Dismissed

Mohammed K a v. Abbas

Karnataka HC21 Feb 2022RSA/392/2015

Case brief

AI extract

What is this about?

The High Court dismissed a Regular Second Appeal challenging the Final Decree Proceedings in a partition suit. The court held that the appellant failed to explain the condonation of delay and no substantial question of law existed as the lower courts had considered the merits and protected the purchaser's interest.

What did the court decide?

Regular Second Appeal No.392/2015 dismissed; judgment and decree of first appellate court confirmed.

Mohammed K a Vs Abbas — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF FEBRUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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REGULAR SECOND APPEAL NO.392 OF 2015 (RES)

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BETWEEN:

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MOHAMMED K. A., S/O ADAM KUNHI, AGED ABOUT 49 YEARS, R/O KADABA VILLAGE, PUTTUR TALUK, D.K. DISTRICT – 571 249.

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... APPELLANT

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(BY SRI.MOIDEEN ARAFAT, ADVOCATE FOR SRI.SACHIN B.S., ADVOCATE)

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AND:

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ABBAS, S/O ABBU BEARY, AGED ABOUT 55 YEARS, R/O SANJAY NAGAR, KOORNADAKA, KEMMINJE VILLAGE, POST DARBE, PUTTUR TALUK, D.K. – 571 249.

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SMT. SARAMMA, W/O LATE ABBU BEARY, AGED ABOUT 85 YEARS, R/O PERIYADKA, KASABA VILLAGE, PUTTUR TALUK D.K. – 571 249.

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SMT. BEEPATHUMMA, D/O LATE ABBU BEARY, AGED ABOUT 85 YEARS,

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R/O KUDALADDA HOUSE, ARYAPU VILLAGE AND POST, PUTTUR TALUK, D.K. – 571 249.

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SMT. KHATIJ, D/O LATE ABBU BEARY, AGED ABOUT 54 YEARS, R/O AMMUNJE HOUSE, ARYAPU VILLAGE, PUTTUR TALUK. D.K. – 571 249.

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SMT. NEBISA, D/O LATE ABBU BEARY, AGED ABOUT 53 YEARS, R/O PANJA, POST PANJA, SULLIA TALUK, D.K. – 571 249.

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SRI. LATEEFA, S/O LATE ABBU BEARY, AGED ABOUT 48 YEARS, R/O MANIA HOUSE, PURUSHARAKATTE POST, NARIMOGRU VILLAGE, PUTTUR TALUK, D.K. – 571 249.

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ABDUL AZEEZ, S/O LATE ABBU BEARY, AGED ABOUT 45 YEARS, R/O PERIYADKA, KASABA VILLAGE, PUTTUR TALUK, D.K. – 571 249.

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MOHAMMED ASHRAF, S/O LATE ABBU BEARY, AGED ABOUT 43 YEARS, R/O PERIYADKA,

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KASABA VILLAGE, PUTTUR TALUK, D.K. – 571 249.

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NAZEER, S/O LATE ABBU BEARY, AGED ABOUT 38 YEARS, R/O PERIYADKA, KASABA VILLAGE, PUTTUR TALUK, D.K. – 571 249. 10. ADAM HAJI S/O LATE AHAMMED, AGED ABOUT 75 YEARS, R/O AITHOOR VILLAGE, PUTTUR TALUK, D.K. – 571 249.

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…RESPONDENTS

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(BY SRI.K.SHRIHARI, ADVOCATE FOR R1; R4, R6, R8, R10 ARE SERVED; SRI.ANANDITHA SRINIVASAN, ADVOCATE FOR R7; NOTICE ON R2 HELD SUFFICIENT VIDE ORDER DATED 17.10.2019; NOTICE TO R3, 5 AND 9 IS HELD SUFFICIENT VIDE ORDER DATED 31.05.2021)

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THIS APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 23.1.2015 PASSED IN R.A.NO.101/2012 ON THE FILE OF V ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE, SITTING AT PUTTUR, D.K., DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 21.4.2011 PASSED IN FDP.No.1/1998 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, PUTTUR, D.K., ACCEPTING THE COURT COMMISSIONER REPORT AND HIS FINAL DELIVERY REPORT, CONSEQUENTLY DRAWING FINAL DECREE.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This second regular appeal is filed by the appellant aggrieved by the judgment and decree dated 23/01/2015 passed in R.A.No.101/2012 on the file of the V Additional District and Sessions Judge, D.K., Mangalore sitting at Puttur, D.K. (for short hereinafter referred to as 'the first appellate court') in and by which, the first appellate court while dismissing the application filed under Section 5 of the Limitation Act and also dismissed the appeal.

