Dismissed

Smt B S Prema v. Mahalinge Gowda

Karnataka HC22 Nov 2023MSA/118/2022

Case brief

AI extract

What is this about?

This appeal challenges the remittal of a partition suit for fresh disposal by the Additional District Judge. The High Court held that the First Appellate Court correctly remitted the case to work out equity for a bona fide purchaser, and the appeal was dismissed.

What did the court decide?

The appeal was dismissed, allowing the remittal to work out equity for the purchaser without disturbing the principal share.

Smt B S Prema Vs Mahalinge Gowda — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:42083 MSA No. 118 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ MISCELLANEOUS SECOND APPEAL NO. 118 OF 2022

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BETWEEN:

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SMT. B.S. PREMA SINCE DECEASED BY LR

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G.S. PUNEETH AGED 36 YEARS S/O LATE G.P. SHIVARAMU, R/O SHUKRAVARAPET, GANJAM, SRIRANGAPATNA TALUK, MANDYA DISTRICT-571477.

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…APPELLANT

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(BY SRI. D.P.CHINNAPPA GOWDA, ADVOCATE FOR SRI. ANANTHA NARAYANA B.N., ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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MAHALINGE GOWDA AGED ABOUT 66 YEARS S/O BASAVE GOWDA R/O BANAGHATTA VILLAGE HIREMARALI POST PANDAVAPURA TALUK MANDYA DISTIRCT-571434

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JAGADEESH AGED ABOUT 65 YEARS S/O LATE VENKATE GOWDA @ SHIVE GOWDA R/O BELAGOLA VILLAGE SRIRANGAPATNA TALUK MANDYA DISTRICT-571606

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…RESPONDENTS

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(BY SRI. KUMARA K.G., ADVOCATE)

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THIS MSA IS FILED UNDER ORDER XLIII RULE 1(u) OF THE CODE OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND DECREE DATED 27.09.2022 PASSED IN R.A.NO.5017/2022 ON THE

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NC: 2023:KHC:42083 MSA No. 118 of 2022

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FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANYDA (SITTING AT SRIRANGAPATNA), ALLOWING THE APPEAL FILED UNDER ORDER 41 RULE 1 OF CPC., AND REMANDING THE MATTER BACK TO THE TRIAL COURT FOR FRESH DISPOSAL.

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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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The appellant has challenged the judgment and decree dated 27.09.2022 passed by the III Additional District and Sessions Judge, Mandya (Sitting at Srirangapatna) (henceforth referred to as ‘the First Appellate Court’) in R.A. No.5017/2022 by which it set aside the order dated 16.12.2021 passed by the Additional Senior Civil Judge at Srirangapatna (henceforth referred to as ‘the Final Decree Court’) in F.D.P No.10/2011 and remitted the case back to the Final Decree Court for fresh disposal in accordance with the observations made by the Fast Track Court in R.A. No.40/2011 dated 05.03.2013.

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In this order, the parties shall be referred to as they were arrayed before the Trial Court in O.S.270/2006

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3 - NC: 2023:KHC:42083 MSA No. 118 of 2022

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A suit in O.S. No.270/2006 for partition and

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separate possession was filed by the appellant herein against her brother Mr. Jagadish and mother Smt. Kempamma before the Additional Civil Judge (Senior Division), Srirangapatna (henceforth referred to as the ‘Trial Court’) in respect of the land bearing: (i) Sy. Nos.886/2, 890, 1041, 1249 of Belagola hobli, Sriragapatna Taluk, measuring in all 01 acre 21 guntas; (ii) Sy. No.53/1 of Mogarahalli village, Belagala hobli, Srirangapatna Taluk, Mandya District, measuring 03 aces 20 guntas and (iii) site No.184-114-142 measuring 05 guntas situate at Belagola village, Belagola hobli, Srirangapatna Taluk. The defendant No.3 was a purchaser of land in Sy. No.53/1 of Mogarahalli measuring 03 acres 20 guntas i.e., suit schedule item No.2 from defendant No.1. The suit was decreed by the Trial Court in terms of the judgment and decree dated 07.02.2011 by which the plaintiff was declared to be entitled to 4/9^th share in the suit properties. This judgment was assailed in R.A. No.40/2011 by Mr.Jagadeesh and Smt.Kempamma where

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4 - NC: 2023:KHC:42083 MSA No. 118 of 2022

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the Presiding Officer, Fast Track Court, Srirangapatna, by judgment dated 05.03.2013, modified the judgment and decree dated 14.12.2010 passed by the Trial Court in O.S. No.270/2006 and held that the plaintiff, who by then had expired was entitled to half share in the suit properties. The Fast Track Court further held that the right of the purchaser is to be protected out of the share of defendant No.1 (Mr.Jagadeesh / Mr.Jagadish) in the suit properties.

