Sri Papanna A vs Smt B N Siddeshwari on 16 February, 2024

Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services — Free for one month.

Karnataka High Court

Sri Papanna A vs Smt B N Siddeshwari on 16 February, 2024

Author: H.P. Sandesh

Bench: H.P. Sandesh

                                  1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 16   th
                                  DAY OF FEBRUARY, 2024
                                                                 R
                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                R.S.A. NO.1247/2023 (PAR)

BETWEEN:

1.     SRI PAPANNA A.,
       S/O LATE ANNAIAH,
       AGED ABOUT 77 YEARS,
       HINAKAL VILLAGE, KASABA HOBLI,
       MYSURU TALUK
       MYSURU DISTRICT-570 017.                    ... APPELLANT

          (BY SRI C.M.NAGABHUSHAN, ADVOCATE FOR
                  SRI ANANDA K., ADVOCATE)
AND:

1.   SMT. B.N. SIDDESHWARI
     W/O SHIVASHANKARAIAH,
     D/O LATE B.S. NAGARAJ,
     AGED ABOUT 70 YEARS,
     R/AT NO. 284, 22ND MAIN ROAD,
     20TH CROSS, VIJAYANAGAR III STAGE,
     'C' BLOCK, MYSURU - 570 017.

2.   SMT. B.N. CHAMNDRAPBHA,
     W/O JAGANNATH PELLAGAR,
     D/O LATE B.S. NAGARAJ,
     AGED ABOUT 68 YEARS,
     R/AT NO. 53/1, 5TH A CROSS,
     RANGA RAO ROAD,
     SHANKARAPURAM,
     BENGALURU - 560 004.
                             2




3.   SRI S.P. KARTHIK,
     S/O LATE P. SHREEKANTA PRASAD AND
     LATE. B.N. BHUVANESHWARI
     AGED ABOUT 44 YEARS,
     R/AT NO.284, 22ND MAIN ROAD,
     20TH CROSS VIJAYANAGAR III STAGE,
     C BLOCK, MYSURU- 570 017.

4.   SMT. B.N. LEELAVATHI,
     W/O. H.S. VISHWANATH
     D/O LATE B.S. NAGARAJ,
     AGED ABOUT 63 YEARS,
     R/AT NO.102, 9TH MAIN ROAD,
     SWIMMING POOL ROAD,
     SARASWATHIPURAM,
     MYSURU- 570 009.

5.   SMT. B.N. GIRIJESHWARI,
     W/O. DR. G.S. DILEEP KUMAR
     D/O LATE B.S. NAGARAJ
     AGED ABOUT 60 YEARS,
     R/AT NO. 403/75, GOWRI NILAYA,
     7TH CROSS, 1ST BLOCK,
     JAYANAGAR,
     BENGALURU - 560 011

6.   SMT. NAGARAHNAMMA GURUDATT
     W/O LATE. GURUDATT,
     AGED ABOUT 83 YEARS,
     R/AT NO.2897,
     BEHIND LAW COURT,
     SARASWATHIPURAM,
     MYSURU- 570 009.

7.   SRI. S.G. SIDDESH,
     D/O. LATE GURUDATT,
     AGED ABOUT 69 YEARS,
                               3



     R/AT NO.2897,
     BEHIND LAW COURT,
     SARASWATHIPURAM,
     MYSURU-57 009.

8.   SRI. S. SHIVAPRAKASH,
     S/O. LATE GURUDATT,
     AGED ABOUT 67 YEARS,
     R/AT NO.2897,
     BEHIND LAW COURT,
     SARASWATHIPURAM,
     MYSURU-57 009

9.   SMT. PRAPULLA SHANKAR
     D/O LATE B.S. NAGARAJ,
     AGED ABOUT 64 YEARS,
     R/AT NO. 2897,
     BEHIND LAW COURT,
     SARASWATHIPURAM,
     MYSURU-57 009

10 . SMT. GOWRAMMA KUMARASWAMY
     W/O S. KUMARASWAMY,
     AGED ABOUT 69 YEARS,
     R/AT NO. 179/A,
     "SAPTHAGIRINIVASA",
     2ND A MAIN ROAD,
     OPP. GANAPATHI TEMPLE ROAD,
     GOKULAM II STAGE,
     MYSURUR- 570 002.

11 . SMT. SHAMANTH K.,
     D/O S. KUMARASWAMY,
     AGED ABOUT 49 YEARS,
     R/AT NO. 179/A,
     "SAPTHAGIRINIVASA",
     2ND A MAIN ROAD,
     OPP. GANAPATHI TEMPLE ROAD,
                            4



    GOKULAM II STAGE,
    MYSURUR- 570 002.

12 . SRI. S.K. LINGARAJ,
     S/O S. KUMARASWAMY,
     AGED ABOUT 47 YEARS,
     R/AT NO. 179/A,
     "SAPTHAGIRINIVASA",
     2ND A MAIN ROAD,
     OPP. GANAPATHI TEMPLE ROAD,
     GOKULAM II STAGE,
     MYSURUR- 570 002.

13 . SRI. K. SIDDARAJ,
     s/O S. KUMARASWAMY,
     AGED ABOUT 45 YEARS,
     R/AT NO.179/A,
     "SAPTHAGIRINIVASA",
     2ND A MAIN ROAD,
     OPP. GANAPATHI TEMPLE ROAD,
     GOKULAM II STAGE,
     MYSURUR- 570 002.

