Dismissed

B H Gangadharappa Gowda S/O Devappa Gowda v. Sharadamma W/O Late Ningoji Rao

Karnataka HC4 Mar 2021RSA/1744/2006

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Karnataka rejected the appellant's challenge to an order moulding relief to grant partition. The court held the First Appellate Court was justified in decreeing partition under Order VII Rule 7 CPC to prevent further litigation, even though the plaintiff had not specifically prayed for it, finding the defendants only sold their half share.

What did the court decide?

The Regular Second Appeal was dismissed, upholding the First Appellate Court's award of half share each to the plaintiff and defendant No.3 via partition.

B H Gangadharappa Gowda S/O Devappa Gowda Vs… — Succession and Inheritance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF MARCH, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY

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R.S.A. NO.1744 OF 2006 (INJ)

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BETWEEN:

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B.H. GANGADHARAPPA GOWDA S/O DEVAPPA GOWDA AGED ABOUT 55 YEARS R/O LAKKAVALLI, ANANDAPURAM HOBLI, SAGAR TALUK, SHIMOGA DISTRICT.

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...APPELLANT

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(BY SRI. ADITHYA KUMAR H.R., ADVOCATE)

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AND:

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SHARADAMMA W/O. LATE NINGOJI RAO, AGE: MAJOR, R/O BELANDURU, KEREHALLI HOBLI, HOSANAGARA TALUK, SHIMOGA DISTRICT.

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MANJAMMA W/O. LATE NINGOJI RAO, AGE: MAJOR, R/O BELANDURU, KEREHALLI HOBLI,

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HOSANAGARA TALUK, SHIMOGA DISTRICT.

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K.S. NINGOJI RAO S/O LATE NINGOJI RAO, AGE: MAJOR, R/O BELANDURU, KEREHALLI HOBLI, HOSANAGARA TALUK, SHIMOGA DISTRICT.

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…RESPONDENTS

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(BY SRI. J.N.NAVEEN, ADVOCATE FOR SRI. A.NAGARAJAPPA, ADVOCATE FOR RESPONDENT NO.1;

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NOTICE SERVED ON RESPONDENT NO.2 BUT UNREPRESENTED; SERVICE OF NOTICE ON RESPONDENT NO.3 IS HELD SUFFICIENT VIDE COURT ORDER DATED 17.02.2012)

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND DECREE DATED 04.03.2006 PASSED IN R.A.NOs.333/2004 & 345/2004 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, SHIMOGA, PARTLY ALLOWING R.A.NO.333/2004 AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 22.07.1995, PASSED IN O.S.NO.482/1991 ON THE FILE OF THE PRINCIPAL MUNSIFF, SAGAR AND DISMISSING R.A.NO.345/2004 AND CONFIRMING THE JUDGMENT AND DECREE DATED 22.07.1995 PASSED IN O.S.NO.482/1991 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, SAGAR.

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THIS R.S.A. COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the defendant No.3 in O.S.No.482/1991 challenging the Judgment and Decree dated 04.03.2006 passed by the First Appellate Court in R.A.No.333/2004 by which the First Appellate Court reversed the Judgment and Decree passed by the Trial Court in O.S.No.482/1991.

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The parties shall henceforth be referred to as they were arrayed before the Trial Court. The appellant herein was the defendant No.3 while respondent No.1 was the plaintiff and respondents No.2 and 3 were defendants No.1 and 2 in the suit.