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Feeling aggrieved by the said judgment, defendant No.1 (Mr.Jagadish) filed R.S.A No.1009/2013.

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Since there was no stay of the judgment and decree passed in R.A No.40/2011, final decree proceedings was initiated in F.D.P No.10/2011. The Final Decree Court in terms of its order dated 16.12.2021, granted a final decree and declared that the deceased plaintiff is entitled to half share in the suit schedule item Nos.1 and 2 properties as per the report dated 22.03.2014 of the Commissioner and 1½ guntas in suit schedule item No.3. However, the Final Decree Court did not work out equity

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5 - NC: 2023:KHC:42083 MSA No. 118 of 2022

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by apportioning the property purchased by the defendant No.3 from defendant No.1, Mr.Jagadish. Later, R.S.A No.1009/2013 was dismissed for non-prosecution in terms of the judgment dated 08.11.2023.

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Being aggrieved by the order of the Final Decree Court not apportioning the property purchased by the defendant No.3, he filed an appeal in R.A. No.5017/2022 before the First Appellate Court. The First Appellate Court in terms of the impugned judgment, allowed the appeal and remitted the case back to the Final Decree Court on the ground that the First Appellate Court in R.A. No.40/2011 had specifically protected the interest of the purchaser / defendant No.3 which had to be worked out in the final decree proceedings.

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Being aggrieved by the said order, the legal heir of deceased plaintiff is before this Court in this appeal.

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Learned counsel for the appellant submits that the Final Decree Court had demarcated the properties which fell to the share of the deceased plaintiff by

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6 - NC: 2023:KHC:42083 MSA No. 118 of 2022

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considering the report submitted by the Commissioner and therefore, if the purchaser has any interest, he has to pursue it against the other half allotted to the defendant No.1 - Mr.Jagadish.

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Per contra, the learned counsel for the respondents submits that though the defendant No.3 had purchased suit item No.2 during the pendency of proceedings, but yet the share which was allotted to the defendant No.1 - Mr.Jagadish had to be assigned in favour of the defendant No.3 and the Final Decree Court without working equity merely identified the share which the plaintiff is entitled to. He submits that the Final Decree Court ought to have identified the property that fell to the share of defendant No.1 and thereafter, must have protected the interest of the defendant No.3 who had purchased the suit schedule item No.2 from the defendant No.1.

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NC: 2023:KHC:42083 MSA No. 118 of 2022

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I have considered the submissions made by the

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learned counsel for the appellant and the learned counsel for respondents.

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It is not in dispute that defendant No.3 being a purchaser of the moiety of defendant No.1 in the suit schedule item No.2 was held to be entitled to protect his interest in R.A. No.40/2011 by the First Appellate Court in terms of its judgment dated 05.03.2013. A perusal of the order dated 16.12.2021 passed by the Final Decree Court indicates that the Final Decree Court has merely apportioned the share to which the plaintiff was entitled to and did not work out equity in favour of the purchaser/respondent No.1 herein. In the facts and circumstances of this case, the Final Decree Court was bound to work out equity in favour of the purchaser (defendant No.3) so as to save his interest in the property purchased by him from the defendant No.1 in the suit. Therefore, there is no error committed by the First Appellate Court in remitting the case back to the Final

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8 - NC: 2023:KHC:42083 MSA No. 118 of 2022

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Decree Court and the same does not warrant interference by this Court.

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Hence, the appeal lacks merit and same is dismissed. It is needless to mention that the half share of the plaintiff in all the suit items shall not be disturbed while working out equity in favour of the purchaser. The half share of the defendant No.1 shall be allotted to the purchaser / defendant No.3 and if there is any short fall, the Final Decree Court may consider compensating him suitably by allotting any portion from out of the share of the defendant No.1 in any other items of the suit properties.

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Sd/JUDGE

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SMA

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List No.: 1 Sl No.: 34

Smt B S Prema v. Mahalinge Gowda

Case brief

What is this about?

What did the court decide?

Smt B S Prema v. Mahalinge Gowda

Case brief

What is this about?

What did the court decide?

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