Allowed

Channabasanagouda S/O. Rudragouda Patil v. Mohammad Haneef

Karnataka HC1 Dec 2023RFA/4132/2013

Case brief

AI extract

What is this about?

This is a regular first appeal challenging an order in Final Decree Proceedings that awarded mesne profit against all defendants. The High Court held that since the suit decree was only against Defendant No.2, the First Appeal Court's order making other defendants jointly liable was beyond jus decidendi modus operandi.

What did the court decide?

The order in Final Decree Proceedings No.11/2007 dated 23.03.2013 was modified to entitle the plaintiff to mesne profit from Defendant No.2 only.

Channabasanagouda S/O. Rudragouda Patil Vs Mohammad… — Specific Performance | Karnataka HC (2023)

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NC: 2023:KHC-D:14073 RFA No. 4132 of 2013

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 1^ST DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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REGULAR FIRST APPEAL NO.4132/2013(PAR)

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BETWEEN:

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CHANNABASANAGOUDA S/O. RUDRAGOUDA PATIL SINCE DECEASED BY HIS LRS.

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1A. SMT. CHANNAVVA W/O. CHANNABSAGOUDA PATIL, AGE: 60 YEARS, OCC: AGRIL.

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1B. AJJANAGOUDA S/O. CHANNABASAGOUDA PATIL, AGE: 38 YEARS, OCC: AGRIL.

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1C. BASANGOUDA S/O. CHANNABSAGOUDA PATIL, AGE: 36 YEARS, OCC: AGRIL.

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1D. SHARDA D/O. CHANNABSAGOUDA PATIL, AGE: 29 YEARS, OCC: AGRIL.

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1E. SURESHGOUDA S/O. CHANNABSAGOUDA PATIL, AGE: 27 YEARS, OCC: AGRIL.

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VIJAYALAKSHMIM KANKUPPI Digitally signedbyVIJAYALAKSHMIM KANKUPPIDate:2023.12.1213:24:00 +0530

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1F. CHANDRAGOUDA S/O. CHANNABSAGOUDA PATIL, AGE: 27 YEARS, OCC: AGRIL.

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ALL ARE R/O. KUNTENAHOSAHALLI VILLAGE, TQ: HANGAL, DIST: HAVERI.

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…APPELLANT

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(BY SRI DINESH M. KULKARNI, ADVOCATE)

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AND:

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MOHAMMAD HANEEF S/O ABDULKAREEMSAB LAHAR, AGE: 67 YEARS, OCC: AGRICULTURE AND RETIRED JUDGE, R/O: HANGAL, TQ: HANGAL,

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2 - NC: 2023:KHC-D:14073 RFA No. 4132 of 2013

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DIST: HAVERI, PIN: 581 104.

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SMT. JANAKAWWA W/O. BHIMAPPA @ PARASAPPA UPPIN, AGE: 54 YEARS, OCC: AGRI, R/O.MUGALKATTI, TQ: SHIGGAON, DIST: HAVERI, PIN: 581 104.

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SAVAKKA D/O. BHIMAPPA @ PARASAPPA UPPIN, AGE: 16 YEARS, R/O: MUGALKATTI, TQ: SHIGGAON, DIST: HAVERI. PIN: 581 104.

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GADIGEVVA BHIMAPPA @ PARASAPPA UPPIN AGE: 13 YEARS, R/O: MUGALKATTI, TQ: SHIGGAON, DIST: HAVERI, PIN: 581 104.

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RESPONDENT NO.3 AND 4 ARE MINOR REPRESENTED BY NATURAL MOTHER REPST.NO.2.

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ISHWAR S/O. GOPAL SUGANDI, AGE: 65 YEARS, OCC: AGRICULTURE, R/O: HANGAL, DIST: HAVERI, PIN: 581 104.

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…RESPONDENTS

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(BY SRI VISHWANATH HEGDE, ADVOCATE FOR R1; R1 AND R5 ARE SERVED; R3 AND R4 ARE MINORS REPRESENTED BY R2)

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THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SECTION 96 IF CODE IF CIVIL PROCEDURE, PRAYING TO SET AISE THE ORDER PASSED IN FDP NO.11/2007 PASSED BY THE SENIOR CIVIL JUDGE, HANGAL DATED 23.03.2013 AND ETC.,

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

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3 - NC: 2023:KHC-D:14073 RFA No. 4132 of 2013

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JUDGMENT

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The appeal is filed by defendant No.3 in the suit in O.S.No.05/1973 (Old O.S.No.119/1968) (Respondent No.3 in FDP No.11/2007) calling in question the order dated 23.03.2013 in FDP No.11/2007 by the Court of the Senior Civil Judge, Hangal, so far as ordering mesne profit against defendant No.3 appellant herein and against all the respondents.

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For the purpose of convenience, ranking of the parties is referred as per their status before the Trial Court in O.S.No.05/1973.

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Brief facts of the case are that the plaintiffs have filed suit for partition and separate possession. In O.S.No.05/1973 the Trial Court has decreed the suit as against defendant No.2 only by the judgment and decree dated 01.02.1978. The plaintiffs have filed final decree proceedings in FDP No.11/2007. The FDP Court by order dated 23.03.2013 has allowed the final decree petition by

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4 - NC: 2023:KHC-D:14073 RFA No. 4132 of 2013

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holding that plaintiff No.2 is entitled for mesne profit jointly and severally by all the defendants (respondents herein in FDP proceedings) Therefore, defendant No.3 is in the appeal on the ground that there is no order of payment of mesne decree as against this defendant No.3/appellant.

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Heard argument from both sides and perused the material placed on record.

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The suit in O.S.No.05/1973 is decreed against defendant No.2 only. When the decree is passed against defendant No.2 only and then defendant No.2 is liable to pay mesne profit as decreed in the suit. But the FDP Court

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has worked out mesne profit of Rs.14,42,081/- and by holding all the respondents are jointly and severally liable to pay mesne profit. When in the suit, the decree is against defendant No.2 only, then defendant No.2 alone is liable to pay mesne profit. There is no decree against defendant No.3. Therefore, the order passed in FDP is beyond the preliminary decree, which cannot be

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5 - NC: 2023:KHC-D:14073 RFA No. 4132 of 2013

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permitted. The order in preliminary decree proceedings shall be confined to the preliminary decree and shall not

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go beyond the preliminary decree. Therefore, the appeal is liable to be allowed by modifying the order passed in final decree proceedings dated 23.03.2013, in FDP No.11/2007 that the said order of mesne profit is only against defendant No.2 only. Rest of the observations and findings

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by the FDP Court in the FDP proceedings are kept intact. Therefore, the appeal is liable to be allowed. Hence, I proceed to pass the following:

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ORDER

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i) The appeal is allowed.

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ii) The order in FDP No.11/2007 dated 23.03.2013 by the Court of the Senior Civil Judge, Hangal, is modified to the extent that plaintiff No.2 is entitled mesne profit as worked out by the FDP Court from defendant No.2 only

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6 - NC: 2023:KHC-D:14073 RFA No. 4132 of 2013

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or his legal heirs. The other observations and findings by the FDP Court are not altered.

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iii) No orders as to cost.

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iv) Draw decree accordingly.

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Sd/JUDGE

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SSP List No.: 2 Sl No.: 38 CT-ASC

Channabasanagouda S/O. Rudragouda Patil v. Mohammad Haneef

Case brief

What is this about?

What did the court decide?

Channabasanagouda S/O. Rudragouda Patil v. Mohammad Haneef

Case brief

What is this about?

What did the court decide?

What the court decided

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