as appurtenance. Therefore it cannot be said that the dwelling house has to be treated separately from the area appurtenant thereto. It is his submission that without appurtenance area, house cannot be utilised effectively. He further submits the commissioner report indicating the area around the house namely `coffee drying yard' and
- 10 -
NC: 2024:KHC:12777 RSA No. 1188 of 2023 `hithalu' area are very much necessary for the purpose of effective enjoyment of the dwelling house without which it is impossible to occupy the same. He further submits if the said open area is divided the same would be utilised by the strangers causing inconvenience and hardship to the occupants of the dwelling namely, himself. He further submits that he had indeed made an offer to sell his 1/3rd portion about 20 years ago, alternatively to buy over the shares of appellants which was not acceded to by the appellants. He submits that it is now too late in the day for him to offer his 1/3rd share to be brought over by the appellants. He submits the only option, which is rightly accepted by FDP Court and First Appellate Court, is allotting entire schedule `A' property to him which is just and equitable. He refers to Section 3 of Partition Act, 1893 to contend that a dwelling house which is indivisible cannot be divided and only a person who is willing to buy should be given an option to buy. Thus, he submits that the FDP Court and First Appellate Court have committed no error in passing the impugned order warranting
- 11 -
NC: 2024:KHC:12777 RSA No. 1188 of 2023 interference at the hands of this Court and hence seeks for dismissal of the appeal.
7. Heard and perused the records.
8. Undisputed facts of the case are that in the partition dated 12.01.1981 subject property was allotted jointly to shares of M.M.Madanna, M.M.Thammana, M.M.Suresh of which M.M.Madanna has released 1/3rd of his undivided right, title and interest in the subject property in favour of respondent herein; that the subject property measures 4.65 cents together with a dwelling house and other structures existing thereon. Preliminary decree holding respondent to be entitled for 1/3rd share that was passed in O.S.No.114/2004 has attained finality though challenged right upto the Apex court.
9. All that is required, is giving effect to the said preliminary decree. The issue that revolves in this matter is with regard to nature of the subject property and viability of its division. Admittedly there is a dwelling
- 12 -
NC: 2024:KHC:12777 RSA No. 1188 of 2023 house which is more than six decades old. Submissions and counter submissions have been made before the FDP Court regarding viability/feasibility of its division taking into consideration commissioner report who has apparently opined that the said dwelling house is in a dilapidated condition. However FDP Court has proceeded to allot entire schedule `A' property on the grounds of "morality and humanity" with a direction for him to pay the value of 2/3rd share therein to the appellants in respect of schedule `A' property.
10. On a perusal of the orders impugned what emanate is that the FDP Court and First Appellate Court seem to have focused only on the nature of the dwelling house and its divisibility. What has missed the attention of the FDP Court and First Appellate Court is the land surrounding the said house. Commissioner report at Ex.C7 and sketch at Ex.C8 refers to existence of four items of property within the schedule A property. They are;
- 13 -
NC: 2024:KHC:12777 RSA No. 1188 of 2023
(i) Portion of property coloured in yellow consists of the dwelling house and other structures, which stated to occupy an extent of 0.60 acre.
(ii) Area coloured in Blue is shown as coffee drying yard which is stated to occupy an extent of 0.30 acre.
(iii) Area coloured in orange which is about 0.08 acre stated to being used for purpose of passage.
(iv) Area coloured in Green is shown as coffee cultivating area which is to an extent of 0.42 acre of land.
11. Nowhere in the order passed by FDP Court or First Appellate Court is there any reference with regard to these items of properties shown in Ex.C8. There is also no reference to the entire extent of 4 acres 65 cents of land in which these items exists. Entire attention is devoted only to the existence of the dwelling house its condition, feasibility of its division and nothing else.
- 14 -
NC: 2024:KHC:12777 RSA No. 1188 of 2023
12. On a query by this Court, respondent party-in- person also concedes that neither in the partition deed nor in the release deed under which he claimed to have acquired 1/3rd share in the subject property is there any mention regarding the open area or its extent or boundaries or any specific identification. Generic terms such as `appurtenance' `hithalu' is mentioned and nothing else. It is only in the commissioner report these specific details of extensions of land are forthcoming. The FDP Court and First Appellate Court have not adverted to this crucial aspect of the matter even while coming to the conclusion that the property is indivisible.
13. Reading of the material on record makes it clear that land forming part of schedule A property measures 4 acres 65 cents which itself is considerably a vast area, dwelling house and other structures occupy only an extent of 60 cents. It is therefore impossible to hold that said area of land is also indivisible. In the absence of any specific reference either in the partition deed or in release
- 15 -
NC: 2024:KHC:12777 RSA No. 1188 of 2023 deed or in preliminary decree, pointing out to the extent of 'appurtenances', the FDP Court and First Appellate Court are not justified in holding the entire A schedule property which consists of such vast extent of land indivisible. It may be that area covered by the dwelling house, since the same is stated to be more than six decades is indivisible. However the same yardstick may not applicable to the rest of the area and same has not been considered by FDP Court and First Appellate Court. This has led to anomaly in the Decree/order passed by the FDP Court which is confirmed by the First Appellate Court without any application of mind.
14. At this juncture learned counsel for appellants points out an application filed by respondent-party-in- person in I.A.No.7 in the FDP Court wherein he himself apparently proposed the manner in which even the dwelling house could be divided.
- 16 -
NC: 2024:KHC:12777 RSA No. 1188 of 2023
15. Be that as it is. The fact remains that the order passed by the FDP Court concurred and confirmed by First Appellate Court do not advert to these issues of the matter more particularly when the material was available by way of commissioner report regarding existence, extent and nature of the property. The substantial question of law therefore framed by this Court is answered in the affirmative. The FDP Court and First Appellate Court have erred in allotting the entire suit schedule A property exclusively to the respondent for the reasons assigned thereunder.
16. As regards the impleading application filed in I.A.2/2023 by legal representatives of M.M.Madanna, who had executed Deed of Release in favour of respondent herein, this Court do not find any reason to allow the said application at this juncture. However impleading applicants are at liberty to avail such remedies as may be available under law.
- 17 -
NC: 2024:KHC:12777 RSA No. 1188 of 2023 Hence, the following:
ORDER
1. Appeal is allowed.
2. The impugned Judgment and decree dated 22.07.2021 passed in FDP No.25/2012 and Judgment and order dated 21.04.2023 passed in R.A.5018/2021 are set aside.
3. The matter is remitted to the FDP Court for fresh consideration.
4. The FDP Court after affording sufficient opportunity to the parties and adverting to the extent of property as mentioned in the sketch at Ex.C8 submitted by the Court Commissioner as the basis shall proceed to pass orders in accordance with law. Such order shall be passed within an outer limit of six months from the date of receipt of certified copy of this order.
Parties shall co-operate for expeditious disposal of the matter. All contentions are kept open.
Sd/-
JUDGE SBN