Karnataka High Court
Sri. B. Venkateshwara Bhat vs Sri. B. Subrahmanya Bhat on 5 September, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
-: 1 :-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT PETITION No.2431/2016 (GM-CPC)
BETWEEN:
SRI B. VENKATESHWARA BHAT
S/O. LATE B.V. VENKATRAMANA BHAT,
AGED 54 YEARS,
C/O RAMACHANDRA BHAT,
POST: HARIYA,
HOSANAGARA TALUK,
SHIMOGA DISTRICT,
KARNATAKA - 577 201. ... PETITIONER
(BY SRI: SACHIN B.S., ADVOCATE)
AND:
1. SRI B. SUBRAHMANYA BHAT
S/O. LATE B.V. VENKATRAMANA BHAT,
AGED 72 YEARS,
2. SRI VENKATRAJA
S/O. B. SUBRAMANYA BHAT,
AGED 40 YEARS,
3. SRI NARAYANA PRAKASH
S/O. B. SUBRAMANYA BHAT,
AGED 38 YEARS,
4. SRI SHIVAPRASAD
S/O. B. SUBRAMANYA BHAT,
AGED 36 YEARS,
ALL ARE RESIDING AT
KANTHARANIMOOLE,
BALNADU VILLAGE, P.O. UJIRUPADE,
(VIA) NEHRUNAGAR,
PUTTUR, D.K. - 574 201.
-: 2 :-
5. SRI NARAYANA BHAT
S/O. LATE B.V. VENKATRAMANA BHAT,
AGED 67 YEARS,
R/O. THARIGUDDE HOUSE,
CHIKKAMUDNOOR VILLAGE & POST,
PUTTUR TALUK - 574 201.
6. SRI B. KRISHNA BHAT
S/O. LATE B.V. VENKATRAMANA BHAT,
AGED 64 YEARS,
R/O.C-35A, KAILAS QUARTERS,
MANIPAL, UDUPI TALUK, D.K. - 574 201.
7. SRI B. KESHAVA BHAT
S/O. LATE B.V. VENKATRAMANA BHAT,
AGED 60 YEARS,
406, PANCHA RATHNA,
OPP. RAILWAY STATION,
BHAYANDRA (E) - 401 105.
8. SRI B. GANAPTHI BHAT
S/O. LATE B.V. VENKATRAMANA BHAT,
AGED 56 YEARS,
C/O K. GOPALAKRISHNA BHAT,
BIKURI, BAJATHOOR VILLAGE,
P.O. KANCHANA, PUTTUR TALUK 574 201.
9. SRI B. SUBHASHCHANDRA BHAT
S/O. LATE B.V. VENKATRAMANA BHAT,
AGED 52 YEARS,
OFFICE ASSISTANT,
CAMPCO CHOCOLATE FACTORY,
MARIL, KEMMINJE VILLAGE AND POST,
PUTTUR TALUK, D.K. - 574 201.
10. BABY MANASA
D/O. LATE SATHYA MURTHY,
AGED 13 YEARS,
REPRESENTED BY MINOR -
GUARDIAN APPOINTED BY
DISTRICT JUDGE, MANGALORE,
SRI GURUPRASAD,
ADVOCATE,
C/O MANGALORE BAS ASSOCIATION,
COURT COMPLEX,
MANGALORE, D.K. - 575 101.
-: 3 :-
11. SRI B. SHIVARAMA BHAT
S/O. LATE B.V. VENKATRAMANA BHAT,
AGED 62 YEARS,
HOUSE NO.174, 4TH MAIN,
'B' BLOCK, BANK EMPLOYEES COLONY,
BUGADI, MYSORE - 570 023.
12. SRI B. MAHABALESHWARA BHAT
S/O. LATE B.V. VENKATRAMANA BHAT,
AGED 58 YEARS,
HOLLETHURA HOUSE,
ALANKAR VILLAGE, POST ALANKAR,
PUTTUR TALUK, D.K. - 574 201.
13. SMT. SHARADA
W/O. DR. K.S.N. BHAT,
AGED ABOUT 78 YEARS,
SHRI HARSHA NILAYA,
KUVETTU VILLAGE,
GURUVAYANAKERE POST,
BELTHANGADY TALUK, D.K. - 571 242.
14. SMT. SEETHALAKSHMI
W/O. K. THIRUMALESHWARA BHAT,
AGED 74 YEARS,
R/O. KEREKODI HOUSE,
PADMUNJA POST,
KANIYOOR VILLAGE,
BELTHANGADY TALUK, D.K. - 571 242.
15. SMT. KRISHNA KUMARI
W/O. N.K. THIMMAPPAYYA,
AGED ABOUT 64 YEARS,
R/O. L-1380, 3RD MAIN, 10TH CROSS,
VIVEKANANDA NAGAR,
MYSORE - 570 023.
16. SMT. ISHWARI
W/O. SHIVAKUMAR,
AGED ABOUT 62 YEARS,
R/O. MANJUKTYA HOSUE,
MADNUR VILLAGE, P.O. KAVU,
PUTTUR TALUK, D.K. DISTRICT - 574 201.
