Parvathamma vs Vadde Sanna Hulugappa and Others

N.K. Patil, J.—This Civil Revision Petition is directed against the order dated 26.7.2002 passed on I.A. No. X in FDP No. 19 of 1999 on the file of the Principal Civil Judge (Jr. Dn.), Bellary.

Heard the learned Counsel for the Petitioner as also the Respondents at considerable length of time.

The facts in brief are: the Petitioner is the purchaser of the property in question from one Thippamma and her sons, towards the southern side of the suit property measuring 6 ft x 30 ft. which is an open space. After the purchase of the property in question, the Petitioner has constructed a house there, spending more than Rs. 3 lakhs and is staying there since 10 years. As the property in question was a joint family property, the Respondents filed a suit for partition which came to be dismissed on the ground that the Plaintiff therein had not impleaded the purchaser in the said suit. Challenging the same, the Respondents filed Regular Appeal before the District Court, which also came to be dismissed. Thereafter, the Respondents filed Regular Second Appeal No. 904 of 1991 before this Court. This Court by its order dated 18.2.1998 disposed of the said Appeal with an observation that these Respondents were Plaintiffs in the suit and they are entitled to 2/3rd share and separate possession in the suit schedule property. As there was an observation by the Courts below that they have got 2/3rd share in the property, a preliminary decree was passed. Thereafter, F.D.P. proceedings were filed and in the said proceedings the Petitioner herein filed an application to implead herself as party to the said proceedings. The said application was allowed and the Petitioner was permitted to come on record. The said Order has become final.

Against the said order, Respondents-4, 6 and 7 filed a Revision before this Court in Civil Revision Petition No. 1384 of 2002. The said revision was dismissed by this Court vide order dated 1.4.2002. This Court, while disposing of the said revision observed as follows:

However, it is made clear merely because the 6th Respondent is permitted to come on record in the final proceedings, the Court below should not proceed on the basis while settling the rights of the parties for final decree, when the sixth Respondent has acquired any right in respect of the property in question. The Court is required to consider the respective claims of the parties on merits.

Thereafter, Petitioner filed I.A. No. X in the Final Decree Proceedings seeking permission of the Court to permit her to adduce evidence. The said I.A. has been rejected by the Court below by its order dated 26th July, 2002. Assailing the legality and validity of the order passed by the Court below, this revision petition is presented before this Court.

Learned Counsel Mr. Raghavendra Rao, appearing for the Petitioner vehemently contended that the order passed by this Court in Civil Revision Petition No. 1384 of 2002 should be read as a whole and not in isolation. He contended that Petitioner has been permitted to come on record in the final decree proceedings and the same has become final. Further, he contended that this Court has clearly held that 6th Respondent is permitted to come on record in the final decree proceedings and the Court is required to consider the respective claim of the parties on merits. It is his contention that the order passed by this Court in unequivocal terms categorically stating that the 6th Respondent is permitted to come on record in the final decree proceedings, means that, her say may also be considered during the enquiry in the final decree proceedings. However, the Court below holding that just permitting the Petitioner to come on record does not permit her to file an application for adducing evidence claiming her rights, has accordingly rejected the prayer of the Petitioner without taking into consideration the specific directions given by this Court.

Per contra, the learned Counsel appearing for the Respondents, inter alia, contended that the trial Court has passed the impugned order in accordance with law following the directions given by this Court. It is their contention that the Petitioner has not made out any case to interfere with the impugned order. Therefore, they justified the order passed by the trial Court.

I have perused the records and gone through the impugned order passed by the trial Court as also this Court in Civil Revision Petition No. 1384 of 2002 extracted above.

As rightly pointed out by the learned Counsel for the Petitioner, this Court has clearly held that just permitting the Petitioner to come on record in final decree proceedings does not construe that the 6th Respondent has acquired any right in respect of the property in question. But it is pertinent to note that this Court has given a specific direction to the Court below that it should consider the respective claims of the parties on merits. If this is the tenor of the order passed by this Court, it means, the 6th Respondent who is one of the parties to the final decree proceedings should be permitted to substantiate her claim at the time of conducting enquiry. In the instant case, the trial Court has misunderstood the directions and the observations made by this Court. Therefore, in my considered view, the Court below is not justified in rejecting the request of the Petitioner to produce documentary evidence in support of her case in the final decree proceedings. It is revealed from the track of records that the order passed by the Court below permitting the Petitioner to come on record in the final decree proceedings has been confirmed by this Court. The same has become final and remained unchallenged. If this is the position, it is duty cast on the Court below to consider the respective claims of the parties on merits. Therefore, having regard to the facts and circumstances of the case, the Court below has failed in taking into consideration the order passed by this Court.

Further, it is significant to note that, the Petitioner after purchasing the site measuring 6 ft x 30 ft., has put up permanent construction spending huge sums of money and is residing there since ten years. If the vendors of the Petitioner get any right over the suit schedule property, the Petitioner is entitled for the said share. Taking into consideration all these aspects of the matter, this Court has rightly directed to consider the respective claims of the parties on merits.

Having regard to the factual and legal position of the case, the Civil Revision Petition filed by the Petitioner has to be allowed. The order passed by the Court below is set aside and the matter stands remitted to the trial Court for fresh disposal in accordance with law. The trial Court is further directed to pass appropriate orders keeping in view the order passed by this Court in Civil Revision Petition No. 11384 of 2002, dated 1.4.2002 as expeditiously as possible. For the foregoing reasons, the revision petition succeeds and the same is allowed.