Allowed

Smt. Lakshmamma v. Smt. Rani

Karnataka HC26 Oct 2023RSA/1361/2016

Case brief

AI extract

What is this about?

Second appeals against confirmation of executing court order in partition suit. Court held third party applicants tracing rights via judgment debtor through unregistered sale deeds lack independent title and locus standi to resist execution under CPC Order XXI Rule 97.

What did the court decide?

Second appeals allowed; judgment and decree of appellate court dated 30.6.2016 set aside; judgment and order of executing court dated 30.6.2014 confirmed.

Smt. Lakshmamma Vs Smt. Rani — Execution and Attachment | Karnataka HC (2023)

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NC: 2023:KHC:38038 RSA No. 1361 of 2016 C/W RSA NO.1360 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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REGULAR SECOND APPEAL NO. 1361 OF 2016

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C/W

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REGULAR SECOND APPEAL NO. 1360 OF 2016

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IN RSA NO.1361/2016 BETWEEN:

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SMT. LAKSHMAMMA DAUGHTER OF LATE JAVARE GOWDA, AGED ABOUT 53 YEARS, RESIDING AT CHIKKABOREGOWDANA DODDI, IGGALURU DAKALE, VIRUPAKSHIPURA HOBLI, CHANNAPATNA TALUK

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SMT GOWRAMMA

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Digitally signed by ALBHAGYA Location: HIGH COURT OF KARNATAKA

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D/O LATE JAVARE GOWDA,

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AGED ABOUT 53 YEARS, RESIDING AT CHIKKABOREGOWDANA DODDI, IGGALURU DAKALE, VIRUPAKSHIPURA HOBLI, RAMANAGARAM DISTRICT, CHANNAPATNA TALUK.

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…APPELLANTS

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(BY SRI.P.M.SIDDAMALLAPPA, ADVOCATE)

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AND:

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SMT. RANI D/O RAJENDRA,

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AGED ABOUT 39 YEARS, RESIDING AT NO.118, 3RD CROSS, NEW BAMBU BAZAR, MEDARA BLOCK, MYSORE-570007.

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SRI VIJAY KUMAR SON MANIKYAM, AGED ABOUT 59 YEARS, RESIDING AT DOOR NO.442, BELAVANTHA GRAMA, KASABA HOBLI, MYSORE TALUK-570007.

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SRI JAYARAM

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SON OF KUPPUSWAMY MODALIYAR, AGED ABOUT 50 YEARS RESIDING AT DOOR NO.952, BELAVANTHA GRAMA, KASABA HOBLI, MYSORE TALUK-570007.

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SMT.UMA

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3A. W/O LATE JAYRAM AGED ABOUT 62 YEARS

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3B. SMT.GAYATHRI, D/O LATE K.JAYRAM AGED ABOUT 42 YEARS

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3C. SMT.VIJAYA KUMARI, D/O LATE K.JAYARAM AGED ABOUT 40 YEARS

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3D. SRI.MURALI S/O LATE K.JAYRAM AGED ABOUT 38 YEARS

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3 - NC: 2023:KHC:38038 RSA No. 1361 of 2016 C/W RSA NO.1360 of 2016

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R3(A) TO R3(D) ALL ARE R/AT NO.438, NEW NO.952, BELAVANTHA GRAMA PUSHAPAGIRI KASABA HOBLI, MYSORE TALUK AND DISTRICT-570007.

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SRI EBNEAZER SON OF LATE SINGAMUNI, AGED ABOUT 60 YEARS, RESIDING AT DOOR NO.971, BELAVANTHA GRAMA, KASABA HOBLI, MYSORE TALUK-570007.

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SMT. ANTHONY MANJULA WIFE OF PHILIP AGED ABOUT 52 YEARS, STIE NO.132, OLD SY.NO.93/32, RESIDING AT DOOR NO.970, BELAANTHA GRAMA, KASABA HOBLI, MYSORE DISTRICT - 570007.

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SRI.MUDDEGOWDA, SON OF JAVAREGOWDA, AGED ABOUT 56 YEARS, RESIDING AT SIDDALINGAPURA VILLAGE, KASABA HOBLI, MYSORE TALUK - 570007.

