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Judgment
K.S. Mudagal J
Respondents 11 to 13 and 15 in F.D.P.No.20/2006 on the file of the I Addl. Senior Civil Judge, Ballari, have preferred the above appeal challenging the order for drawing up of the final decree. Respondents 1 to 3 in this case were the petitioners in the said case. Respondents 4 to 19 were respondents 1 (a) to (d), respondents 2 to 10 and 14 in the said case. For the purpose of convenience the parties will be referred to henceforth according to their ranks before the trial Court.
The petitioners/plaintiffs are the wife and daughters of one Doddana Gouda. The pedigree of the family is as follows:
Doddana Gouda the husband of plaintiff No.1 predeceased his father Kattebasappa. Plaintiff Nos.1 to 3 being the wife and daughters of Doddagowda filed O.S.No.249/2002 against defendants/ respondents 1 to 10 seeking partition and separate possession of their share in the suit schedule properties. They claimed that there was a partition between Ishwarappa and Kattebasappa. Doddana Gouda being the son of Kattebasappa was entitled to a share in the properties inherited by Kattebasappa from his father. The said suit was contested by respondents/defendants 1 to 10.
On contest, the trial Court by the judgment and decree dated 01.02.2006 partly decreed O.S.No.249/2002 awarding 15.57/100th share to the plaintiffs in suit schedule A, B and item No.1 of C schedule properties. Since the present appellants and respondent No.19 were not parties to the said suit they filed R.F.A.No.771/2008 challenging the judgment and decree in O.S.No.249/2002 along with an application seeking permission to file the appeal though they are not parties to the suit or decree.
The appellants and respondent No.19 claimed that they are the heirs of Ishwarappa and the plaintiffs in O.S.No.249/2002 have included the properties fallen to the share of Ishwarappa also without impleading them as parties to the suit, thereby obtained the decree against their interest behind their back.
This Court on hearing the parties and considering the merits by the judgment dated 29.06.2009 dismissed RFA No.771/2008 holding that if the appellants and respondent No.19 are not parties to the suit, the said decree does not bind them and if they are claiming any independent right over the suit properties it is open to them to question the same by raising objections under Order XXI Rule 97 CPC.
After the dismissal of R.F.A.No.771/2008 one Brahmaramba claiming to be the daughter-in-law of the present appellant No.1 filed R.F.A.No.4188/2013 (Part./Possn.) seeking to set aside the judgment and decree in O.S.No.249/2002 again on the same ground as claimed in R.F.A.No.771/2008. This Court by the judgment dated 28.08.2017 dismissed the said appeal on the ground that the similar appeal in R.F.A.No.771/2008 is already dismissed on merits.
In the meantime, the decree holders filed F.D.P.No.20/2006 before the I Addl. Senior Civil Judge, Ballari, seeking the final decree in terms of the preliminary decree in O.S.No.249/2002. Pending R.F.A.No.771/2008, the appellants filed IAs-2 to 6 in F.D.P.No.20/2006 seeking their impleadment as respondents 11 to 15. The trial Court ignoring the judgment in RFA No.771/2008 and objections of plaintiffs, by order dated 14.09.2009 and 26.11.2009 allowed the said applications holding that they are necessary parties to the final decree proceedings.
On the application of the plaintiffs/respondents 1 to 3 the trial Court appointed the Tahsildar of Ballari taluk for inspection of the suit lands and to submit the report demarcating the shares of the plaintiffs. The Commissioner on executing the commission work submitted his report. The records indicate that for dividing plaint schedule 'B' properties i.e., house property, an advocate was appointed as Commissioner. He submitted his report.
In his report the Tahsildar/Commissioner proposed for division of plaint schedule 'A' item Nos.1 to 9 and 15 lands only. Regarding plaint schedule 'A' item No.8 to 14 he submitted that there was difference in the extent of properties shown in the decree and shown in the record of rights. Therefore, that could not be divided.
