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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
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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
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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
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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,
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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
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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