Allowed

Sri S R Venkataswamy v. Sri R Srinivas

Karnataka HC6 Apr 2022RFA.CROB/7/2022

Case brief

AI extract

What is this about?

This High Court allowed a cross objection challenging a final decree in partition proceedings. The Court modified the decree regarding a specific land item, clarifying that amounts allotted to certain heirs must exclude land already granted via a registered Gift Deed to other respondents who are already in possession.

What did the court decide?

The observations making independent allotment of 2,679 sq. ft. each are set aside; the petitioner and respondents 1-3 together are entitled to 2,679 sq. ft., while respondents 5 and 6 retain their 9,3

Sri S R Venkataswamy Vs Sri R Srinivas — Partition | Karnataka HC (2022)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 6^TH DAY OF APRIL, 2022

¶3

BEFORE

¶4

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

¶5

RFA CROB NO.7 OF 2022

¶6

BETWEEN:

¶7

SRI.S.R.VENKATASWAMY

¶8

S/O LATE RAMAIAH AGED ABOUT 79 YEARS R/AT NO.3, VEDIKANILAYA IV CROSS, ARALIMARA ROAD SUBBAYANAPALYA

¶9

M.S.NAGAR POST BENGALURU – 560 033.

¶10

SRI.S.R.NARAYANASWAMY S/O LATE RAMAIAH AGED 77 YEARS R/AT NO.3, NEHARU ROAD OPP. PPS SCHOOL PNS LAYOUT SUBBAYANAPALYA M.S.NAGAR POST BENGALURU – 560 033

¶11

..CROSS OBJECTORS

¶12

(BY SRI JWALA KUMAR, ADVOCATE)

¶13

AND

¶14

SRI.R.SRINIVAS S/O LATE RAMAIAH AGED 67 YEARS RESIDING AT NO.261, SUBBAYYANAPALYA BANASWADI MAIN ROAD OPP. AIYAPPA TEMPLE BENGALURU – 560 033

¶15

SRI.RAJANNA

¶16

S/O LATE RAMAIAH

¶17

¶18

AGED ABOUT 77 YEARS R/AT NO.84, SUBBAYANAPALYA BANASWADI MAIN ROAD OPP. AYYAPPA TEMPLE M.S.NAGAR POST BENGALURU – 560 033.

¶19

SRI.SAMPANGI S/O LATE SEETHAPPA AGED ABOUT 67 YEARS

¶20

SRI.SUNIL S/O LATE SEETHAPPA AGED ABOUT 39 YEARS

¶21

SMT.DIVYA D/O LATE SAMPANGI AGED ABOUT 37 YEARS.

¶22

RESPONDENT NO.3 TO 5 ARE RESIDING AT NO.135, DEVARAJ BUILDING BULLET KRISHNAPPA LAYOUT THINDLU, VIDYARANYAPURA BENGALURU – 560 097

¶23

SMT.CHANDRAKANATHA W/O RAMACHANDRAN AGED ABOUT 71 YEARS R/AT NO.482, 7^TH MAIN 80 FEET ROAD, SUBBAYANAPALYA M.S.NAGAR POST BENGALURU – 560 033

¶24

SRI.A.G.SHANMUGAM S/O GAJERAJAN AGED 71 YEARS R/AT NO.13, 7^TH CROSS PANCHAMUKI VINAYAKA TEMPLE ROAD SUBBAYANAPALYA M.S.NAGAR POST BENGALURU – 560 033

¶25

SRI.G.CHANDRA S/O LATE SEETHAPPA AGED ABOUT 42 YEARS

¶26

¶27

R/AT NO.435, 7^TH CROSS, ARALIMARA ROAD SUBBAYANAPALYA BENGALURU – 560 033

¶28

…..RESPONDENTS

¶29

(BY SRI.T.SHESHAGIRI RAO, ADVOCATE FOR R.1; SRI.N.R.JAGADEESHWARA, ADVOCATE FOR R.2;

¶30

SRI.RAGHAVENDRA V, ADVOCATE FOR R.5;

¶31

SRI.CHANDRA SHEKAR R, ADVOCATE FOR R.6 AND R.7;

¶32

SRI.H.S.SANTHOSH, ADVOCATE FOR R.8

¶33

R3 AND 4 NOT NECESSARY)

¶34

THIS RFA CROB IS FILED UNDER ORDER 41 RULE 22 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 21.10.2021 PASSED IN FDP NO.55/2016 (OS NO.4475/1984) ON THE FILE OF THE V ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION 54 OF CPC.

¶35

THIS RFA CROB COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶36

ORDER

¶37

This Cross Objection No.7/2022 is filed by the

¶38

respondent Nos. 5 and 6 in FDP NO.55/2016, who have questioned the Final Decree Proceedings in FDP No.55/2016, in so far as granting 2679 square feet each independently to the petitioner and respondent Nos.1 to 3.

¶39

For the sake of convenience, the parties are

¶40

referred as per their ranks before the Trial Court.

¶41

¶42

The respondent Nos.5 and 6 are asserting

¶43

their rights on the basis of registered Gift Deed executed by Ramaiah in respect of item No.7 of Sy.No.203 measuring 11 gunta, which works out to 11,979 square feets. The said Gift Deed was upheld by this Court in R.F.A.No.904/2002. The present Cross appeal is filed on the ground that though the FDP Court has taken judicial note of the Gift Deed executed by Ramaiah in favour of respondent No.5 and 6, but, however, while working out feasibility in item No.7, the Court has miscalculated extent and therefore, they claim that the same has caused injustice. The second grievance addressed by the respondent Nos.5 and 6 is that the Cross Objector pursuant to the Gift Deed are in exclusive possession to an extent of 9,300 square feets. Therefore, Final Decree Court erred in ordering for taking possession thereby indicating that respondent Nos.5 and 6 have again initiated proceedings, which was unwarranted in the present case on hand.