The appellants and respondent No.19 filed objections to the Commissioner's (Tahsildar) report again claiming that their properties are included in the shares to be allotted to the plaintiffs/respondents 1 to 3 and commission work is not properly executed. The trial Court on hearing the parties by the impugned order accepted the Commissioner's report so far as item Nos.1 to 6, 8, 9, 15 of 'A' schedule properties and directed to draw the preliminary decree accordingly.
The trial Court holds that plaintiffs' counsel filed memo restricting the claim only in respect of item Nos.1 to 9 and 15 properties and they even gave up claim in respect of item No.7 property as that is a very small bit of land. The trial Court holds that 'B' schedule properties are the house properties and there is no evidence regarding suit schedule 'C' i.e., movable properties. Thus, ordered to draw final decree in terms of the Commissioner's report in respect of item Nos.1 to 6, 8, 9 and 15.
Submissions of Shri Nandish Patil, learned counsel for the appellants:
The appellants and respondent No.19 claimed independent right in plaint schedule item Nos.1 to 3, 7 to 9, 13 and 14. The trial Court has not given any finding on that. Pending the final decree proceedings, respondent No.6-Mangalamma died and her heirs were not brought on record and therefore the entire petition abated. The trial Court did not conclusively decide all the points raised. Reiterating the other grounds urged in the appeal memo he seeks setting aside the order of the trial Court.
Submissions of Shri B.Chidananda, learned counsel for respondents 1 to 3:
Plaintiffs being widow and the daughters of Doddabasappa @ Dodda Gouda are fighting since 22 years to get their legitimate share. The other respondents to defeat the preliminary decree passed in favour of petitioners/plaintiffs set up respondent Nos.15 to 19 and daughters-in-law of 19th respondent, got filed R.F.A.No.771/2008 and R.F.A.No.4188/2013. Having failed in those appeals they came on record in final decree proceedings contrary to the judgments of this Court. Not being satisfied with that, to harass the plaintiffs they raised untenable objections for drawing up of final decree. Though the Commissioner did not give favourable report in respect of schedule 'A' item Nos.4 to 14 lands, since the petitioners were tired of two decade old proceedings, reserving their right to seek separate final decree with regard to the same conceded for accepting the Commissioner's report. Even they gave up item No.7 property as that was a small bit of land. Respondent Nos.15 to 19 failed to establish their right. Their claim in the final decree proceedings is contrary to the judgments of this Court in R.F.A.No.771/2008 and R.F.A.No.4188/2013. The appeal is filed only to harass petitioners.
Though Smt.Pallavi S.Pachhapure represents respondents 4, 6 to 9 and 11 and Shri Chetan T.Limbikai represents respondents 5, 6, 8, 10 to 12, 15 to 17 in this case they did not contest the appeal. Respondents 13, 14, 18 and 19 though served remain unrepresented. On considering the submissions of both side and the material on record the question that arises for consideration is:
“Whether the impugned order suffers illegality warranting interference of this Court?”
Analysis
Since the facts are already narrated above again they do not need a detailed narration again. Suffice it to say that petitioners 1 to 3 filed O.S.No.249/2002 against defendants 1 to 10 for partition and separate possession of their share. They all belong to the branch of one Kattebasappa. The present appellants and respondent No.19 belong to the branch of Kattebasappa's brother Ishwarappa. According to the parties there was a partition between Kattebasappa and Ishwarappa in the year 1982 itself. None of the parties disputed that. Plaintiffs sought their share only in the estate of Kattebasappa.
The subject matter of the suit were shown as schedule A, B and C properties. Schedule 'A' contains the landed properties, 'B' contains the house properties and 'C' contains the movable properties. The dispute in this case relates to schedule 'A' landed properties situated within the limits of Tolamamidi village, Ballari taluk which are as follows:
Sl.No.
Sy.No.