14 . SMT. SIDDALINGAMMA @ K.SHOBHA,
     D/O S. KUMARASWAMY,
     AGED ABOUT 42 YEARS,
     R/AT NO.179/A,
     "SAPTHAGIRINIVASA",
     2ND A MAIN ROAD,
     OPP. GANAPATHI TEMPLE ROAD,
     GOKULAM II STAGE,
     MYSURUR- 570 002.
                                         ... RESPONDENTS

                (BY SRI M.R.VIJAYA KUMAR, &
        SRI G.BALAJI NAIDU, ADVOCATES FOR C/R13;
 R1 TO R5, R10 TO R12 & 14, VIDE ORDER DATED 26.10.2023,
     SERVICE OF NOTICE TO R6 TO R9 DISPENSED WITH)
                              5




     THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 10.04.2023
PASSED IN R.A.NO.68/2022 ON THE FILE OF THE IV
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU,
DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED
03.07.2020 PASSED IN F.D.P.NO.82/2013 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE, AND CJM, MYSURU ALLOWING
THE PETITION.

     THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 06.02.2024 THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:


                     JUDGMENT

1. This matter is listed for admission. Heard the

learned counsel for the appellant and also the learned

counsel for the respondents and reserved for orders.

2. The factual matrix of case is that the

respondent Nos.1 to 5 who are the legal representatives of

one Sri.B.S.Nagaraj have filed FDP No.82/2013 before the

Trial Court under Order 20 Rule 18 R/w Section 151 of CPC

contending that they have instituted the suit against the

respondents in O.S.No.93/2001 for the relief of partition
6

and separate possession of his 1/3rd share in respect of the

suit schedule properties and also for permanent injunction.

The said suit came to be decreed in favour of the

petitioner/plaintiff on 16.03.2007 entitling the plaintiff for

1/3rd share in the suit ‘A’ and ‘B’ schedule properties by

metes and bounds. It was further ordered and decreed that

the defendant Nos. 5 to 9 together were entitled for 1/3rd

share in the suit ‘A’ and ‘B’ properties. It was further

ordered that the sale deed executed by Gurudatt in favour

of the defendant No.10 who is the appellant herein in this

appeal is not binding upon the plaintiff and the defendant

Nos.5 to 9. The prayer of defendant Nos.2 and 3 was

dismissed. The appellant herein has filed an appeal in

R.F.A.No.1215/2007 challenging the judgment and decree

passed in O.S.No.93/2001, which came to be dismissed on

12.12.2012. Thereafter, they have initiated the FDP

proceedings i.e., F.D.P No.82/2013 seeking for final decree
7

consequent upon the judgment and decree passed in

O.S.No.93/2001.

3. The Trial Court having taken note of the petition

filed for final decree and also considering the finding of the

High Court passed in R.F.A.No.1215/2007 confirming the

judgment of the Trial Court. The Tahasildar of Mysuru taluk

was appointed as a Court commissioner to demarcate the

property as per the preliminary decree as per the order

dated 07.08.2017 and accordingly the Court commissioner

has submitted his report to the Court on 22.02.2018.

Thereafter, the commissioner report was rejected by the

Court by its order dated 23.10.2018 with a direction to the

Court commissioner to submit the fresh report after strictly

following the memo of instructions of all the parties and

their counsel in their presence. An enquiry into mesne

profits claimed by the respondent Nos.5 to 9 by way of I.A

No.13 came to be dismissed on 23.10.2018. Thereafter, the

respondent Nos.5 to 9 had filed I.A.No.30 and I.A.No.31
8

under Section 151 of CPC to recall the order dated

23.10.2018. I.A.No.30 was allowed and I.A.No.31 which

was filed to recall the order dated 23.10.2018 rejecting the

commissioner’s report was dismissed. Thereafter, fresh

commission warrant was issued and the Court

commissioner after completion of commission work has

submitted his report on 22.11.2019.

4. The legal heirs of the deceased petitioner have

filed a memo stating that they have not objections to the

commissioner’s report and the same may be accepted. The

counsel for the petitioner has filed another memo on

14.02.2020 seeking allotment of ‘B’ share as per the

commissioner’s sketch. The respondent No.10 has filed

objections to the commissioner’s report. The same was also

considered by the Trial Court. The respondent No.10 has

filed another memo on 17.02.2020 seeking the allotment of

share as per the commissioner’s report. Thereafter,
9

commissioner was also called before the Court and he was

examined as CW1 and got marked Ex.C1.

5. The Trial Court having taken note of the

commissioner’s report and also the evidence for having

divided the properties as part A, B and C considered the

same and in detail discussed in paragraph No.19 and

commissioner report is in respect of the making part A , B

and C. The appellant herein raised his contention that

eastern, western and southern boundaries of ‘A’ schedule

property and boundaries of ‘B’ schedule property in the

petition differs from the decree, but not led any evidence in

order to substantiate the same. Having considered this and

also discussion made in respect of commissioner report and

commissioner report is accepted. The portion of the

property described as part B, the commissioner sketch is

allotted to share of original petitioner. The portion of the

property described at part C is allotted to the share of
10

respondent Nos.5 to 9 together leaving the property

described as part A to the respondent No.10.

