Dismissed

Sri N Krishnappa v. Smt Muniyamma Since Dead by Lrs

Karnataka HC3 Oct 2023RP/62/2019

Case brief

AI extract

What is this about?

In a review petition under Order 47 Rule 1 CPC, the petitioner challenged the second appeal dismissal regarding property partition, alleging error regarding the plaintiff's lineage. The High Court dismissed the petition primarily due to inordinate delay of 11 years and lack of cogent reasons, noting review does not permit re-hearing on merits.

What did the court decide?

Review petition dismissed on grounds of inordinate delay, laches, and lack of merits.

Sri N Krishnappa Vs Smt Muniyamma Since Dead by Lrs — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:35610 RP No. 62 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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REVIEW PETITION NO. 62 OF 2019

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BETWEEN:

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SRI. N. KRISHNAPPA, S/O NARASAPPA, AGED ABOUT 75 YEARS, KERECHOODAHALLI VILLAGE, SOMANAHALLI POST, UTTARAHALLI HOBLI, BENGALURU SOUTH TALUK, BENGALURU DISTRICT - 560 082.

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…PETITIONER

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(BY SRI. R.A. DEVANAND, ADVOCATE FOR SRI. JAGADEESHACHARI, ADVOCATE)

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AND:

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SMT. MUNIYAMMA, SINCE DEAD BY LRS.

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Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA

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A. SRI. SANJEEVAIAH, SINCE DEAD BY HIS LRS.

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A(i). SMT. JAYAMMA, W/O LATE SANJEEVAIAH, AGED ABOUT 55 YEARS.

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A(ii). SMT. RADHA, D/O LATE SANJEEVAIAH, W/O SRINIVASA, AGED ABOUT 50 YEARS.

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A(iii). SMT. GEETHA, D/O LATE SANJEEVAIAH, W/O RUDRESH, AGED ABOUT 48 YEARS.

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A(iv). SMT. LATHA, D/O LATE SANJEEVAIAH, W/O BASAVARAJ, AGED ABOUT 46 YEARS.

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A(v). SMT. GOWRAMMA, D/O LATE SANJEEVAIAH, W/O SHEKHAR, AGED ABOUT 44 YEARS.

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ALL ARE RESIDING AT KERECHOODAHALLI VILLAGE, SOMANAHALLI POST, UTTARAHALLI HOBLI, BENGALURU SOUTH TALUK, BENGALURU DISTRICT - 560 082.

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(B). SRI. NARASAPPA, AGED ABOUT 56 YEARS.

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(C). RAJA, AGED ABOUT 54 YEARS.

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(D). RAMA, AGED ABOUT 54 YEARS.

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(E). GUDDAIAH AGED ABOUT 50 YEARS,

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ALL ARE R/AT KERECHOODAHALLI VILLAGE, SOMANAHALLI POST, UTTARAHALLI HOBLI, BENGALURU SOUTH TALUK, BENGALURU DISTRICT - 560 082.

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SRI. KUSHALAPPA, S/O NARASAPPA, AGED ABOUT 72 YEARS, DODDAKALLASANDRA, UTTARAHALLI HOBLI, BENGALURU SOUTH TALUK.

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SMT. PARVATHAMMA, W/O MUTTAIAH, AGED ABOUT 60 YEARS, KUMBALAGODU KENGERI HOBLI, BENGALURU SOUTH TALUK, BENGALURU RURAL DISTRICT.

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…RESPONDENTS

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(BY SRI. N.R. NAIK AND M. PRAKASHA, ADVOCATES FOR R1 A(i TO v) AND R1 (B TO E); SERVICE OF NOTICE IN RESPECT OF R2 IS HELD SUFFICIENT, VIDE ORDER DATED 11.11.2021; SRI. N. MANOHAR, ADVOCATE FOR R3)

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THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1 OF CPC, PRAYING THIS HON'BLE COURT TO (I) CALL FOR THE RECORDS IN RSA NO. 2531/2006 AND REVIEW THE ORDER PASSED ON 09/08/2007 BY ACCEPTING THE ENDORSEMENT DATED 25/12/1956 ISSUED BY THE DEPUTY COMMISSIONER AND ETC.,

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THIS PETITION, COMING ON FOR FURTHER ORDERS,

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THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This Review Petition is filed by the appellant in RSA No.2531/2006.