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SRI.KEMPARANGAIAH, SON OF JAVAREGOWDA, AGED ABOUT 52 YEARS, SINCE DEAD BY HIS LRs

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7A. SMT. PREMA KUMARI, W/O LATE KEMPARANGAIAH @ KEMPARANGEGOWDA

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AGED ABOUT 52 YEARS, RESIDING AT NO.201, BEHIND RAMA MANDIRA, SIDDALINGAPURA VILLAGE, KASABA HOBLI, MYSORE TALUK & DISTRICT - 570003

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7B. VEENA KUMARI.K

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D/O LATE KEMPARANGAIAH @ K KEMPARANGEGOWDA, AGED ABOUT 35 YEARS, RESIDING AT NO.201, BEHIND RAMA MANDIRA, SIDDALINGAPURA VILLAGE, KASABA HOBLI, MYSORE TALUK & DISTRICT - 570003

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7C. SRI.VINAY.K

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S/O LATE KEMPARANGAIAH @ KEMPARANGEGOWDA, AGED ABOUT 33 YEARS, RESIDING AT NO.201, BEHIND RAMA MANDIRA, SIDDALINGAPURA VILLAGE, KASABA HOBLI, MYSORE TALUK & DISTRICT - 570003

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*7D. SRI.VIDYA.K D/O LATE KEMPARANGAIAH @ KEMPARANGEGOWDA W/O PURUSHOTHAM, AGED ABOUT 31 YEARS, R/AT NO.350, 4^TH CROSS, MUNESHWARA NAGARA, UDAYAGIRI, MYSORE-570003

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SRI.RAMESHA.S SON OF JAVAREGOWDA, AGED ABOUT 44 YEARS, RESIDING AT SIDDALINGAPURA VILLAGE, KASABA HOBLI, MYSORE TALUK - 570007.

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* Inserted vide Chamber order dated: 22.12.2023 .

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SRI.MAHADEVA

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SON OF JAVAREGOWDA, AGED ABOUT 50 YEARS, RESIDING AT CHIKKAKEMPEGOWDA HOUSE, THADAHAVADI VILLAGE, SRIRANGAPATNA TALUK, MANDYA DISTRICT - 570007.

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…RESPONDENTS

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(BY SRI. B V GANGIREDDY, ADVOCATE FOR R2 & 4 AND ALSO FOR R3(A TO D);

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SRI.HARSHA.D.JOSHI, ADVOCATE FOR R7(A TO D);

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V/O DTD: 21/4/2017, R1, R5 TO 9 NOTICE ARE DISPENSED WITH)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.06.2016 PASSED IN RA NO.469/2014 ON THE FILE OF THE II ADDL. DISTRICT JUDGE, MYSURU, AND CONFIRMING THE JUDGMENT AND ORDER DATED 30.06.2014 PASSED IN EX NO.770/2007 BY PRL. SR. CIVIL JUDGE, MYSORE, BY ALLOWING THE ABOVE APPEAL WITH COSTS.

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IN RSA NO.1360/2016 BETWEEN:

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SMT. LAKSHMAMMA DAUGHTER OF LATE JAVARE GOWDA, AGED ABOUT 53 YEARS, RESIDING AT CHIKKABOREGOWDANA DODDI, IGGALURU DAKALE, VIRUPAKSHIPURA HOBLI, CHANNAPATNA TALUK

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- 6 - NC: 2023:KHC:38038 RSA No. 1361 of 2016 C/W RSA NO.1360 of 2016

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SMT GOWRAMMA

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D/O LATE JAVARE GOWDA, AGED ABOUT 53 YEARS, RESIDING AT CHIKKABOREGOWDANA DODDI, IGGALURU DAKALE, VIRUPAKSHIPURA HOBLI, RAMANAGARAM DISTRICT, CHANNAPATNA TALUK.

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…APPELLANTS

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(BY SRI.P.M.SIDDAMALLAPPA, ADVOCATE)

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AND:

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SMT. ANTHONY MANJULA WIFE OF PHILIP AGED ABOUT 52 YEARS, STIE NO.132, OLD SY.NO.93/32, RESIDING AT DOOR NO.970, BELAANTHA GRAMA, KASABA HOBLI, MYSORE DISTRICT - 570007.

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SMT. RANI D/O RAJENDRA, AGED ABOUT 39 YEARS, RESIDING AT NO.118, 3RD CROSS, NEW BAMBU BAZAR, MEDARA BLOCK, MYSORE-570007.

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SRI VIJAY KUMAR SON MANIKYAM, AGED ABOUT 59 YEARS, RESIDING AT DOOR NO.442, BELAVANTHA GRAMA, KASABA HOBLI, MYSORE TALUK-570007.

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*Page No.6 is Retyped and Replaced vide Chamber order dated: 22.12.2023 .

