Karnataka High Court
Sri Jayanna K S vs M S Srinivasaiah on 10 January, 2018
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION NO.1197/2018((GM-CPC)
BETWEEN:
1. SRI.JAYANNA K S
S/O LATE SOMEKATTAPPA
AGED ABOUT 75 YEARS
R/AT BASAVESHWARA BADAVANE
SIDDAGANGA MUTT ROAD
KYATHSANDRA TUMKUR TOWN - 572 101
2. SRI SOMEKATTAPPA
S/O JAYANNA K S
AGED ABOUT 49 YEARS,
R/AT BASAVESHWARA BADAVANE
SIDDAGANGA MUTT ROAD
KYATHSANDRA TUMKUR TOWN - 572 101
... PETITIONERS
(BY SRI.SANTHOSH R NELKUDRI, ADV. FOR
SRI.VIGHNESHWAR S SHASTRI, ADV. )
AND:
M S SRINIVASAIAH
SINCE DEAD BY LRS.
1. SMT K A MANORAMA
W/O LATE M S SRINIVASAIAH
AGED ABOUT 72 YEARS,
R/AT MANCHANAHALLI VILLAGE
2
URDIGERE HOBLI - 572 101
TUMKUR TALUK AND DISTRICT.
2. SRI M S VENKATESH
S/O LATE M S SRINIVASAIAH
AGED ABOUT 46 YEARS,
R/AT MANCHANAHALLI VILLAGE
URDIGERE HOBLI - 572 101
TUMKUR TALUK AND DISTRICT.
3. SRI KRISHNAPPA @ GANGADHAR
S/O LATE THIMMAPPAGOWDA
AGED ABOUT 58 YEARS,
R/AT MANCHANAHALLI VILLAGE
URDIGERE HOBLI - 572 101
TUMKUR TALUK AND DISTRICT.
4. SMT GANGAMMA
S/O LATE THIMMAPPAGOWDA
AGED ABOUT 48 YEARS,
R/AT MANCHANAHALLI VILLAGE
URDIGERE HOBLI - 572 101
TUMKUR TALUK AND DISTRICT.
SRI THIMMANNA S/O SASALAIAH
SINCE DEAD BY HIS LRS
5. SRI THIMMEGOWDA
S/O LATE THIMMANNA
R/AT MANCHANAHALLI VILLAGE
URDIGERE HOBLI - 572 101
TUMKUR TALUK AND DISTRICT.
6. SRI SASALEGOWDA
S/O LATE THIMMANNA
AGED ABOUT 65 YEARS
R/AT MANCHANAHALLI VILLAGE
URDIGERE HOBLI - 572 101
TUMKUR TALUK AND DISTRICT.
3
SRI SASALA THIMMAIAH
S/O SASALAIAH
SINCE DEAD BY HIS LRS.
7. SRI.RANGEGOWDA
S/O LATE SASALATHIMMAIAH
AGED ABOUT 70 YEARS
R/AT MANCHANAHALLI VILLAGE
URDIGERE HOBLI - 572 101
TUMKUR TALUK AND DISTRICT.
SRI DODDATHIMMAIAH
SINCE DEAD BY HIS LRS.
8. SMT GANGAMMA
W.O LATE DODDATHIMMAIAH
AGED ABOUT 55 YEARS,
R/AT MANCHANAHALLI VILLAGE
URDIGERE HOBLI - 572 101
TUMKUR TALUK AND DISTRICT.
9. SRI KEMPARAJU
S/O LATE DODDATHIMMAIAH
AGED ABOUT 33 YEARS
R/AT MANCHANAHALLI VILLAGE
URDIGERE HOBLI - 572 101
TUMKUR TALUK AND DISTRICT.
10. SRI KESHAVAMURTHY
S/O LATE DODDATHIMMAIAH
AGED ABOUT 31 YEARS
R/AT MANCHANAHALLI VILLAGE
URDIGERE HOBLI - 572 101
TUMKUR TALUK AND DISTRICT.
SRI GANGAIAH S/O LATE SASALAIAH
SINCE DEAD BY HIS LRS.
4
11. GANGASALAIAH
S/O LATE GANGAIAH
AGED ABOUT 68 YEARS
R/AT MANCHANAHALLI VILLAGE
URDIGERE HOBLI - 572 101
TUMKUR TALUK AND DISTRICT.
12. SMT CHANNAMMA
D/O LATE GANGAIAH
AGED ABOUT 66 YEARS
R/AT MANCHANAHALLI VILLAGE
URDIGERE HOBLI - 572 101
TUMKUR TALUK AND DISTRICT.
13. NAGARAJU
S/O LATE GANGAIAH
AGED ABOUT 64 YEARS
R/AT MANCHANAHALLI VILLAGE
URDIGERE HOBLI - 572 101
TUMKUR TALUK AND DISTRICT.
14. SMT.SAROJAMMA
D/O LATE GANGAIAH
AGED ABOUT 62 YEARS
R/AT MANCHANAHALLI VILLAGE
URDIGERE HOBLI - 572 101
TUMKUR TALUK AND DISTRICT.
15. GANGADHARAIAH
S/O LATE GANGAIAH
AGED ABOUT 60 YEARS
R/AT MANCHANAHALLI VILLAGE
URDIGERE HOBLI - 572 101
TUMKUR TALUK AND DISTRICT.
16. GANGADHARAIAH
S/O LATE GANGAIAH
AGED ABOUT 58 YEARS
R/AT MANCHANAHALLI VILLAGE
5
URDIGERE HOBLI - 572 101
TUMKUR TALUK AND DISTRICT.