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This review petitioner was defendant No.1 before the Trial Court in O.S.No.946/1990. The review petitioner is seeking to review the judgment passed by this Court in RSA No.2531/2006 on the ground of discovery of new and important matter of evidence, which despite exercise of due diligence obtained and the same was intentionally and deliberately not produced by the respondents.

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The plaintiff had filed a suit in O.S.No.946/1990,

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for the relief of partition and separate possession of half share in the suit schedule properties and for permanent injunction not to alienate or encumber the suit schedule properties against the defendants. It was the case of defendant No.1 that her grand parents

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Late Narasimhaiah and Late Chowdamma had two daughters by names Smt.Muniyamma and

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Smt.Gundamma and that the plaintiff is the daughter of

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Smt.Muniyamma and that the defendants are the children

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of Smt.Gundamma. It is also stated that her grand parents Late Narasimhaiah and Late Chowdamma did not have any male issues.

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The grand-father of the plaintiff and defendants

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Late Narasimhaiah was the only son of his father, who inherited the immovable properties consisting of dwelling house at K.Chooda Halli, Uttarahalli Hobli, Bangalore South Taluk, mentioned as schedule 'A', 'B' and 'C' properties. There were several contentions raised between parties in the suit proceedings with regard to the properties not being the ancestral properties of Late Narasimhaiah as claimed and that the suit schedule properties were self acquired properties of defendants' grand-mother. It was also pleaded that the last Will and testament came to be executed by Chowdamma, bequeathing the properties and other items possessed by her in favour of her daughter Smt.Gundamma creating life interest in her favour and after the death of Smt.

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Gundamma, her grand sons i.e., the petitioner and respondent No.2 herein would succeed the properties bequeathed under the Will.

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The suit filed by Smt.Muniyamma in O.S.No.946/1990 the suit came to be decreed with regard

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to half share of the suit schedule properties and the defendants altogether were entitled to half share in the suit schedule properties and an order of permanent injunction was also granted restraining the alienation of half share of plaintiff's suit schedule properties.

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Being aggrieved by the judgment and decree

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passed in O.S.No.946/1990, defendant Nos.1 and 2 therein filed an appeal in R.A.No.84/2003 and the same came to be dismissed on 21.07.2006.

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Being aggrieved by the dismissal of the first

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appeal defendant Nos.1 and 2 preferred the second appeal, challenging the judgment rendered by the First Appellate Court dismissing the appeal of defendant Nos.1

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and 2 dated 09.08.2007 and the same came to be dismissed at the stage of admission itself. Several contentions were raised in the second appeal by the appellants by contending that the said Narasimhaiah had not possessed any immovable property during his life time and that the said Chowdamma was the owner of the property bearing Janjar No.72, property No.42, measuring 25 x 50 feet and 15 x 50 feet, situated at K.Choodahalli Village, Uttarahalli Hobli, Bangalore South Taluk, which is an Inam land and therefore, the order passed by the First

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Appellate Court requires modification and reversal of the judgment in favour of the defendants. However, despite the vehement contentions put-forth by the learned counsel for appellants / defendant Nos.1 and 2, the second appeal came to be dismissed holding that the decree of the suit in favour of the plaintiff, that she was the daughter of Muniyamma and grand-daughter of Late Narasimhaiah and Late Chowdamma and also suit properties belonged to Late Narasimhaiah came to be affirmed. But, the grievance of the defendants were that the suit schedule

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properties which belonged to Chowdamma was not at all looked into and no finding was given at any stage by all the three Courts i.e., the Trial Court, the First Appellate Court and this Court in the second appeal.