6. Being aggrieved by the said allotment the

appeal is filed by the appellant herein in R.A.No.68/2022

and appellate Court having considered the grounds urged in

the appeal and also an application was filed under Order 41

Rule 27(b) R/w Section 151 of CPC and formulated the

points as:

1) Whether the application filed by the
appellant under Order 41 Rule 27(b) R/w
Section 151 of CPC, deserves to be allowed?

2) Whether the impugned order dated
03.07.2020 of F.D.P No.82/2013 passed by
the Trial Court calls for interference with the
finding giving by the Trial Court?

3) What Order?

7. The First Appellate Court having re-assessed the

material available on record, answered both the points as
11

negative. Hence, this second appeal is filed before this

Court. The main contention of the appellant’s counsel

before this Court is that both the Courts have failed to

consider that either the plaintiff or his LRs’ i.e., the

respondent Nos.1 to 5 nor the defendant Nos.5 to 9 i.e.,

the respondent Nos.10 to 14 herein never raised any

objections when the appellant made constructions and thus,

they have waived all objections regarding constructions

made by the appellant and as such, the respondent Nos.1

to 5 and 10 to 14 are entitle for 1/3rd share in the vacant

land and not in the building constructed in the suit schedule

property. It is also contended that both the Courts have

failed to consider that, the partition is to be equitable. The

suit schedule properties were vacant when the same were

purchased by Gurudatt i.e., the husband of respondent

No.6 and father of respondent Nos.7 to 9, B.S.Nagaraju

i.e., the father of respondent Nos.1, 2, 4 and 5 and grand

father of respondent No.3 and Kumarswamy i.e., husband
12

of respondent No.10 and father of respondent Nos.11 to 14

and each of them are entitle for 1/3rd share in the vacant

land. If one co-sharer has constructed buildings which was

not objected by the other co-sharer, the portion of the land

on which the construction is made is to be allotted to the

share who constructed the buildings. Therefore, the

appellant is entitle for the properties shown as part C in the

Court commissioner’s report. Both the Courts fail to take

note of the said fact into consideration and construction of

immovable property is an improvement in the property

believing in good faith that, he is entitled for the same

absolutely, in such a situation, he must be asked to pay the

value of the land to the other co-owners and in this case,

what Gurudatt, i.e., the husband of respondent No.6 and

father of respondent Nos.7 to 9 and others have purchased

only vacant land and construction and amount spent by the

appellant ought to have taken note of by both the Courts.
13

8. The learned trial Judge had decline to allot the

same on the ground that, the appellant has raised any

contention regarding the constructions either in the suit or

in the R.F.A and without raising such contentions in the said

proceedings, the appellant cannot raise such contention in

the Final Decree proceedings which is totally incorrect and

without verifying the records, the Trial Court passed the

said order. As a matter of fact, the plaintiff i.e., the father

of respondent Nos.1, 2, 4 and 5 and grand father of

respondent No.3 in O.S.No.93/2001 at the time of filing the

suit had also filed an I.A under Order 39 Rule 1 and 2 of

CPC seeking temporary injunction against defendant No.10

i.e., Appellant herein and to the said application, the

appellant had filed his objection on 06.10.2003 itself

wherein appellant had taken the specific contention

regarding the constructions in the land in question. Hence,

the said finding is against the records.

14

9. The counsel also would submits that the

appellant has constructed the shops in the suit schedule

property and the same was within the knowledge of the

respondents herein. They themselves have taken the

contention that construction was made and let out the same

on rent and made an application under Order 20 Rule 12 of

CPC. Thus, it is very clear that the appellant has made

construction in the suit schedule properties. Most of the

constructions are located in the property shown as part C of

Court commissioner report. The Trial Court also while

passing an order on I.A.No.30, made an observation with

regard to the existence of constructions in the suit schedule

properties.

10. It is also contended that said Gurudatt has

executed an sale agreement dated 30.09.1991 and

thereafter, he had also executed a registered general power

of attorney on 16.02.1995 both are marked as exhibits

before the trial Court in O.S.No.93/2001 and based on the
15

said documents, the appellant is in possession of the suit

schedule property right from the year 1991 and based on

the registered GPA, the appellant is entitle to construct the

buildings in the suit schedule properties. Accordingly, he

has raised several commercial buildings and shops. Both

the Courts committed an error in not considering the same.

Hence, the impugned order dated 03.07.2020 is not

sustainable as the learned trial Judge has failed to consider

all the materials. When the respondents themselves have

admitted regarding the constructions is made by the

appellant in the suit schedule properties, the learned trial

Judge has erroneously given a finding that, the appellant

has not raised any contention regarding construction which

is not sustainable. The learned trial Judge while passing the

impugned order at paragraph 23 of the order has

erroneously observed that the priority has to be given to

the appellant and respondent Nos.5 to 9 while allotting the
16

share as per preliminary decree, nowhere in the judgment

and decree, the same is observed.

11. On the other hand, both in original suit and in

Regular First Appeal held that, the sale deed executed by

Gurudatt in favour of the appellant is not binding on the

respondent Nos.1 to 5 and 10 to 14 in respect of their 1/3rd

share each in the suit schedule property. Hence, the

appellant has right to claim a particular portion of the

property as per the sketch prepared by the Court

commissioner. The counsel also would vehemently contend

that both the Trial Court as well as the First Appellate Court

have not considered the same and ought to have allotted

the part C schedule property in favour of the appellant. The

counsel also would vehemently contend that while allotting

the share also the Court ought to have taken the law of

equity.