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The plaint discloses that the plaintiff and defendant No.1 were two wives of Ningoji Rao, while the defendant No.2 was the son of the defendant No.1. It is stated that Ningoji Rao possessed the land bearing Sy.No.51 totally measuring 1 acre 4 guntas. After his death, this land was possessed by the plaintiff and that she

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was in lawful possession and cultivation of the aforesaid land. She stated that for the year 1989-90 and 1990-91 as per the agreement between the plaintiff and defendant No.1, the plaintiff continued to be in lawful possession and enjoyment of the aforesaid property. She claimed that later there were differences between the plaintiff and the defendant No.1 and the defendants No.1 and 2 with an intention to defraud the plaintiff entered into an agreement of sale in respect of the aforesaid land in favour of defendant No.3 for a total sale consideration of Rs.16,000/- and had received a sum of Rs.10,000/- as part of the sale consideration. She stated that without disclosing this sale agreement, the defendant No.1 also executed an agreement in favour of the plaintiff on 08.05.1991 agreeing to relinquish all her right, title and interest in the property for a sum of Rs.6,501/- and had received the said amount from the plaintiff. She further contended that the defendant No.3 filed a suit for specific performance in O.S.No.401/1991 and that the defendants No.1 and 2 colluded with defendant No.3 in agreeing to

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execute a sale deed which resulted in a compromise decree in O.S.No.401/1991. Therefore, she contended that the said decree did not bind her right, title and interest in the suit property and thus sought for a declaration that she is the owner of the suit property and for consequential relief of injunction.

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The defendants No.1 and 2 though served with the notice did not contest the suit.

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The defendant No.3 filed his written statement and contended that the suit property belongs to defendants No.1 and 2 who had executed an agreement of sale dated 24.04.1991 agreeing to sell the suit property for a total sale consideration of Rs.16,000/- and had received an earnest money of Rs.10,000/-. He also contended that since the defendants No.1 and 2 failed to perform their part of the contract, he filed O.S.No.401/1991 and that the defendants No.1 and 2 entered appearance and agreed to perform their part of the contract which resulted in a compromise decree. He

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contended that since defendants No.1 and 2 failed to execute the sale deed, he had taken out execution proceedings. He contended that the defendants No.1 and 2 had sold the suit property at the market value and had handed over possession of the suit property to the defendant No.3. He contended that the plaintiff and defendants No.1 and 2 were separated members of the joint family and that as on 24.04.1991 the suit property was in the exclusive possession and enjoyment of the defendants No.1 and 2.

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Based on these rival contentions the Trial Court framed the following issues:

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1. zÁªÁ ¸ÉÆvÀÄÛ vÀ£Àß ªÀÄvÀÄÛ 1£ÉÃ ¥ÀæwªÁ¢AiÀÄ ªÀiÁ°ÃPÀvÀéPÉÌ ¸ÉÃj¢ÝvÀÄÛ CAvÀ ªÁ¢ ¹zÀÝUÉÆ½¸ÀÄªÀgÉÃ?

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1. ¢: 8-5-91 gÀAzÀÄ 1£ÉÃ ¥ÀæwªÁ¢AiÀÄ ªÀw¬ÄAzÀ gÀÆ.650100 ¥ÀqÉzÀÄ zÁ. ¸ÉÆwÛ£À°è vÀ£ÀVgÀÄªÀ ºÀPÀÄÌ £À²¹ ºÉÆÃVzÉ CAvÀ MAzÀÄ CVæªÉÄAl£ÀÄß ¸ÁQëzÁgÀgÀ ¸ÀªÀÄPÀëªÀÄ 1£ÉÃ ¥ÀæwªÁ¢ §gÉzÀÄPÉÆnÖgÀÄªÀgÀÄ EzÀgÀ ªÉÄÃ°AzÁ vÁ£ÉÃ FUÀ

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zÁ. ¸ÉÆwÛ£À ¸ÀA¥ÀÆtð ºÀPÀÄÌzÁgÀgÀÄ CAvÀ ªÁ¢

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¹zÀÝUÉÆ½¸ÀÄªÀgÉÃ?

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1. ªÁ¢AiÀÄÄ zÁªÉ zÁR®Ä vÁjÃT¤AzÁ zÁ. ¸ÉÆwÛ£À PÁ£ÀÆ£ÀÄ§zÀÞªÁzÀ ¸Áé¢üÃ£ÀªÀ£ÀÄß ºÉÆA¢gÀÄªÀgÉAzÀÄ ¹zÀÝUÉÆ½¸ÀÄªÀgÉÃ?