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Originally a suit in OS.No.59/1995 filed by respondent No.1 herein against respondent Nos.2 to 9 on the file of Civil Judge (Senior Division) and Additional C.J.M., Puttur, D.K (for short hereinafter referred to as 'the Trial court') for relief of partition and separate possession which was decreed on 20.08.1997. Thereafter, a Final Decree Proceedings

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was initiated in FDP.No.1/1998. During the pendency of the FDP proceedings, the appellant herein who had purchased 3 acres 5 cents of land bearing Sy.No.67/1A, forming part of Item No.3 of plaint schedule property in terms of a registered deed of sale on 12/08/2005 bearing document No.715/2005-06 from respondent Nos. 2 to 8 herein represented by respondent No.9 as their power of attorney holder. The appellant who was not a party in the said original suit had got himself impleaded in the Final Decree Proceeding as respondent No.10 vide order dated 03.07.2010.

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A Court Commissioner was appointed who filed his report dated 15.02.2011 regarding allotment of shares. The appellant herein had filed his objections. The trial Court by its order dated 05.04.2011 had accepted the report of the Commissioner and had rejected the objections of the

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appellant herein. The trial Court had directed the Commissioner to deliver the possession of the property as per his proposed allotment to the parties and had also issued delivery warrant to the Court Commissioner and posted the matter to 21.04.2011. The appellant herein had filed an application Order 41 Rule 5 of CPC seeking stay of the operation of the said order which was rejected by the trial Court by its order dated 05.04.2011. Thereafter by order dated 18.04.2011 the trial Court had directed the Court Commissioner to consider the equity of appellant herein in respect of his title. Thereafter, the trial Court by order dated 21.04.2011 had accepted the report of the Court Commissioner and his final delivery report and directed to draw the final decree.

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Aggrieved by the same, the appellant herein filed the above regular appeal in R.A No.101/2012 seeking to set aside the order of the trial Court accepting the report of the Commissioner.

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That there was a delay of 508 days in filing

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the above regular appeal. Consequently, the appellant filed an application under Section 5 of the Limitation Act, seeking condonation of delay. The first appellate court had dismissed the said application for condonation of delay and had also dismissed the main appeal as the appellant had failed to make out case on merits. Aggrieved by the same, the appellant is before this Court.

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Sri Moideen Arafat, learned counsel for Sri Sachin B.S., for the appellant reiterating the grounds urged in the appeal memorandum submitted;

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(i) That the appellant had admittedly purchased the suit schedule property from respondent Nos.2 to 9 and even before passing of the Preliminary Decree, the appellant was put in possession of the suit schedule property by virtue of an

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agreement and under such circumstances the decree passed by the trial court directing the appellant to hand over portion of 45 cents out of 305 cents of land purchased by him to respondent No.1 had resulted in miscarriage of justice.

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(ii) That since there is no decree directing delivery of suit schedule property to respondent Nos.2 to 9 the courts below ought to have set aside the report of the commissioner and restored the possession to the appellant.

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(iii) That since the appellant had good case on merits, the first appellate court ought to have condoned the delay and adjudicated the case on merits instead of dismissing the same as having barred by limitation.

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Hence, he submits that there is substantial question of law involved in the matter requiring consideration.

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Per contra, Sri K. Shrihari, learned counsel

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for the respondent No.1 submitted that no prejudice is caused to the appellant in the Final Decree Proceeding as he has been allotted the share which his vendors, namely respondent Nos. 2 to 9 were entitled to and the appellant being the purchaser from the co-sharers of the property cannot claim more than what they were entitled to. That the first appellate court has even dealt with merits of the case, as could be seen in the reasoning assigned even while dismissing the application for condonation of delay and as such no substantial question of law is involved in this appeal requiring consideration. Hence, sought for dismissal of the appeal.