12. The counsel also would vehemently contend

that when the order passed on I.A.No.13 and I.A.No.30
17

matter was taken before this Court by filing the writ

petitions and stay was granted and later on permission was

given to file appeal and accordingly, an appeal was filed and

disposed of. The counsel would vehemently contend that

that properties are not the joint family property but only

purchased the property jointly. The counsel would

vehemently contend that the appellant is not party to

encumber the property and also specific contention was

taken that the sale agreement was executed and based on

said sale agreement, O.S.No.494/2018 is also filed. The

claim is made based on the unregistered sale deed. The

plaint and written statement has also produced along with

an application before this Court. Hence, this Court has to

consider the same.

13. The counsel also would vehemently contend

that this Court has to frame substantial question of law

whether both the Courts are justified in ignoring the

evidence on record that the appellant has raised several
18

constructions, whether both Courts are justified in declining

to allot part C portion of the property to the appellant,

though he proved that he has raised several constructions,

whether both the Courts are justified in allotting part C

portion of the property to the respondent Nos.10 to 14 in

believing the oral statement of respondent Nos.10 to 14

regarding alleged litigations though there is no evidence on

record in that regard. The First Appellate Court committed

an error in not invoking not Order 41 Rule 31 of CPC.

14. The counsel has also filed memo along with

citations, judgment of Privy Council dated 28.01.1937 in

case of Nutbehari Das V/s Nanilal Das and referring this

judgment, the counsel brought to notice of this Court

discussion made in page 421 that perhaps the most

ordinary method when one co-sharer has put up buildings

on the land is to allot to him for his share a portion of the

land which contains his building. When this cannot be done

or would not be fair, it may nevertheless be unreasonable
19

and unnecessary to treat such co-sharer exactly as the

others.

15. The counsel also relied upon the judgment

reported in AIR 1962 Patna 300 in case of Abdul Sattar

V/s Mohammad Zahoo and brought to notice of this

Court paragraph No. 6 wherein discussion was made that in

such a case, the improver stands as a mere volunteer and

cannot, withouit the consent of his co-owner, lay the

foundation for such an owner will be given an allotment, so

far as is possible, that may enable him to keep the

advantage of his improvements. But it requires a special

case and a very strong case for a Court to go any further

than that.

16. The counsel also relied upon the judgment

reported in AIR 1965 KERALA 207 in case of

Mammathu and others V/s Kathijumma Umma and

others and brought to notice of this Court paragraph No.3

wherein discussion made with regard to the law declines to
20

compel one co-tenant to pay for improvements made

without his authorization; but it will not, if it can avoid so

inequitable a result, enable a co-tenant to take advantage

of the improvements for which he has contributed nothing.

When the common lands come to divided, an opportunity is

offered to give opportunity is offered to give the co-tenatn

who has enhanced the value of a parcel of the premise the

fruits of his expenditures and industry, by allotting to him

the parcel so enhanced in value, or as much thereof as

represents his share of the whole tract. It is the duty of

equity to cause these improvements to be assigned to their

respective owners so far as can be done consistently with

an equitable partition. This lays down a general rule of

equity, but is subject to the condition, that no injustice is

caused to the other co-tenants.

17. The counsel also relied upon the judgment

reported in (2011) 4 Supreme Court Cases 240 in case

of H.Siddiqui (Dead by LRs’) V/s A.Ramalingam and
21

brought to notice of this Court paragraph No.21 wherein

discussed with regard to Order 41 Rule 31 of CPC the said

order and rule provide guidelines for the appellate Court as

to how the Court has to proceed and decide the case. The

provision should be read in such a way as to require that

the various particulars mentioned therein should be taken

into consideration. Thus, it must be evidence from the

judgment of the appellate Court that the Court has properly

appreciated the facts/evidence, applied its mind and

decided the case considering the material on record. It is

mandatory for the appellate Court to independently assess

the evidence of the parties and consider the relevant points

which arise for adjudication and the bearing of the evidence

on those points. The counsel referring this judgment would

contend that the Trial Court as well as First Appellate Court

have not considered the same.

18. The counsel relied upon the judgment of

Karnataka in ILR 2012 KAR 1020 in case of
22

Bangarappa V/s Rudrappa and another wherein this

Court made an observation in paragraph No.7 with regard

to Order 41 Rule 31 of CPC. The appellate Court, at the first

instance is expected to re-appreciated or re-assess the

evidence and apply its mind to the facts of the case in the

light of the arguments advanced by learned counsel for the

parties, it would not amount to substantial compliance of

these provisions under Order 41 Rule 31 of CPC, if not

assessed the material on record, an independent

assessment of relevant evidence on all points. The First

Appellate Court has to frame the points for determination

and examine same independently in the light of the

material available on record. Merely asking the question as

to whether the judgment and decree is correct or legal or

valid is hopelessly an inadequate method of meeting the

requirement of this legal provision. The counsel referring

these judgments would vehemently contend that both the

Courts have committed error. The counsel has also filed a
23

memo and framing additional substantial question of law

vide memo dated 06.02.2024.