17. SMT. SAVITHA
W/O. KRISHNARAJA BHAT,
AGED ABOUT 33 YEARS,
R/O SARASWATHI SADANA,
-: 4 :-
SHIRTHADY VILLAGE & POST,
MANGALORE TALUK, D.K. - 575 101. ... RESPONDENTS
(BY SRI: PRASANNA V.R., ADVOCATE FOR R-1 TO R-4;
SRI G. BALAKRISHNA SHASTRY, ADVOCATE FOR R-6;
R-5, R-7, R-9, R-10, R-12 TO R-14, R-16 & R-17 ARE SERVED)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DTD:15.12.2015 ON IA NO.14 IN
NO.FDP NO.4/2004 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE AND JMFC PUTTUR TO THE EXTENT OF PASSING
OF ORDER BY THE TRAIL COURT STATING THAT IA NO.14 WILL
BE CONSIDERED ALONG WITH THE MERITS OF THE MAIN
PETITION AS PER ANNEXURE-A AND CONSQUENTLY ALLOW THE
IA NO.14 AS PRAYED FOR AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, COURT MADE THE FOLLOWING:
ORDER
I.A.No.1/16 is filed by respondent Nos.1 to 4 seeking vacating of the interim order granted by this Court. The said application is posted along with the main petition for preliminary hearing in 'B' group.
2. With the consent of learned counsel on both sides, the writ petition is heard finally.
3. Petitioner is respondent No.9 in F.D.P.No.4/2004, which is pending on the file of the Court of Civil Judge (Sr.Dn.), Puttur, D.K. The final decree -: 5 :- proceeding arises out of a preliminary decree passed in O.S.No.47/1976, dated 30/01/1980. That suit was filed by the plaintiffs seeking the relief of partition and separate possession of the suit schedule properties, which inter alia comprise of 'A' and 'B' schedule properties. 'B' schedule properties comprise of lands in Sy.Nos.222 and 223/1, which are situated at Alankar Village, Puttur Taluk. According to learned counsel for petitioner, the suit lands were leased by the State Government on 19/04/1958 in favour of defendant No.1 in the suit, that is, the father of petitioner and other respondents. That the lease was for a period of thirty years, which expired in the year 1988, but even then, petitioner and some of the respondents are in possession of the said extent of land. In the final decree proceeding, petitioner filed an application seeking deletion of 'B' schedule properties from the scope of partition and separate possession by metes and bounds. The said application was initially rejected by order dated nil. Against that order, petitioner herein had preferred W.P.No.29464/2015 before this Court. By order dated 29/09/2015, the said writ petition was disposed by quashing the impugned order and directing the trial Court -: 6 :- to reconsider the said application (I.A.No.14). The said application has been disposed of on 15/12/2015, by holding that I.A.No.14 will be considered on merits along with the main petition. Being aggrieved by that order, this writ petition has been preferred.
4. I have heard learned counsel for petitioner and learned counsel for respondent Nos.1 to 4 and 6. Other respondents are served and unrepresented. I have perused the material on record.
5. On perusal of the impugned order, it is noted that the trial Court has held that I.A.No.14 will be considered on merits along with the main petition. Petitioner's counsel contended that when the lease in respect of 'B' schedule properties has expired, the said properties are not amenable for partition and therefore, the application was filed seeking deletion of those properties and the trial Court ought to have passed an order, one way or the other, rather than postponing the hearing I.A.No.14.
6. Learned counsel for respondents, however, supported the impugned order and contended that the said -: 7 :- application could be considered at an appropriate stage and that in the suit which was filed in the year 1976 as well as in the final decree proceeding, which was filed in the year 2004, the trial Court has not appointed any Commissioner as yet, for the purpose of taking steps under Section 54 of the Code of Civil Procedure, 1908 (CPC) and that the Commissioner could take this aspect into consideration at the time of submission of report. Further the trial Court could consider the same while passing orders in the final decree proceeding.
7. Having heard learned counsel for the parties and on perusal of the material on record, it is noted that the trial Court has not dismissed I.A.No.14. Consideration of the said application has been postponed. Possibly, the trial Court thought it fit to take up the said issue after receiving the report from the Commissioner to be appointed in the matter to verify, inspect and submit report with regard to division of property by metes and bounds. In the circumstances, no prejudice has been caused to the petitioner at this stage. It is noted that the proceedings in the suit has concluded in the year 1980, after its filing in 1976 i.e., within a period of four years, -: 8 :- whereas the final decree proceeding is lingering/festering since the year 2004 till date. In the circumstances, the trial Court is directed to take steps for enforcement of the preliminary decree granted in the suit on 30/01/1980 including the appointment of Court Commissioner in terms of Section 54 of CPC and on receiving the report of the Court Commissioner to consider I.A.No.14 and thereafter to pass orders in accordance with law.
8. With the aforesaid observations and directions, writ petition is disposed.
9. In view of disposal of the writ petition, stay granted in I.A.No.1/16 stands vacated and I.A. stands disposed.
Sd/-
JUDGE S*