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SRI JAYARAM

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SON OF KUPPUSWAMY MODALIYAR, AGED ABOUT 50 YEARS RESIDING AT DOOR NO.952, BELAVANTHA GRAMA,

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KASABA HOBLI, MYSORE TALUK-570007.

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SRI EBNEAZER SON OF LATE SINGAMUNI, AGED ABOUT 60 YEARS, RESIDING AT DOOR NO.971, BELAVANTHA GRAMA, KASABA HOBLI, MYSORE TALUK-570007.

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SRI.MUDDEGOWDA, SON OF JAVAREGOWDA, AGED ABOUT 56 YEARS, RESIDING AT SIDDALINGAPURA VILLAGE, KASABA HOBLI, MYSORE TALUK - 570007.

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SRI.KEMPARANGAIAH, SON OF JAVAREGOWDA, AGED ABOUT 52 YEARS, SINCE DEAD BY HIS LRs

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7A. SMT. PREMA KUMARI, W/O LATE KEMPARANGAIAH @ KEMPARANGEGOWDA AGED ABOUT 52 YEARS, RESIDING AT NO.201, BEHIND RAMA MANDIRA, SIDDALINGAPURA VILLAGE, KASABA HOBLI, MYSORE TALUK & DISTRICT – 570003

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*Page No.7 is Retyped and Replaced vide Chamber order dated: 22.12.2023 .

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8 - NC: 2023:KHC:38038 RSA No. 1361 of 2016 C/W RSA NO.1360 of 2016

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7B. VEENA KUMARI.K

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D/O LATE KEMPARANGAIAH @ K KEMPARANGEGOWDA,

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AGED ABOUT 35 YEARS, RESIDING AT NO.201, BEHIND RAMA MANDIRA, SIDDALINGAPURA VILLAGE, KASABA HOBLI, MYSORE TALUK & DISTRICT - 570003

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7C. SRI.VINAY.K

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S/O LATE KEMPARANGAIAH @ KEMPARANGEGOWDA, AGED ABOUT 33 YEARS, RESIDING AT NO.201, BEHIND RAMA MANDIRA, SIDDALINGAPURA VILLAGE, KASABA HOBLI, MYSORE TALUK & DISTRICT - 570003

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*7D. SRI.VIDYA.K

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D/O LATE KEMPARANGAIAH @ KEMPARANGEGOWDA W/O PURUSHOTHAM,

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AGED ABOUT 31 YEARS,

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R/AT NO.350, 4^TH CROSS, MUNESHWARA NAGARA, UDAYAGIRI, MYSORE-570003

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SRI.RAMESHA.S

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SON OF JAVAREGOWDA, AGED ABOUT 44 YEARS, RESIDING AT SIDDALINGAPURA VILLAGE, KASABA HOBLI, MYSORE TALUK - 570007.

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SRI.MAHADEVA

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SON OF JAVAREGOWDA, AGED ABOUT 50 YEARS, RESIDING AT CHIKKAKEMPEGOWDA HOUSE, THADAHAVADI VILLAGE, SRIRANGAPATNA TALUK, MANDYA DISTRICT - 570007.

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…RESPONDENTS

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(BY SRI. B V GANGIREDDY, ADVOCATE FOR R1; SRI.HARSHA.D.JOSHI, ADVOCATE FOR R7(A TO D);

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* Inserted vide Chamber order dated: 22.12.2023 .

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9 - NC: 2023:KHC:38038 RSA No. 1361 of 2016 C/W RSA NO.1360 of 2016

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V/O DTD: 21/4/2017, R2 TO 9 ARE DISPENSED WITH)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.06.2016 PASSED IN RA NO.466/2014 ON THE FILE OF THE II ADDL. DISTRICT JUDGE, MYSURU BY ALLOWIING I.A NO.7, AND CONFIRM THE JUDGMENT AND ORDER DATED 30.06.2014 PASSED IN EX NO.770/2007 BY PRL. SR. CIVIL JUDGE, MYSORE, BY ALLOWING THE ABOVE APPEAL WITH COSTS.

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

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JUDGMENT

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These two captioned appeals, arising out of the partition suit, are filed by decree holders assailing the judgment and decree rendered by the appellate Court in R.A.Nos.469/2014 and 466/2014.

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For the sake of convenience, the parties are referred to as per their rank in the execution petition.