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It is the vehement contention of the learned

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counsel Sri.R.A.Devanand, who in his regular style of arguments, contends that the plaintiff Smt.Muniyamma, who filed the suit in O.S.No.946/1990 is imposter of Muniyamma and she has got no relationship whatsoever with the family of Late Narashimhaiah and Late Chowdamma. All this defence was taken up in the written statement, evidence adduced including materials both oral and documentary placed before the Trial Court. The Trial Court decreed the suit in favour of the plaintiff by allotting half share in the suit schedule properties to the plaintiff as well as defendants, which on challenge by defendant Nos.1 and 2 in R.A.No.84/2003 also came to be dismissed on 21.07.2006 affirming the judgment and decree of the Trial Court. The challenge made before this Court in RSA

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No.2531/2006 by defendant Nos.1 and 2 also did not bear fruit in favour of defendant No.1 and 2. Accordingly, this Court dismissed the second appeal filed by the defendants, upholding the judgment and decree passed by the Trial Court and the Lower Appellate Court.

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Now, by virtue of this Review Petition, the appellants in RSA No.2531/2006, who were defendant Nos.1 and 2 before the Trial Court are before this Court making efforts to impress upon this Court that the judgment passed by this Court in second appeal requires to be reviewed for the reason that there is a discovery of new and important matter of evidence, which despite exercise of due diligence obtained and the same was intentionally and deliberately not produced and placed by the respondents before both the Courts.

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It is the vehement contention of learned counsel Sri.R.A.Devanand that there has been an error in the reasoning of the Trial Court, the First Appellate Court and this Court. Therefore, the matter requires consideration for

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review of the judgment, in order to rectify the miscarriage of justice and consequently, render justice to the parties. Learned counsel further contends that this Court has jurisdiction to rectify the error committed by this Court. Therefore, the Review Petition would be maintainable.

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Learned counsel vehemently contends that the Trial Court, the First Appellate Court and this Court in second appeal have not considered the aspect of whether the plaintiff Smt.Muniyamma had any relationship with Late Narasimhaiah and Late Chowdamma and contends that the said Smt.Muniyamma, the plaintiff before the Trial Court infact did not have any issues and all such claims made by the plaintiffs were all false and frivolous without any iota of material documents, both oral and documentary. Hence, the same could not have been believed to be accepted as truthful by the both the Courts below as well as by this Court in the second appeal. He further contends that in the second appeal, this aspect of the plaintiff being not the daughter of said

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Smt.Muniyamma has not been appreciated and therefore, a serious error and miscarriage of justice have been committed. He further contends that when the plaintiff is unable to establish her relationship with Late Narasimhaiah and Chowdamma and she being the daughter of Muniyamma, the question of decreeing the partition suit in her favour to an extent of half share is totally erroneous and the same requires to be reversed and set aside, which has been ignored by the First Appellate Court and this Court in the second appeal. Having not looked into these crucial aspects by this Court in the second appeal, the present Review Petition has been preferred. In order to substantiate his contentions, learned counsel for the petitioner has relied upon the following

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judgments:-

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i. Sri.V.Shamanna Vs. D.Rajanna and others reported in 2000 (1) KCCR 716

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ii. N.Veerabhadrappa Vs Smt.Shivamma and another reported in ILR 2001 KAR 679

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iii. State of Haryana and others V/s Mohinder Singh and others reported in SC

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iv. Jaya Chandra Mohapatra Vs Land Acquisition Office, reported in AIR 2005 SC 4165

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v. Mrs.Mallika and others Vs Mr.Chandrappa and others reported in ILR 2007 KAR 3216

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The sum and substance of arguments of learned counsel Sri R.A.Devanand is that the mistake and error apparent on the face of record of this Court has warranted the filing of this Review Petition for correcting the same. He contends that the jurisdiction of review can be exercised by this Court to rectify such errors, which is apparent on the face of the record and substantial in the point of law. On the basis of the submissions made by the learned counsel and the judgments relied on by him, he seeks indulgence of this Court in reviewing the order passed by this Court in the second appeal.

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Learned counsel further contends that the core issue has been ignored even by this Court with regard to the subject matter of the issue. Therefore, the review is an eminent requirement to be considered and the judgment requires to be reviewed and re-opened and the said core issue would have to be considered by this Court. According to him, this Court has to look into the relevant core issue on the question of law put-forth in the appeal memo by the appellants / defendants.