19. Per Contra, the counsel appearing for the

respondents has also filed synopsis and also the document

before the Court and contend that the property was

purchased on 04.06.1964 i.e., A and B schedule property

was jointly by B.S.Nagaraj, Gurudatt and

Dr.S.Kumaraswamy under a registered sale deed is not in

dispute. It is the contention of the respondents that the

said Gurudatt has executed an agreement to sell on

30.09.1991 and also appellant claims to have obtain the

registered sale deed in respect of both the suit schedule A

and B properties alone on 04.12.2000. It is not in dispute

that the suit is filed by one late B.S.Nagaraj for claiming

1/3rd share in respect of A and B schedule properties in

O.S.No.93/2001 and also defendant No.10 i.e., appellant

herein has filed written statement without any counter

claim admitting that he has been put into possession of
24

entire suit schedule A and B property as on 30.09.1991

under sale agreement, as such there is no any such

pleading that he has developed entire suit schedule A and B

property either before filing the suit or as on the date of

filing of the suit. During the pendency of the suit, an

application was filed under Order 39 Rule 1 and 2 i.e., on

26.09.2003 restraining the appellant from carrying out any

construction in the suit schedule A and B properties pending

disposal of the suit. An order of status quo to be maintained

was passed by the Trial Court. However, the said order was

not continued as admitted by the appellant.

20. The appellant has led his evidence 24.05.2005

admitting the possession of entire suit A and B schedule

property and marked the photographs as Ex.D16(a) to

Ex.D19(a) in respect of suit schedule A and B properties

which are vacant lands as on 24.05.2005. The Trial Court

passed judgment and decree granting 1/3rd shrae in the

year 2007. Being aggrieved by the order an appeal was
25

filed and it was dismissed in the year 2012 and S.L.P has

also filed, the same was also dismissed. The decree

attained its finality in the year 2013. The final decree

proceedings was initiated in the year 2013. The statement

of objections also filed with an intention to frustrate the

decree contending that MUDA is the necessary party. It is

also contended that at the instance of appellant, KIADB

made an attempt to implead themselves in the FDP

proceedings and their applications came to be rejected. On

the instance of the appellant, the member of MUDA,

A.Krishna who is nephew to the appellant influenced MUDA

to file application for impleading, the same also rejected.

The appellant has failed to succeed in the attempt to drag

the proceedings by influencing MUDA to impleading

themselves and also appellant made his nephew A.Krishna

to come on record on fabricated documents on 02.04.2018

and I.A was rejected on 24.04.2018. Being aggrieved by

the order said A.Krishna preferred writ petition and the
26

same came to be disposed of confirming the rejection of

this application.

21. The respondent Nos.5 to 9 have filed an

application under Order 39 Rule 1 and 2 of CPC against

which the appellant had undertaken before the Court below

that he has not constructing any building and in the petition

schedule property and also he will not lease the said

property to the any other person till the disposal of the case

i.e., on 29.05.2018. One Gopal Chowdari and Cheeragi

Perbia claming to be a lessee under A.Krishna from

01.02.2018 filed an application to implead them and also

allowed his brother’s son A.Krishna to make use of northern

portion of suit schedule property for augmenting his

income. He also admitted that he permitted the said

Krishna to enter upon the northern portion of the FDP

schedule proceedings. The impleading application also

rejected on 20.09.2018. Being aggrieved by the said order,

writ petition was also filed, the same came to withdrawn.
27

The commissioner warrant was issued to expedite the

commissioner work. The commissioner has submitted the

report and objections are filed to the same. The

commissioner was also summoned and examined before the

Trial Court. The appellant has filed a memo for allotment of

his share in respect of C portion described in the

commissioner report. Ultimately, the Trial Court allotted A

to C schedule properties to the parties. The order passed by

the executing Court in F.D.P.No.82/2013 is well justified

and in accordance with law. Though the writ petition was

filed before the Court, the same was dismissed as

withdrawn by order dated 07.02.2022 and filed an appeal.

The appeal also dismissed. Being aggrieved by the order of

dismissal, the present Regular Second Appeal is filed.

22. The counsel would vehemently contend that the

Court has to take note of a conduct and stand of the

appellant in interfering with due process of law, the same

nothing but an abuse of process of law, which is apparent
28

on the face of it, as he intend only to drag on the

proceedings on one or the other way only to deprive the

valuable rights and benefits of the order of the Courts. The

appellant before this Court unnecessarily dragging on the

proceedings, he will arrive for a settlement, he even files an

application before the executing Court for adjournment

stating that the matter is likely to be settled.

23. The counsel would vehemently contend that in

order to substantiate the contention, the documents are

also placed before this Court along with the synopsis, the

same has to be looked into. The counsel also in support of

his argument he relied upon the judgment reported in AIR

1977 SC 292 in case of Muthangi Ayyanna V/s

Muthangi Jaggarao and others wherein Apex Court held

that in a case of partition and final decree cannot amend or

go beyond the preliminary decree on a matter determined

by the preliminary decree and brought to notice of this

Court paragraph No.5 wherein an observation is made that
29

the claim made by and against individual parties mentioned

in the preliminary decree if he urges that it cannot be

extended to all parties, including the defendant No.4, if the

terms of the preliminary decree are binding. The contention

is based on the well recognized proposition that a final

decree cannot amend or go beyond the preliminary decree

and the matter determined by the preliminary decree.