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The decree-holders instituted a suit for partition in O.S.No.265/1995. The said suit was contested by the family members who are arrayed as defendants. Both the parties let in evidence to substantiate their respective claims. The trial Court decreed the suit by the judgment and decree dated 28.2.2002 thereby awarding 2/6^th share

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together to the decree holders in the suit schedule property. Based on the preliminary decree drawn in O.S.No.265/1995, the decree holders filed final decree proceedings in FDP.No.28/2002. In the final decree proceedings, the northern side portion to the extent of 2/6^th share in Survey No.93/32 was allotted to the share of the decree holders. The decree holders based on final decree have taken possession to the extent of 1/6^th share. The decree holders however found that some third parties are asserting right and therefore, the decree holders were compelled to file execution petition in Ex.No.770/2007.

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The present respondents 1, 2, 4 and 5 and respondents 3(a to d) asserting right and title over the remaining 1/6^th share filed an application under Order XXI Rule 97 of CPC. The third party applicants are asserting right and title alleging that one of the judgment debtors has conveyed the property in question vide registered sale deed dated 25.3.1989. The said applications filed under Order XXI Rule 99, 100, 191 R/w Section 94(e) of CPC and under Order XXI Rule 97 of CPC were strongly resisted by the

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decree-holders by filing objections. The executing Court having examined the contentions of the third party applicants however found that the third party applicants are tracing their rights through the judgment debtors who have suffered preliminary decree and final decree. It is in this background, the executing Court was of the view that the third party applicants cannot maintain applications under Order XXI Rule 97 of CPC. Consequently, the applications were rejected. Feeling aggrieved by the rejection of the applications, Anthony Manjula preferred R.A.No.466/2014 who is arrayed as respondent No.5 in

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RSA.No.1361/2016 and respondent No.1 in RSA.No.1360/2016. Rani, Vijaya Kumar, K. Jayaram and Ebneazer preferred R.A.No.469/2014 who are arrayed as respondents 1 to 4 in RSA.No.1361/2016 and respondents 2 to 5 in RSA.No.1360/2016.

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The appellate Court has allowed the appeals on

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the ground that third party applicants have acquired legal right and therefore, under the agreements they have locus

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to resist delivery of possession. The appellate Court referring to Exs.P3, 39 and 40 found that the sale deeds executed in favour of Anthony Manjula and Jayaram are prior to the institution of the suit while the sale deeds of Vijaya Kumar and Ebneazer are after passing of the final decree and before conclusion of the preliminary decree proceedings. Referring to the documents, the appellate Court was of the view that third party applicants have substantiated that they have constructed buildings and they are in possession of the said buildings. The appellate Court has proceeded to entertain the third party applications on the premise that the decree holders ought to have impleaded the third party applicants and had they impleaded the third party applicants, they would have worked out their equitable rights in the pending final decree proceedings. On these set of reasoning, the appellate Court has allowed the applications filed by third party applicants except Rani who is appellant No.1 in R.A.No.469/2014. Consequently, the appeals filed by the

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third party applicants are allowed and the appeal insofar

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as Rani, appellant No.1 in RA.No.469/2014 is dismissed.

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These two second appeals arise out of the judgment and decree rendered by the appellate Court in R.A.Nos.466 and 469/2014.

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This Court vide order dated 01.03.2017 has formulated the following substantial questions of law:

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"In RSA No.1361/2016:

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a) Whether the first appellate Court was justified in allowing RA 469/2014 filed by obstructors namely Sri. Vijaya Kumar, Sri.K.Jayaram and Sri.Ebneazer in Ex. No. 770/2007 and applications (I.A.4, 5 and 6) filed by said persons under Order 21 Rule 99, 100, 101 read with 94(E) of CPC and setting aside the judgment and order passed by the Executing court in Ex.No.770/2007?

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b) Whether the finding of the first appellate Court that the obstructors namely Sri. Vijaya Kumar, Sri.K.Jayaram and Sri.Ebneazer are not trespassers as held by the executing Court and on the other hand, they are the persons holding possession of the schedule properties pursuant to the agreement of sale, is sustainable in law?

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c) And to consider any other substantial questions of law which may arise for consideration while hearing the appeal?

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In RSA No.1360/2016:

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a) Whether the first appellate Court was justified in allowing RA 466/2014 filed by Smt.Anthony Manjula an obstructor in Ex.No.770/2007 and allowing I.A.16 filed by said Smt. Anthony Manjula under Order 21 Rule 99, 100, 101 read with 94(E) of CPC and setting aside the judgment and order passed by the Executing court in Ex.No.770/2007?