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7. Heard learned counsel for the parties.

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Perused the records.

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It is not in dispute that the appellant is a purchaser of 3 acres 5 cents of land forming a part of Item No.3 of plaint ‘A’ schedule property in terms of deed of sale dated 12/08/2005 that is during the pendency of the Final Decree proceedings in FDP No.1/1998 from respondent Nos.2 to 8 represented by respondent No.9 as their Power of Attorney. That the appellant got himself impleaded in the Final Decree Proceeding in FDP No.1/1998 as respondent No.10. The appellant had filed his objection to the report of the Commissioner regarding partition and allotment of shares to the parties. The trial Court by its order dated 05.4.2011 had accepted the report of the Commissioner dated 15.02.2011 and rejected the objections of the appellant. The trial Court by order dated 18.04.2011 had directed the Commissioner to

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consider the equity of the appellant to the extent of his share. The said order was challenged by the appellant in the Writ petition No.27220/2011 which was dismissed by this Court by order dated 1.03.2012.

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That in the meanwhile, the trial court by its order dated 21/04/2011 in the Final Decree Proceeding had accepted the final report regarding delivery of the properties to the parties along with the sketch furnished by the Court Commissioner. The appellant had been given complete opportunity by the trial court in the Final Decree Proceedings.

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The first appellate Court while dealing with the delay of 508 days in filing the above appeal has also dealt with the merits of the case of the appellant. The appellant has not given any justifiable reason regarding the delay in filing the appeal. The first

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appellate Court has taken note of the order of this Court in W.P.No.27220/2011 wherein this Court while dismissing the said petition has observed at para-3 as under:

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"It is not in dispute that the petitioner is claiming an agreement of sale. It is open to the petitioner to work out his remedy in so far as the agreement is concerned against respondent No.1. The Commissioner has taken care to allot the share to purchaser on the basis of the sale deed, and has protected the interest of the purchaser. Hence, I find just and equitable order has been passed by the Court below and there is no ground to interfere with the same. However, liberty is reserved to the petitioner to work out his remedy against respondent No.1 on the basis of alleged agreement.”

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As seen in paragraph 17 of the judgment and order of the first appellate Court, the learned counsel for the appellant during the argument has submitted that the appellant has no grievance against respondent No.1 who has been given the property as per the Commissioner report. It is admitted by the appellant that out of 3 acres 5 cents of land in

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Sy.No.67/1A purchased by the appellant, 45 cents has been allotted to the share of the respondent No.1 as per the preliminary decree and the appellant had no grievance in this regard. The allotment and delivery of possession of the shares in the land by the Court Commissioner is according to the entitlement of the parties as per the preliminary decree passed in OS No.59/1995. The appellant who was the purchaser during pendency of FDP is entitled for the shares only to the extent of the entitlement of his vendors namely respondent Nos. 2 to 8. If during the final decree proceedings equities have been adjusted and portion of land which was not the entitlement of respondent Nos. 2 to 8 has been allotted to respondent No.1, the appellant cannot have any grouse. These aspects of the matter have also been taken into consideration by first appellate Court in the impugned judgment and order.

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It is under the aforesaid circumstances, while dismissing the application for condonation of delay the first appellate Court has observed that the appellant has not shown any bonafides and has not explained the grounds to condone the delay besides not making out an arguable case on merits of the appeal.

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In the above facts and circumstances of the matter, no substantial question of law is involved in this appeal requiring consideration. In the result, the following:

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ORDER

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i) Regular Second Appeal No.392/2015

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filed by the appellant is dismissed.

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ii) The judgment and decree dated 23/01/2015 passed in RA.No.101/2012 by the first appellate court is confirmed.

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Sd/JUDGE

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Mkm

Mohammed K a v. Abbas

Case brief

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Mohammed K a v. Abbas

Case brief

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