24. The counsel also relied upon the judgment

reported in AIR 1978 Allahabad 178 in case of Prabhoo

V/s Doodh Nath and other wherein held that while

exercising the power under Section 39 an observation is

made that for demolition of construction made on joint land

by a co-owner without the consent of other co-owners,

factors to be considered by the Court. One co-owner has

not in law any right to appropriate land to himself out of

joint land against the consent of his co-owner. High handed

action by one co-owner cannot be encouraged by Courts of

law. Unless some special equity is shown in favour of the
30

defendant in a suit for demolition of constructions, which

are in the process of being made by him without the

consent of the co-owners a decree for demolition should not

be refused especially when the co-owners have come to

Court at the earliest.

25. The counsel also relied upon the judgment

reported in AIR 1970 ALLAHABAD 648 in case of Mohd.

Ismail V/s Ashiq Husai and brought to notice of this

Court Section 52 wherein held that otherwise dealt with,

includes raising of constructions wrongfully, suit for

possession of vacant land-defendant putting up

superstructure after filing of suit- cannot claim advantage

out of the buildings wrongfully put up.

26. The counsel also relied upon the judgment

reported in AIR 1985 MADRAS 283 in case of Rukmani

and others V/s H.N.THirumalai Chettiar wherein held

that rights of co-owners inter se, a co-sharer cannot be

allowed to cause prejudice to the other co-sharers by
31

putting up a substantial construction during the pendency

of suit for partition filed by the co-sharers.

27. The counsel also relied upon the judgment of

Bombay High Court reported in AIR 2008 (NOC) 2884

(BOM.) in case of Anoop V/s MOhta wherein held the

Court has taken note of Section 2 and 3, in a suit for

partition, defendant carrying out the construction on the

said plot pending suit, it would be at his own risk, party

marking such construction pending litigation cannot claim

benefit of partition act unless agreed by both the parties,

specifically at stage of execution of decree.

28. The counsel also relied upon the judgment

reported in AIR 1991 MADHYA PRADESH 15 in case of

Smt.Lalita James and others V/s Ajit Kumar and

other wherein held that suit for separate possession of

undivided property, maintainability, A purchaser from co-

owner of a portion of undivided property, not entitled to

possession of any particular part of joint property, his right,
32

if any, would be joint ownership or co-ownership and not to

exclusive ownership of any particular part of joint property,

purchaser, transferee only entitled to enforce a partition of

joint estate nothing more.

29. The counsel also relied upon the judgment

reported in AIRONLINE 2009 SC 648 and brought to

notice of this Court paragraph No.5 wherein an observation

is made that as the partition had never been effected, the

question of handing over the possession either to the

present appellant/plaintiff or her vendee could not arise.

Therefore, her possession was merely a forcible possession

and was not valid the suit was dismissed vide judgment and

decree dated 19.12.1991.

30. The counsel also relied upon the judgment

reported in AIR 2009 SUPREME COURT 2735 in case of

Ramdas V/s Sitabai and others wherein held that

purchase of undivided share of co-sharer, right of purchaser

to claim possession under Section 54. A purchaser cannot
33

have a better title than what vender had. An undivided

share co-sharer may be a subject matter of sale, but

possession cannot be handed over to the vendee unless the

property is partitioned by metes and bounds amicably and

through mutual settlement or by a decree of the Court.

31. The counsel also relied upon the judgment

dated 09.04.2019 in the High Court of Judicature at Madras

and brought to notice of this Court paragraph No.18

wherein discussed the though there is no right for the co-

owner to transfer his undivided share, but the purchaser

cannot claim any exclusive possession based on the specific

boundaries and his rights will be dependent on the shares

that may be allotted to his vendor in the partition suit.

However, considering the fact that the second defendant

has taken a different stand and sold the properties and the

purchaser step into the shoes of the vendor and whatever

rights his vendor gets in the property, out of which heh as

to workout the same in the final decree proceedings.
34

Accordingly, the petitioner is at liberty to get himself

impleaded in the final decree proceedings and workout his

remedy as per law. It is for the Trial Court to analyse and

take a decision as to whether the pendent lite purchaser

can seek for any equity or not and decide the issue on

merits.

32. In reply to the arguments of respondents’

counsel, the appellant’s counsel also placed a sketch

prepared by the counsel and the property can be re-

adjusted having taken note of construction made by the

party and placed his separate sketch, the same is taken on

record. The counsel also in his reply would vehemently

contend that the KIADB and MUDA not came in the record

at the instance of the appellant and contentions of the

respondents cannot be accepted.

33. Having heard the appellant’s counsel and also

the counsel appearing for the respondents, this Court has to

consider the material on record as to whether this Court
35

can frame substantial question of law as contended by the

appellant’s counsel in keeping the substantial question of

law raised by the appellant in this appeal and whether the

Court can invoke Section 100 of CPC.

34. The counsel also filed an application under

Order 41 Rule 27 of CPC seeking permission to produce

additional documents. Whether this Court can entertain an

application filed under Order 41 Rule 27 of CPC.