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1. zÁ. ¸ÉÆwÛ£À ªÁ¢AiÀÄ ªÉÊªÁnUÉ ¥ÀæwªÁ¢UÀ¼ÀÄ CrØ DvÀAPÀUÉÆ½¸ÀÄwÛgÀÄªÀgÀÄ CAvÀ ªÁ¢ ¹zÀÝUÉÆ½¸ÀÄªÀgÉÃ?

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3£ÉÃ ¥ÀæwªÁ¢ 1 ªÀÄvÀÄÛ 2£ÉÃ ¥ÀæwªÁ¢UÀ¼ÉÆA¢UÉ «Ä¯Á¦AiÀiÁV zÁªÁ ¸ÉÆwÛ£À §UÉÎ MAzÀÄ PÀæAiÀÄzÀ PÀgÁgÀÄ¥ÀvÀæªÀ£ÀÄß ªÀiÁr¹PÉÆAqÀÄ DªÉÄÃ¯É EzÉÃ PÉÆÃnð£À¯ÉèÃ ªÀÄÆ.zÁ.401:91 £ÀÄß ¸Éà¹¦üPï ¥sÀgÀ¥sÁªÀÄð£ïì D¥sï PÁAmÁæPïÖ §UÉÎ ºÁQ PÉÆ®Æå¹ªï rQæ ¥ÀqÉ¢gÀÄªÀgÀÄ CzÀÄ vÀ£Àß ªÉÄÃ¯É ¨ÁAzÁ¬Ä¸ÀÄªÀÅ¢®è CAvÀ ªÁ¢ ¹zÀÝUÉÆ½¸ÀÄªÀgÉÃ?

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1. EzÉÃ PÉÆÃnð£À ªÀÄÆ.zÁ.401:91 £ÉÃzÀÝgÀ°è DVgÀÄªÀ rQæ vÀ£Àß ªÉÄÃ¯É ¨ÁAzÁ¬Ä¸ÀÄªÀÅ¢®è CAvÀ ªÁ¢ rPÀègÉÃlj j°Ã¥sï PÉÃ¼ÀzÉÃ vÀA¢gÀÄªÀ zÁªÉ PÁ£ÀÆ£ÀÄ ¥ÀæPÁgÀ £ÀqÉAiÀÄvÀPÀÌ¢ÝzÉAiÉÄÃ?

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1. ªÁ¢ ¨ÉÃrzÀAvÉ WÉÆÃµÀuÉAiÀÄ §UÉÎ rQæ ¥ÀqÉAiÀÄ®Ä CºÀðjgÀÄªÀgÉÃ?

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1. ªÁ¢ ¨ÉÃrzÀAvÉ SÁ ‘ªÀiÁ’ ºÀÄPÀÄA §UÉÎ rQæ ¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ?

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1. AiÀiÁªÀ rQæ E®èªÉÃ DeÉÕ?

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The son of the plaintiff was examined as PW.1 and a witness was examined as PW.2 and they marked documents Exs.P1 to 2. Per contra , the defendant No.2 was examined as DW.1 and the defendant No.3 was examined was DW.2 and they marked documents as Exs.D1 to D9.

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Based on the oral and documentary evidence,

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the Trial Court held that the total extent of property available in Sy.No.51 was 2 acres 4 guntas out of which 1 acre was granted to a stranger named Thimmappa and that effectively, 1 acre 4 guntas was available to the plaintiff and defendant No.1. The Trial Court also held that the plaintiff had an undivided right, title and interest in the suit property and that the defendants No.1 and 2 had sold the entire property to the defendant No.3 without the consent of the plaintiff. The Trial Court also noticed the

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contention of the plaintiff that the defendant No.1 had executed an agreement dated 08.05.1991 and rejected the same since the said document which is in the form a relinquishment deed was not registered in accordance with law.