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Per-contra , the learned counsel Sri N.R.Naik appearing on behalf of the respondent/plaintiff vehemently contends that this Review Petition is not maintainable in law, for the reason that the Review Petition has been filed after a lapse of 11 years 06 months 17 days. However, the enormous delay in filing the Review Petition has not been properly explained. He further contends that the properties have been apportioned between the parties by the Deputy Commissioner to effect the partition in FDP No.3/2007 and the Commissioner's Report has been

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accepted by the Trial Court on 26.08.2017. Therefore, nothing survives now for consideration in view of the fact

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that the parties are in their respective apportioned possession and peaceful enjoyment of the suit schedule properties of their respective shares.

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Learned counsel Sri N.R.Naik vehemently contends that there is no scope for reviewing the judgment passed in the second appeal. He also contends that the scope of review under Order XLVII Rule 1 is very limited and the same cannot be enlarged.

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Learned counsel further contends that the entire arguments addressed by the learned counsel for the review petitioner is on the basis of the merits of the case pertaining to whether the plaintiff Smt.Muniyamma whether had any subsisting right over the suit schedule properties and whether she is the daughter of Muniyamma and whether she is entitled to equal rights for partition along with defendant Nos.1 to 3. These questions putforth by the learned counsel for the petitioner in his

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arguments cannot be agitated in a Review Petition for the simple fact that all these aspects were urged and answered by the Trial Court as well as the First Appellate Court and having considered both, this Court in second appeal negatived the contentions of the appellants. Therefore, the question of going into further reasoning of the orders passed by this Court in second appeal is beyond the scope of review under Section 114 of CPC, read with Order of XLVII Rule 1 of CPC. If at all the review petitioner has any grievance of this Court having not considered his contentions in the second appeal as put-forth in the Review Petition herein, he would certainly have a remedy to challenge the same before the appropriate forum known to law.

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Learned counsel further contends that in a Review Petition, this Court cannot conduct a roving enquiry and re-hear the appeal freshly to consider the contentions put-forth by the Review Petitioner. This aspect of re-hearing on merits of the matter is not permissible in

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the Review Petition as has been held by the Hon'ble Apex

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Court and this Court in several catena of judgments.

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Learned counsel also contends that the Review Petition is also not maintainable for another reason that the counsel, who argued the second appeal is not the counsel who filed the Review Petition. Therefore, on this ground also, the Review Petition deserves to be dismissed.

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Learned counsel further contends that this Court in second appeal has considered in detail the contentions put-forth by the review petitioner and having adverted to impugned judgments of the Trial Court as well as the First Appellate Court having not found favour with the appellant, dismissed the second appeal by confirming the judgment and decree passed by the Trial Court and the First Appellate Court. Therefore, there is no further scope of re-hearing, re-appreciating or fresh hearing of the second appeal in the guise of the Review Petition.

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In support of his contentions the learned counsel

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relied upon the following judgements viz.,

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i. Shanti Devi Vs. State of Haryana and others reported in (1999) 5 SCC 703

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ii. The State of Madhya Pradesh & Ors. Vs Bherulal reported in 2020 AIAR (Civil) 1015

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iii. Chennai Metropolitan Water Supply and Sewerage Board and others Vs. T.T.Murali Babu reported in AIR 2014 SC 1141

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iv. D.R.Somayajulu, Secretary, Diesel Loco Shed and South Eastern Railway House Building Cooperative Society Limited, Visakhapatnam and Others Vs. Attili Appala Swamy and others with Commissioner (Appeals), Land Administration, Andhra Pradesh and Another Vs. Attili Appala Swamy reported in (2015) 2 SCC 390

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v. Balu Rama Pujari (deceased) by LR Vs. Gurulingappa Mallappa Bailwad (deceased) by LRs reported in 2007 (4) KCCR 2545 (DB)

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vi. Pandit Dhana Mali Vs. Bhimabai (dead) Through LRS reported in (2007) 15 SCC 434

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vii. Narasu and others Vs. Narayan Krishnaji and others reported in AIR 1959 Mysore 233

