Karnataka High Court
Smt Obamma vs Sri Boraiah on 20 August, 2019
Author: B.M.Shyam Prasad
Bench: B M Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 20TH DAY OF AUGUST, 2019
BEFORE
THE HON'BLE MR. JUSTICE B M SHYAM PRASAD
R.S.A. NO. 210 OF 2018
Between:
1. Smt Obamma
W/o Late Boraiah
Aged about 66 years
2. Sri Boraiah
S/o Late Boraiah
Aged about 42 years
3. Sri Channaiah
S/o Late Boraiah
Aged about 41 years
4. Sri Thippaiah and Thippeswamy
S/o Late Boraiah
Aged about 39 years
(as per Court order dated 25.02.2019)
5. Smt Thippamma
D/o Late Channaiah
Aged about 71 years
6. Smt Obamma
D/o Late Channaiah
Aged about 69 years
7. Smt Boramma
D/o Late Channaiah
Aged about 63 years
2
8. Sri Bangaraiah
S/o Late Channaiah
Aged about 66 years
9. Sri Bada Boraiah
S/o Late Channaiah
Aged about 56 years
All are residing at
Budanahatti Village,
Challakere Taluk - 577 522
Chitradurga District
... Appellants
(By Sri.B.M.Siddappa, Advocate)
And:
1. Sri Boraiah
S/o Late Mukkadi Boraiah
Aged about 66 years
Residing at Budanahatti village
Challakere Taluk - 577 522
Chitradurga District
2. Smt. Boramma
D/o Late Mukkadi Boraiah
Aged about 63 years
Residing at Kurininganahatti
Challakere Taluk - 577 522
Chitradurga District ... Respondents
(By Sri.R Shashidhara, Advocate for R1 and R2)
This Regular Second Appeal is filed under Section
100 of CPC, against the judgment and decree dated
05.12.2017 passed in RA No.13/2017 on the file of the
Senior Civil Judge and J.M.F.C. at Challakere dismissing
the appeal and confirming the order dated 29.09.2016
passed in FDP No.1/2009 on the file of the Principal Civil
Judge and J.M.F.C., Challakere and etc.
3
This appeal coming on for admission, this day, the
court delivered the following:-
JUDGMENT
This appeal is filed by the respondents/defendants in the final decree proceedings in FDP.No.2/2009 on the file of the Civil Judge and JMFC, Jr.Dn. Challakere calling in question the judgment dated 05.12.2017 in R.A.No.13/2017 on the file of the Senior Civil Judge and JMFC, Challakere.
2. The undisputed facts are that the respondents' suit for partition in OS.No.248/1975 is decreed, and this decree is confirmed in RA.No.24/1981 and subsequently, in R.S.A.No.727/1991. The respondents have initiated final decree proceedings under Order XX Rule 18 read with Section 54 of the Code of Civil Procedure, 1908 ('CPC' for brevity) for drawing up of final decree and for partition of the suit schedule property by metes and bounds in the manner known to law. The Final Decree Court appointed a Commissioner, who has filed his Report along with the 4 sketch. The Commissioner's Report along with the sketch is accepted and final decree is directed to be drawn accordingly. The appellants called in question the order of the Final Decree Court dated 29.09.2016 in the aforesaid regular appeal in RA.No.13/2017. The appellants challenged the order of the Final Decree Court on multiple grounds. However, the Appellate Court has dismissed the appeal confirming the order of the Final Decree Court but while confirming the order of the Final Decree Court, the Appellate Court has issued a certain set of directions. The appellants are aggrieved by the directions and as such, the present second appeal.
3. The learned counsel for the appellants, at the very outset submits that the appellants are not aggrieved by the terms of the Commissioner's Report/sketch or the acceptance thereof by the Final Decree Court or confirmation of the same by the Appellate Court. The appellants grievance is only as regards the set of directions issued by the Appellate Court. The Appellate Court's order insofar as the directions issued reads as under:- 5
"The Order passed by the Civil Judge Jr.Dn.Clk, in FDP.1/2009 dtd.28-9-2016 is confirmed.
Commissioner's report filed by the Tahasildar is in accordance with the judgment and decree passed in OS No.248/1975 dtd.24-1-1981.
The same is accepted.
Issue intimation to the Tahasildar to effect the entries in the revenue records as per the survey sketch he produced.
The respondents are directed to get their respective share allotted to them as per the sketch, at once.
The respondents are directed to file necessary execution petition for obtaining the possession of the same, if the appellants are not handed over the possession within a month from today or cause any obstruction.
The appellants are directed to pay Rs.5,000/- per day to the respondents till they hand over the possession of the property/ties allotted to respondents as per the commissioner's report and sketch, after a month.
The respondents are directed to pay the proper stamp for drawing up final decree and to present before Sub-Registrar for registration in accordance with provision of Registration Act."6
4. The learned counsel for the appellants submits that the Appellate Court could only have confirmed drawing up of final decree in terms of the orders of the Final Decree Court, and the Appellate Court could not have issued directions to deliver possession, or further directed the appellants to pay a sum of Rs.5,000/- per day if they do not deliver possession of the parties as decreed to the respondents in terms of the final decree within a period of 30 days, or for that matter the Appellate Court could not have directed the respondents to pay stamp duty for drawing up of final decree and to present the final decree for registration. The learned counsel emphasizes that it is trite that after the final decree is drawn, the concerned will have to initiate necessary proceedings under Order XXI of CPC for recovery of possession.
5. The learned counsel further submits that the direction to pay a sum of Rs.5,000/- per day is even otherwise unjustified, especially when there is no order for mesne profits. The direction to pay a sum of Rs.5,000/- 7 per day from the lapse of the 30th day as mentioned in the directions is an overreach by the Final Decree Court.
6. In the light of the submissions, the substantial question that arises for consideration is, "Whether the Appellate Court could have directed the respondents to deliver possession of the property within 30 days or in the default, pay a sum of Rs.5,000/- per day of delay in a petition filed under Order XX Rule 18 of CPC."
7. The learned counsel for the appellants, though contends that the Appellate Court could not have simultaneously directed the respondents to file execution case and also pay a sum of Rs.5,000/- for every day's delay beyond the 30 days from the date of the Appellate Court's order, does not dispute that the appellants will have to yield possession in terms of the final decree in an appropriately instituted proceedings under Order XXI of CPC. Even otherwise, there cannot be any dispute about the same. The direction to the respondents to file execution 8 proceedings is superfluous inasmuch as the respondents would indeed be entitled to file such execution proceedings to recover possession in terms of final decree. But the direction to pay Rs.5,000/- per day is impermissible in view of the settled law that in a final decree proceedings, subject to permissible exceptions like, correction of obvious errors in preliminary decree, the Court cannot traverse beyond the final decree. The direction by the appellate Court to pay a sum of Rs.5,000/- per day would not come in that category. As such, the Appellate Court could not have issued this direction. The substantial question is answered accordingly.
8. The appeal is allowed in part, the appellate Court's judgment as regards the direction to deliver possession and to pay a sum of Rs.5,000/- per day is modified by setting aside these directions and observing that the respondents will be entitled to seek for drawing up of the final decree and registration thereof as well as initiate out execution proceedings for separate possession by metes and bounds in accordance with law. 9
Ordered accordingly.
SD/-
JUDGE RB