Extent
1
119/B/1
1-42 cents
2
119/B/3
11-34 cents
3
1/A
9-80 cents
4
7/C
1.27 cents
5
7/D
6-20 cents
6
9A/1A
11 acres 85 cents
7
9 A/3 B/1
3 cents
8
117 A/1
3 acres 41 cents
9
117 C/2
12 cents
10
7 E
22 acres 27 cents
11
333 A/2
10 acres 75 cents
12
333 A/3
21 acres 92 cents
13
382 C/1 B
19 acres 50 cents
14
382 A/1 B
3 acres 85 cents
15
386 D
11 acres 66 cents
Respondent Nos.11 to 15 claimed that in the partition between Kattebasappa and Ishwarappa, some portion of item Nos.1 to 3, 7 to 9, 13 and 14 of 'A' schedule properties had fallen to the share of Ishwarappa. They claim that plaintiffs included those portions of the properties also in item Nos.1 to 3, 7 to 9, 13 and 14 without impleading them as parties in the suit and secured the decree behind their back. Their objections to the Commissioner’s report was also to the same effect.
It is pertinent to note raising the same contentions, the appellants and respondent No.19 filed R.F.A.No.771/2008 before this Court and sought permission to prefer and prosecute the said appeal. This Court considering the merits of the matter and the application dismissed the same on 29.06.2009 holding that if they have any independent right, the decree does not bind them and they can raise that objection in the execution proceedings invoking the provisions of Order XXI Rule 97 CPC. Having failed in the said appeal, one Brahmaramba the daughter-in-law of the 1st appellant was set up to file R.F.A.No.4188/2013 (Part. & Possn.) again raising the same grounds. That appeal also came to be dismissed on 28.08.2017 in view of the dismissal of R.F.A.No.771/2008.
Surprisingly pending R.F.A.No.771/2008 appellants and respondent No.9 filed IAs-2 to 6 before the trial Court to implead them with the same contention. Needless to say that the judgment dated 29.06.2009 in R.F.A.No.771/2008 not only binds the parties to the appeal but also binds the trial Court. Still the trial Court ignoring the said judgment of this Court, even after referring to the same allowed IAs-2 to 6 which is nothing but judicial indiscipline.
When it was specifically stated that respondent Nos.11 to 15 could raise such objections only in the execution proceedings under Order XXI Rule 97 CPC, it was not open to them again to seek their impleadment in final decree proceedings which are the continuation of the suit. Such conduct of respondent Nos.11 to 15 was the sheer abuse of the process of the Court. When the appellants and respondent No.19 were barred raising such plea until the case reaches execution stage, their objections either to the Commissioner’s report or to the final decree proceedings had no legs to stand.
Further to substantiate their claim that they have interest in schedule ‘A’ item Nos.1 to 3, 7 to 9, 13 and 14 the only documents produced by respondent Nos.11 to 15 were Exs.R.2 to 7, the RTCs. They pertain to Sy.Nos.7/E/1, 7/E/2, 7/E/3, Sy.No.1/A. Out of Exs.R.2 to 7 Exs.R.4 to 6 related to Sy.No.1/A i.e., item No.3 and Ex.R.7 related to Sy.No.119/B/1 i.e., item No.1 property. Again Exs.R.4 and 5 related to the period 2008-2009, in respect of Sy.No.1/A, Ex.R.6 related to the year 2009 and Ex.R.7 related to the year 2007-2008. None of those documents speak that those properties were allotted to Ishwarappa and from him appellants and respondent No.19 succeeded to the same. Such was the sketchy evidence produced by them. Under such circumstances, the trial Court was right in rejecting the objections and accepting the report, though did not consider the maintainability of the objections of respondent Nos.11 to 15 in the light of the dictum of this Court in R.F.A.No.771/2008.
Absolutely there is no merit in the appeal. There is much force in the contention of petitioners that the unsuccessful original defendants/respondents 1 to 10 have set up respondent Nos.11 to 15 to procrastinate the matter and harass them. Having regard to such conduct the appeal is liable to be dismissed with heavy costs.
Hence the following:
ORDER
i) The appeal is dismissed on payment of costs of Rs.20,000/- payable to respondents 1 to 3.
ii) Unless the appellants deposit the said cost, appellants or anybody claiming through them shall not be entitled to any audience in F.D.P.No.20/2019 or in the execution proceedings arising out of the same.
Transmit the TCRs to the Tribunal forthwith.