17. SMT MANGALAMMA
D/O LATE GANGAIAH
AGED ABOUT 55 YEARS
R/AT MANCHANAHALLI VILLAGE
URDIGERE HOBLI - 572 101
TUMKUR TALUK AND DISTRICT.
18. SMT JAYAMMA
D/O LATE THIMMAPPAGOWDA
R/AT MANCHANAHALLI VILLAGE
URDIGERE HOBLI - 572 101
TUMKUR TALUK AND DISTRICT. ... RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DTD:16.12.2017 PASSED IN FDP NO.18/2007 ON THE FILE OF
PRINCIPAL CIVIL JUDGE AND JMFC-1 AT TUMKUR AS PER
ANNEXURE - H.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present writ petition is filed by the petitioners against the order dated 16.12.2017 made in F D P No.18/2007 on the file of the Principal Civil Judge & J M F C., Tumakuru appointing a Taluka Surveyor as Court Commissioner to demarcate shares of the parties in terms of the decree dated 3.7.2000 made in O S 6 No.663/1989 and submit report along with sketch in respect of item Nos.1 to 16 situated at Machenahalli Village, Urdigere Hobli, Tumakuru Taluk and item Nos.1 to 5 situated at Mydala Amanikere village, Urdigere Hobli, Tumakuru Taluk.
2. The respondents No.1 to 4 filed O S No.663/1989 for partition and separate possession. After contest, the Trial Court by a judgment and decree dated 3.7.2000 decreed the suit declaring that the plaintiffs 1 & 2 are entitled to one-sixth share, and plaintiffs 3 & 4 to one-third share each out of one-sixth share in the suit schedule properties. Thereafter the decree- holders filed F D P No.18/2007 for implementation of the decree. The present petitioners filed I A No.3/2013 under Order 1 Rule 10 Civil Procedure Code to implead them as parties and petitioners were impleaded as Respondent Nos.5 & 6. Thereafter the present petitioners filed objections to the main proceedings on 7.9.2017.
3. The Trial Court proceeded with the F D P and appointed Taluka Surveyor as Court Commissioner to demarcate shares of 7 the parties and submit report in terms of the decree. Hence the present writ petition is filed by the petitioners.
4. I have heard the learned counsel for the petitioners.
5. Sri Santhosh R Nelkudri, learned counsel for the petitioners, contended that the impugned order passed by the Trial Court appointing a Taluka Surveyor as Court Commissioner to demarcate shares of the parties in terms of the decree is erroneous, without determining rights of the present petitioners, who are purchasers during pendency of the proceedings before the Trial Court. He would further contend, that the Trial Court without holding any enquiry and determining right of the present petitioners, proceeded to appoint the Court Commissioner, which amounts to denial of natural justice and they are prevented from putting up their contentions in the F.D.P. Therefore, he seeks to quash the impugned order passed by the Trial Court.
6. Having heard the learned counsel for the petitioners, it is not in dispute that the decree-holders, who are the plaintiffs before the Trial Court, got the decree and in terms thereof, they 8 have filed Final Decree Proceedings to implement the same. It is also not in dispute that the present petitioners have purchased item No.3 from Respondent No.6 under registered sale deeds dated 7.11.2000 and 30.4.2007. The said alienations made by the 6th respondent is one of the party in O S No.663/1989, after the decree and during pendency of the final decree proceedings, is definitely hit by the provisions of Section 52 of Transfer of Property Act. The Trial Court already determined rights of the parties in O S No.663/1989 and decreed the suit on 3.7.2000. The said decree has reached finality. Therefore, the decree- holders filed F D P No.18/2007 to implement the said decree.
7. The grievance of the present petitioners is that they are the purchasers during pendency of the proceedings, without determining rights of the subsequent purchasers, the trial court ought not to have passed the impugned order to demarcate shares of the parties, cannot be accepted for the simple reason that admittedly the present petitioners are purchasers during pendency of the proceedings, and as already stated above, it is hit by the provisions of Section 52 of Transfer of Property Act. 9
8. The Trial Court considering the objections and contentions advanced by the counsel for the present petitioners, has safeguarded their interest and held that in a final decree proceedings, unless report regarding feasibility of demarcation is submitted by the Court Commissioner, it is not possible to allot share of the parties and to put them in possession. It is only after obtaining report from the Court Commissioner and after hearing objections if any from the parties, the physical partition of the properties could be made. In so far as claim of the Respondents No.5 & 6/present petitioners is concerned, the same needs to be looked into after receipt of the Court Commissioner's report. The Trial Court recorded a finding that the property purchased by the respondents No.5 & 6, the present petitioners and the share that could be allotted to their vendor is to be adjudicated after receipt of the report and taking note of the fact that what is the extent of the property available. Therefore, at that stage, it was not necessary to hold enquiry regarding claim of the Respondents No.5 & 6, as prayed. 10
9. Therefore, the Trial Court was of the opinion that it is just and necessary to appoint the Taluka Surveyor as Court Commissioner to demarcate shares of the parties as per the preliminary decree and thereafter examine the claim of Respondents No.5 & 6 for adjustment/allotment of portion of the property purchased by them to the share of their vendor. Accordingly, the Court Commissioner is appointed to demarcate shares of the parties and submit report along with sketch in respect of the suit schedule properties in terms of the decree dated 3.7.2000 made in O S No.663/89. The same is in accordance with law. The petitioners have not made out any ground to interfere with the impugned order passed by the Trial Court exercising power by this Court under Article 227 of the Constitution.
Accordingly, the writ petition is rejected.
Sd/-
JUDGE akd