35. Having heard the learned counsel for the

appellant and also the learned counsel for the respondents

and also the application filed under Order 41 Rule 27 R/w

Section 151 of CPC and additional documents which are

produced are unregistered sale deed dated 10.01.1992

executed by Sri.B.S.Nagaraj and Sri.Gurudatt and

Sri.S.Kumaraswamy and also produced certified copy of

plaint in O.S.No.494/2018 filed by Sri.A.Krishna based on

the unregistered sale deed dated 10.01.1992 and also the

copy of the written statement filed in the said suit and also
36

I.A.No.7 filed under Order 7 Rule 11(d) and objections are

also filed to the said I.A and also filed certified copy of the

order dated 11.07.2022. These are the documents

pertaining to alleged unregistered sale deed dated

10.01.1992 and based on the said alleged sale deed the

suit is filed and defenses were taken in the written

statement. I.As’ are also filed and orders are passed on the

said I.As’. The additional documents are not required to

consider the present Regular Second Appeal which has been

arised out of order passed in final decree petition by the

Court below. Admittedly, already the suit is filed based on

alleged unregistered sale deed and the same is pending for

consideration and in respect of unregistered sale deed, the

Trial Court has to decide the issues and scope of FDP

proceedings is very limited and in the FDP proceedings, the

same cannot be decided. Hence, I do not find any ground to

allow the application along with documents. Apart from that

similar application has filed before the First Appellate Court.
37

The First Appellate Court also formulated the point as

whether those documents are necessary to decide the issue

involved between the parties. The First Appellate Court has

given the finding in respect of the said application also in

paragraph No.44 that the additional documents produced

without any bonafide ground. The FDP proceedings arising

out of judgment and decree passed in O.S.No.93/2001 i.e.,

with regard to the preliminary decree and nothing remains

for the Trial Court to adjudicate the same, the documents

which have been produced before the First Appellate Court

have also clearly discloses that the same are not relevant

for consideration and this R.S.A. Hence, I do not find any

error committed by the First Appellate Court in coming to a

conclusion that those documents are not necessary to

decide the issues involved between the parties and the

present application is also cannot be entertained and those

documents are not necessary to decide the present R.S.A.
38

36. Now with regard to passing of an order

impugned in FDP No.82/2013 dated 03.07.2020, the Trial

Court while taking into consideration, accepted the

commissioner report. The main contention of the counsel

appearing for the appellant that building was constructed

and invested huge money for the same and the same was

not taken note of by the Trial Court as well as by the First

Appellate Court. It is also the contention of the appellant’s

counsel that both the Courts fails to take note of the same.

It has to be noted that the issue with regard to allotment of

share and the claim of the appellant’s counsel also ought to

have allotted share in respect of part C as shown in the

commissioner’s sketch. It is the contention of the appellant

that he had put up the construction and invested money.

The commissioner report is clearly discloses that there is a

building and the claim of the appellant also that the building

was let out to the tenants and also records reveals that

number of applications are filed by MUDA, KIADB and
39

tenants and also one A.Krishna who has filed the suit for

the specific performance based on unregistered sale deed.

All attempts were failed before the FDP Court rejecting the

applications filed by all of them.

37. It is the contention of the respondents that

those applications are filed at the instance of the appellant

and appellant’s counsel submits that the same are not filed

at the instance of the appellant. But, material discloses that

all attempts are made before the Trial Court to stop the

proceedings in the FDP No.82/2013, the said applications

are rejected, the same are challenged and ultimately

attained finality. It is also not in dispute that earlier writ

petitions are also filed before this Court and the writ

petitions are also withdrawn. In another writ petition

permission is given to file the appeal and appeal has also

dismissed.

38. Having considered the factual aspects of the

matter is also concerned, it is not in dispute that the
40

property was originally purchased by three persons. It is

the claim of the appellant that he had purchased the

property by way of sale agreement in the year 1991 and

power of attorney was executed in the year 1995 and

ultimately sale deed was executed on 04.12.2000. It is also

important to note that the suit was filed in the year 2001

itself for partition. The Trial Court taken note of the fact

with regard to the construction is concerned and comes to

the conclusion that not made the construction immediately.

Only during the pendency of the suit, construction was

made. No doubt the counsel appearing for the appellant

relies upon judgment of the Privy council judgment referred

supra, an observation is made that perhaps the most

ordinary method when once co-sharer has put up buildings

on the land is to allot to him for his share, a portion of the

land which contains his building. But in the case on hand it

has to be noted that the persons who have purchased the

property jointly have not put up the construction. The
41

present appellant contend that he had purchased the

property from one of the co-sharer and all the other co-

owners have not joined in executing the sale deed.

Apparently, the very title is very defective. He would get

the share in respect of only his vendor share.

39. It is important to note that the counsel also

relied upon another judgment of Patna High Court wherein

also an observation is that prima facie such a owner will be

given an allotment, so far as is possible, that may enable

him to keep the advantage of his improvements and other

principles are also laid down invoking Order 41 Rule 31 of

CPC and also to take note of the improvement. No dispute

with regard to said fact is concerned. But, the material is

very clear that only after filing of the suit, the alleged

construction is made by the appellant. No doubt the

existence of the building is also reported in the

commissioner report as contended by the appellant’s

counsel.

42

40. The counsel for respondent has also relied upon

several judgments of the Apex Court and also the judgment

of different High Courts. The Apex Court in judgment

referred supra reported in AIR 1977 SC 292 held that final

decree cannot amend or go beyond the preliminary decree

on a matter determined by the preliminary decree. Hence,

it is clear that in FDP proceedings, the Court has to proceed

based on the preliminary decree, not beyond the

preliminary decree. The judgment of the Allahabad High

Court referred supra reported in AIR 1978 ALL 178 held

that if any construction is made on joint land by a co-owner

without consent of other co-owners, unless the special

equity is shown in favour of the defendant in a suit for

demolition of constructions there cannot be any lenience.