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viii. Chandrakant Jagannath Manjrekar and others Vs. Shripad Vaikunth Naik reported in AIR 1989 Bombay 91

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ix. Dolat Industries, Gonal Vs. Krishna Oil Industries and others reported in AIR 2002 Gujarat 91

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x. Sree Rajah Mantripragada Venkataraghava Rao Bahadur, Zamindar Garu and others Vs. Sri Rajah Mantripragada Venkata Hanumantha Rao Bahadur, Zamindar Garu (deceased) and others reported in AIR 1945 Madras 336"

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Section 114 of the CPC, which reads as under:-

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" 114. Review. - Subject as aforesaid, any person considering himself aggrieved,-

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(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,

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(b) by a decree or order from which no appeal is allowed by this Code, or

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(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the Order, and the Court may make such order thereon as it thinks fit."

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Order XLVII Rule 1 of CPC, which reads as

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under:-

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" 1. Application for review of judgment.- (1) Any person considering himself aggrieved-

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(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

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(b) by a decree or order from which no appeal is allowed, or

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(c) by a decision on a reference from a Court of Small Causes, and

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who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

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(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

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[Explanation.-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the

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subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.] ."

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Admittedly in the present case, there is a delay of more than 11 years in filing the Review Petition. Therefore, learned counsel has filed condonation of delay application.

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I have perused the affidavit annexed to the application for condonation of delay in filing the Review Petition. When any application is filed seeking condonation of delay, it becomes the duty of the person seeking to condone the delay to explain it in a proper manner, each and every days of delay caused in filing the Review Petition. Of course, the Courts have been taking lenient view while condoning the delay, if there is a small amount of delay. But, when there is a large number of days of

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delay as in the present case of 11 years, then there has to be proper explanation which would fall within the category

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for consideration for condonation of delay by this Court

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and the reasons assigned to be an acceptable one.

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In the case of Esha Bhattacharjee Vs Managing Committee of Raghunathpur Nafar

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Academy and others, reported in (2013) 12 SCC 649 ,

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the Hon'ble Apex Court has held that in normal circumstances the Courts would have to take pragmatic view for condonation of delay and not get into hyper technical reasons for dismissing the petition on the ground of delay. But however, at the same time has come down heavily on such litigants who sleepover the matter and not bother to litigate and come before the Court at the earliest point of time and has rejected those petitions where the litigant has slept like a 'Kumbakarna' under such circumstances, the delay was not condoned because of the conduct of the litigant thereby law has been laid down as to how the delay has to be dealt with by the Courts upon the facts and circumstances of each case. In the present case, admittedly there is a delay of more than 11 years.

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In a Review Petition what is required to be considered is not to re-appreciate and re-analyse what has been already decided by this Court in the second appeal. But, to review the judgment when there is apparently inherent error committed by the Court for re-consideration of the same. So, this Court will have to primarily see if there is any apparent error committed on the face of the record and whether it calls for the review of the judgment passed by this Court in the second appeal. On a careful perusal of the judgment passed by this Court in the second appeal, this Court has dismissed the second appeal at the stage of admission itself having not found any merit in favour of the appellants.

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The sum and substance of arguments of the learned counsel for the review petitioner is that this Court has not appreciated the genuinity or authenticity of the aspect of plaintiff to be the daughter of Smt.Muniyamma, which has been ignored completely by all the Courts including this Court in the second appeal. Therefore, he

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wants this Court to examine the aspect of the genuinity of the plaintiff being the daughter of Smt.Muniyamma. Hence, this Court is of the opinion that this aspect cannot be gone into as it has already been decided by the Trial Court, the First Appellate Court and in the second appeal. It is trite law that while dealing with the Review Petition, there is no scope even to this Court to go into the merits of the matter like dealing the Review Petition in the form of an appeal. Of course, the review petitioner will be entitled to challenge the same on merits. If he wants to review the order of this Court, he would have to primarily establish before this Court that there is an apparently inherent error committed by this Court and the same would warrant interference.

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Having perused the second appeal so also the averments made in the Review Petition and the submissions of the learned counsel for both the parties, I do not find any cogent reasons made out for considering this Review Petition on the ground that there is inherent

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