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Further, the Trial Court held that the plaintiff being the undivided owner of the suit property, the compromise decree obtained by the defendant No.1 in O.S.No.401/1991 did not bind the right, title and interest of the plaintiff in the suit schedule property. The Trial Court also held that the defendant No.3 had lawfully purchased the share of the defendants No.1 and 2 in terms of the sale deed and therefore, the suit for declaration as against the defendant No.3 was not maintainable at the instance of the plaintiff and therefore the Trial Court dismissed the suit.

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Being aggrieved by the aforesaid Judgment and Decree of the Trial Court, the plaintiff filed R.A.No.333/2004 before the First Appellate Court. First

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Appellate Court secured the records of the Trial Court, heard the counsel for parties and after framing points for consideration held that the plaintiff and the defendant No.3 were joint owners of the suit property and therefore, the plaintiff was not entitled for the relief of declaration of title in respect of the entire estate. The First Appellate Court exercised power under Order VII Rule 7 of the Code of Civil Procedure, 1908 by moulding the relief and granted the relief of partition declaring that the plaintiff is entitled to half share in the suit schedule property.

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Being aggrieved by the Judgment and Decree of the First Appellate Court, the defendant No.3 has filed this Regular Second Appeal. This appeal was admitted by this Court to consider the following substantial question of law:

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“Whether the First Appellate Court is correct and justified in granting half share in the suit schedule property in favour of first respondent – plaintiff by moulding the relief though she has not claimed for partition and separate possession?”

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I have perused the records of the Trial Court

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as well its Judgment and Decree. I have also perused the Judgment and Decree passed by the First Appellate Court.

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I have heard the counsel for the parties and I have also perused the grounds urged by the appellant/defendant No.3 in this appeal.

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Before considering the facts of the case, it is relevant to note the extent of the powers of the civil Court under Order VII Rule 7 of Code of Civil Procedure, 1908 to mould the relief

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“7. Relief to be specifically stated. - Every Plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.”

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The apex Court in the case of M. Siddiq (Dead) Through Legal Representatives (Ram

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Janmabhumi Temple Case) Vs. Mahant Suresh Das and others reported in (2020) 1 SCC 1 held as follows:

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“1228. In Srinivas Ram Kumar v. Mahabir Prasad (AIR 1951 SC 177), a three-Judge Bench of this Court held that it is not open to the court to grant relief to the plaintiff on a case for which there is no basis in the pleadings. Justice B.K.Mukherjea, J. held: (AIR pp.179-80, para 9)

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“9...The question, however, arises whether, in the absence of any such alternative case in the plaint is it open to the court to give him relief on that basis. The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet.”

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This principle was reiterated in the judgment of the Constitution Bench in Sri Venkataramana Devaru v. State of Mysore (AIR 1958 SC 255), Justice Venkatarama Aiyar, J. speaking for this Court held (AIR p.263, para 14) :

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“14…The object of requiring a party to put forward his pleas in the pleadings is to enable the opposite party to controvert them

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and to adduce evidence in support of his case. And it would be neither legal nor just to refer to evidence adduced with reference to a matter which was actually in issue and on the basis of that evidence, to come to a finding on a matter which was not in issue, and decide the rights of parties on the basis of that finding.”

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1229. The High Court has adopted a path which was not open to it in terms of the principles formulated above. It granted reliefs which were not the subject matter of the prayers in the suits. In the process of doing so, it proceeded to assume the jurisdiction of a civil court in a suit for partition, which the suits before it were not. Order 7 Rule 7 of the CPC provides thus:

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“7. Relief to be specifically stated -

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Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.”

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The above provision requires a plaintiff to specifically claim either simply or in the alternative the relief, which is sought. However, it clarifies that it is not necessary to ask for general and other reliefs which may always be given in the discretion of the court. This provision does not entitle the court in a civil trial to embark upon the exercise of recasting virtually the frame of a suit, which was undertaken by the High Court. There was no basis in the pleadings before the High Court and certainly no warrant in the reliefs which were claimed to direct a division of the land in the manner that a court would do in a suit for partition.