The other judgment of Allahabad High Court is also very

clear with regard to ” otherwise dealt with ” includes raising

of constructions wrongfully. But in case on hand, it has to

be noted that the property purchased is unidentified and he
43

purchased the property from one co-owner and construction

was made after filing of suit. He cannot claim advantage of

out of buildings wrongfully put up. The said judgment is

aptly applicable to the case on hand. The other judgment of

Madras High Court is also very clear that a co-sharer cannot

be allowed to cause prejudice to the other co-sharer by

putting up a substantial construction during the pendency

of a suit for partition filed by the co-sharers. It is admitted

fact that the suit was filed in the year 2001 itself for the

partition and also relief is sought, the sale deed is not

binding. The Bombay High Court also held that the

defendant carrying constructions on said plot pending suit,

it would at his own risk, party making such construction

pending litigation cannot claim benefit of partition unless

agreed by both the parties. In the case on hand the plaintiff

and other defendants have not given any consent. The

other judgments which have been relied upon by the

counsel for respondents are also aptly applicable to the
44

case on hand. The Supreme Court also in the case reported

in AIR 2009 SCC 2735 held that invoking Section 54 that

purchase of undivided share of co-sharer if he claims any

possession, he cannot have a better title than what Vendor

had and if any construction is made, he cannot seek for the

particular constructed area.

41. The Trial Court also while considering the

material on record, taken note of the fact that particularly

in paragraph No.22 if any construction is made, the same is

done at his own risk and on that basis, he cannot claim the

portion of the property where the constructions have been

made to his share. The Trial Court also taken note of part

A, B and C portions which have been marked by the

commissioner and taken note of admittedly the appellant

has purchased undivided 1/3rd share of Gurudatt. He cannot

claim the property described as part C to his share as of

right. The Trial Court also taken note of the factual aspects

in paragraph No.23 and also in paragraph No.26 and in
45

detail discussed with regard to the allotment of share is

concerned. The First Appellate Court also on re-appreciation

of both oral and documentary evidence while answering

point No.2 considered the ground urged in the appeal,

wherein the appellant specifically contended that he

continued to be in possession of entire schedule property

and there is necessity to allot part C property in his favour

as he has raised various structure and only on the ground

of construction, he seeks the said remedy.

42. The First Appellate Court also taken note of the

fact that final decree cannot go beyond the preliminary

decree and one of the several co-sharers of joint undivided

property has no right to erect the building on land which

forms part of such property so as to materially alter the

conditions thereof without consent of his co-sharer.

43. It is important to note that if such prayer is

considered, it is nothing but a person who is having money

and power if it starts construction in the property which is
46

convenient to him and having potentiality since part C

schedule property surrounded with road on three sides.

Hence, the appellant is particular about the said part C

portion of the property. He cannot take the advantage of

misusing his powers and continuing the construction even

after filing of the suit. No doubt the allotment of share is

based on law of equity and there is no any equity in favour

of the appellant herein since, he had put up the

construction wrongfully when the property was not

identified and property what he has purchased is undivided

property. Apart from that sale is also not by all the owners.

When such being the case, the appellant cannot be placed

in better place and his intention is to take the advantage of

the construction made by him, the same is in violation of

the rights of the other parties and also in order to knock of

the property which is very potential property and hence, the

very contention that both the Courts have committed an

error in not allotting part C schedule property in favour of
47

the appellant cannot be accepted. The person who seeks

the better relief based on law of equity and the Court has to

take note of his conduct and if he has not put up the

construction and enjoyed having constructed the building

and got the benefit, then there would have been force in

the contention of the appellant’s counsel. The wrong doer

cannot be given advantageous position and Court cannot

shut its eyes and pass an order in favour of him. Hence, I

do not find any error committed by the Trial Court in

allotting the shares and the commissioner also taken note

of the fact.

44. The counsel appearing for the appellant in his

argument also placed the sketch which is prepared by him

before the Court and the same cannot be accepted, the

same will also cause inconvenience to others. It is also the

contention of the respondents that the suit is filed by one

A.Krishna based on unregistered document, he is none

other than the relative of the appellant herein. The said suit
48

is also at the instance of the appellant. Whether the same is

at the instance of the appellant or not has to be decided in

suit filed by the said A.Krishna in O.S.No.494/2018. This

Court cannot express any opinion. I do not find any merit to

interfere with the findings of the Trial Court and also the

First Appellate Court in not considering the grounds which

have been urged by appellant herein. Hence, I do not find

any substantial question of law to frame and admit the

same as contended by the appellant’s counsel. This is not a

case for invoking Section 100 of CPC. The appellant has

questioned the earlier judgment and decree before the

appellate Court and he was unsuccessful. Thereafter when

the FDP proceedings has been initiated, all attempts have

been made to scuttle the fruits of the decree. The same is

taken note of by the Trial Court and also by the First

Appellate Court. Hence, it is not a fit case to invoke Section

100 of CPC.

49

45. In view of the discussions made above, I pass

the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

RHS

[ad_2]

Add a Comment

Your email address will not be published. Required fields are marked *