¶44

¶45

On these set of grounds, learned counsel

¶46

appearing for the Cross Objectors would contend that the operative portion of the order passed by the FDP Court in FDP No.55/2016 is contrary to extent reflected in the registered Gift Deed and also findings recorded by this Court in R.F.A.No.904/2002. If respondent Nos.5 and 6 are entitled for an area measuring 9,300 square feets in terms of the registered Gift Deed, the balance extent, which is retained by the plaintiffs family is only 2,679 square feets and therefore, he would contend that in the remaining 2,679 square feets, the petitioners and respondent Nos. 1 to 3 are entitled for share.

¶47

5. Learned counsel appearing for the petitioner

¶48

in FDP No.55/2016 would fairly submit that there is no

¶49

claim in respect of item No.7 is concerned. He fairly submits to this Court that respondent Nos.5 and 6 in terms of the Gift Deed are entitled for an area measuring 9,300 square feets out of the total area measuring 11,947 square feets. Arguing in the same vein, learned counsel for the respondent Nos.4 to 7

¶50

¶51

would not seriously object in so far as the Final Decree

¶52

proceedings pertaining to item No.7 is concerned.

¶53

Heard learned counsel appearing for the Cross Objectors and learned counsel appearing for respondent Nos.4 to 7.

¶54

The short point that would arise for

¶55

consideration before this Court is that;

¶56

“Whether Trial Court erred in allotting

¶57

2,679 square feets each to the petitioner and respondent Nos.1 to 3 without excluding the extent reflected in the Gift Deed?”

¶58

It would be useful for this Court to cull out para No.40 of the judgment in FDP No.55/2016 and the same reads as follows;

¶59

“40. With regard to item No.7 schedule land bearing Sy. No.203 measuring 11 guntas i.e., 11,979 square feet is concern as per the sketch furnished by the petitioner, it has been proposed to allot to the extent of 2679 square feet each in favour of respondent No.1 –

¶60

¶61

Ramaiah, petitioner – R.Srinivas, respondent No.2 – R.Rajanna and respondent No.3 – R.Nagarathna respectively. The Court Commissioner has shown in Ex.C.26(a) sketch stating that petitioner is entitled for his 1/4^th share to the extent of 2,679 square feet in item No.7 referred supra towards the property of Lakshmaiah as shown by letters BEFGC, which appears to be convenient to enjoy the same by petitioner and remaining portion to the extent of 2679 square feet towards the property of Peddamma by the respondent Nos.1, 2 and LRs of respondent No.3 respectively. It is made clear that as per the observation of Hon’ble High Court in RFA No.904/2002 dated 27.01.2005 respondent Nos.5 and 6 are entitle to take possession/retain the portion of property gifted to the extent of 62x150 feet in respect of item No.7 in Sy. No.203 of Subbanna Palya as per the sketch prepared by the respondent No.6 accordingly.”

¶62

The last three lines of the said paragraph would clinch the issue. The FDP Court has taken judicial note of the fact that respondent Nos.5 and 6 have succeeded based on the registered Gift Deed to an extent of 6x155, which works out to 9,300 square feet. Therefore, in the remaining 2,679 extent, the

¶63

¶64

petitioner and respondent Nos.1 to 3 together would take the remaining portion and not independently as reflected in para 40 of the judgment. Therefore, on perusal of the said statement, this Court would find that there is some error in paragraph No.40 and the same is inconsistent with findings recorded page No.25 and at the operative portion at para No.75. The Final Decree Court has also erred in directing respondent Nos.5 and 6 to take possession in terms of Final Decree. The materials on record clearly indicate that respondent Nos.5 and 6 based on the registered Gift Deed are already in possession of 9,300 square feet. Therefore, I am of the view that the observations made by the FDP Court at page No.25 directing respondent Nos.5 and 6 to take possession was unwarranted. On these two counts, final decree drawn by the Trial Court in so far as item No.7 needs modification.

¶65

The grounds urged in the cross objection are sustainable and in this background, the observations made at para No.40 needs certain clarifications. Accordingly, I pass the following

¶66

¶67

ORDER

¶68

This RFA Cross Objection is allowed .

¶69

The observations made at para No.40 of the judgment allotting 2,679 square feets each to the petitioner and respondent Nos.1 to 3 is set-aside.

¶70

It is, therefore. held that the petitioner and respondent Nos.1 to 3 together are entitled to take share to an extent of 2,679 square feets and the remaining extent i.e., 9,300 square feets, which is covered under the registered Gift Deed in favour of respondent Nos.5 and 6 stands allotted to respondent Nos.5 and 6, who are already in possession.

¶71

With these observations, final decree in so far as item No.7 is concerned stands modified.

¶72

Office is, accordingly, directed to draw a fresh decree in terms of the observations made by this Court.

¶73

Sd/JUDGE

¶74

NBM

Sri S R Venkataswamy v. Sri R Srinivas

Case brief

What is this about?

What did the court decide?

Sri S R Venkataswamy v. Sri R Srinivas

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri S Venkatesh Vs Sri Khodandarama

Kumaraswamy Vs H S Puttamadappa

Smt. M Leelavathi Vs Smt. Yeshodamma

Smt P G Sowmya Vs Sri P G Sreehari

Sri Lokanath Vs Smt. Siddamma

B B Ganapathy Vs the Dhanalakshmi Bank Limited