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1230. As S.B. Sinha, J. held while speaking for a two-Judge Bench of this Court in Shiv Kumar Sharma v. Santosh Kumari [(2007) 8 SCC 600] (SCC p.608, para 27)

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“27. A court of law cannot exercise its discretionary jurisdiction dehors the statutory law. Its discretion must be exercised in terms of the existing statute.”

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[See also in this context the judgment of Ashok Bhan, J. in Shamsu Suhara Beevi v G Alex (2004) 8 SCC 569].

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In Om Prakash v Ram Kumar (1991) 1 SCC 441, M. Fathima Beevi, J. speaking for a three-Judge Bench held: (SCC p.445, para 4)

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“4. … A party cannot be granted a relief which is not claimed, if the circumstances of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute.”

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1231. The High Court has completely erred in granting relief which lay outside the ambit of the pleadings and the cases set up by the plaintiffs in Suits Nos.3, 4 and 5.”

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Now having regard to the circumstances of the

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case, it is clear that the husband of the plaintiff and the defendant No.1 was the owner of the property measuring 1 acre 4 guntas in Sy.No.51. Therefore, it is clear that upon the death of the husband of plaintiff and defendant No.1, the plaintiff and defendant No.1 would have succeeded to the property in equal shares. In that view of the matter, the Trial Court and the First Appellate Court have rightly held that the defendants No.1 and 2 could not have sold

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off the entire estate to defendant No.3. The Trial Court and the First Appellate Court have rightly held that the sale by the defendants No.1 and 2 in favour of the defendant No.3 would not bind the right, title and interest of the plaintiff in the suit schedule property. The pleadings on record would indicate that the plaintiff had set up title being the heir of Krishnoji Rao. She also claimed that she was in possession and cultivation along with the defendant No.1. Therefore, the plaintiff and defendant No.1 were the co-owners of the property. The defendants No.1 and 2 having sold the entire extent of the property, it is to be deemed that they have sold what they possessed and not beyond. It is clear that the defendants No.1 and 2 had only had only half share in the suit schedule property and therefore, the defendants No.1 and 2 could have only sold the half undivided share in the suit property to the defendant No.3. The First Appellate Court was right in holding that the plaintiff is entitled to the relief of declaration that the compromise decree obtained by the defendant No.3 in O.S.No.401/1991 did not bind the right, title and interest

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of the plaintiff in the suit schedule property. Therefore, the First Appellate Court in order to shoot down any further litigation between the parties had exercised jurisdiction under Order VII Rule 7 of C.P.C. and had passed a preliminary decree of partition declaring that the plaintiff and defendant No.3 are entitled to half share in the suit schedule property. The First Appellate Court was thoroughly justified in passing a judgment and there was no illegality in the order passed by the First Appellate Court in declaring that the plaintiff and defendant No.3 were entitled to half share in the suit schedule property. As the Court had moulded the relief based on the pleadings of the parties, in an attempt to shoot down litigation between the parties in future. At any rate, even if any litigation was undertaken by any of the parties, the plaintiff and the defendant No.3 would ultimately have received only half share in the suit schedule property.

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In view of the above, the substantial question

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of law framed by this Court is answered in negative and it

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is declared that the First Appellate Court was justified in decreeing the suit for partition though such a relief was not sought for by the plaintiff in the suit.

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In that view of the matter, this Regular Second Appeal fails and is dismissed .

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Sd/JUDGE

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hnm

B H Gangadharappa Gowda S/O Devappa Gowda v. Sharadamma W/O Late Ningoji Rao

Case brief

What is this about?

What did the court decide?

B H Gangadharappa Gowda S/O Devappa Gowda v. Sharadamma W/O Late Ningoji Rao

Case brief

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