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b) Whether the finding of the lower appellate Court that the obstructor by name Smt.Anthony Manjula is not a trespasser as held by the executing Court and on the other hand, she is the person holding the possession of the suit property pursuant to the agreement of sale, is sustainable in law ?

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c) And to consider any other substantial questions of law which may arise for consideration while hearing the appeal?"

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Heard the learned counsel for the decree

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holders and the learned counsel appearing for third party applicants. Perused the material on record.

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The moot question that requires consideration

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at the hands of this Court is as to whether the appellate Court was justified in entertaining third party applications

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under Order 97 Rule XXI of CPC based on an unregistered sale deeds?

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It is a trite law that third party applicant to

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maintain an application under Order 97 Rule XXI of CPC should possess an independent title and applicant's title should be superior to that of the decree holders. In the present case on hand, the third party applicants are tracing rights based on unregistered sale deeds through the judgment debtors who have suffered preliminary decree passed in O.S.No.265/1995 and also final decree passed in FDP.No.28/2002. This Court in catena of judgments has held that third party can protect his possession only in the event he is able to establish that he has an independent title. The third party objector who traces his right through the judgment debtor has no locus to intervene in the pending execution case. His right to protect possession is by showing legitimate, legal and better right and possession than the decree holders. The finding recorded by the appellate Court while entertaining

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the appeal that the third party applicants have a better title than that of the decree-holders suffers from serious perversity and the said conclusions recorded therein are found to be patently erroneous. Remedy under Rule 97 Order XXI of CPC is available to a person in actual possession with independent right over the property. Only such person has the right to record resistance and not a party who is tracing his right under the judgment debtor who has suffered a decree. The execution proceeding are arising out of the partition suit. In a partition suit, the Court does not grant rights in favour of the joint family members. Rights are not created pursuant to the preliminary decree passed by a competent Court. In an ancestral property, the joint family member has a preexisting right and what the Court does while entertaining the partition suit is it formally declares pre-existing right. Therefore, where a decree-holder in an execution seeks possession of the property based on a preliminary decree and final decree, the third party applicant placing reliance on the document executed by the joint family member

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who has suffered a decree has no locus to resist the execution of the decree and the said applicant is not competent to resist under Rule 97 of Order XXI of CPC.

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The provisions of Order 97 Rule XXI of CPC

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should not be permitted to be misused especially when the party putting forward right, title and interest in the property is not claiming any independent right, title or interest but is simply claiming a right through the judgment debtor. In the light of the discussions made supra, the reasons recorded by the appellate Court while allowing the third party applications suffer from serious infirmities. In the present case on hand, the third party applicant has not acquired any right and title as they are placing reliance on an unregistered sale deed executed by the defendants who have suffered a preliminary decree. Therefore, I am of the view that the third party applicants based on an unregistered sale deed even otherwise could not have maintained application under Order XXI Rule 97 of CPC. The executing Court while testing the locus of

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third party applicants has rightly rejected these applications. The finding of the appellate Court that the decree holders ought to have impleaded the third party applicants is palpably erroneous. The plaintiff who is asserting his legitimate right in the suit schedule property has no obligation to implead a stranger who is asserting right based on an unregistered sale deed. If third party applicants feel that they are cheated by their vendors, their remedy is to pursue proper recourse against their vendors and their grievance cannot be adjudicated in the execution proceedings arising out of the preliminary decree passed in a partition suit.

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For the reasons stated supra, the substantial question (a) formulated in both the appeals are answered in the negative and against the third party applicants. The appellate Court erred in setting aside the order of the executing Court. The finding of the appellate Court that the third party applicants cannot be treated as tresspassers suffers from perversity. Therefore, the

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substantial question (b) also needs to be answered in the

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negative and against the third party applicants.

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For the reasons stated supra, I proceed to pass

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the following:

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ORDER

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(i) The second appeals are allowed.

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(ii) The judgment and decree dated 30.6.2016 rendered by the appellate Court in R.A.No.466 and R.A.No.469/2014 are hereby set aside. Consequently,

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the judgment and order dated 30.6.2014 passed in Ex.No.770/2014 is confirmed.

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(iii) Office to draw the decree accordingly.

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(iv) Pending interlocutory applications, if any, do not survive for consideration and accordingly, stand disposed of.

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List No.: 1 Sl No.: 28

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Sd/JUDGE

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ALB

Smt. Lakshmamma v. Smt. Rani

Case brief

What is this about?

What did the court decide?

Smt. Lakshmamma v. Smt. Rani

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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