Judgment:
1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE24H DAY OF FEBRUARY, 2020 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI C.R.P.No.100080 OF2018BETWEEN1 BASAPPA S/O RUDRAPPA PANASHETTI, AGED55YEARS OCC: AGRICULTURE R/O: BASAVA NAGAR MAHALINGAPUR, TALUK MUDHOL, BAGALKOT DISTRICT :
583. 364.
2. SMT. MAHALINGAVVA KOM RUDRAPPA PANASHETTI AGED67YEARS, OCC: HOUSEHOLD, R/O BASAVA NAGAR MAHALINGAPUR, TQ: MUDHOL DIST: BAGALKOT :
585. 364.
3. PRAVEEN S/O MAHALINGAPPA KOLIGUDDA AGED32YEAR, OCC: AGRICULTURE, R/O MARUTI GALLI, MAHALINGAPUR, TQ: MUCHOL DIST: BAGALKOT585364 REP. BY HIS GENERAL POWER OF ATTORNEY HOLDER MAHALINGAPPA S/O ITAPPA KOLIGUDDA, AGED62YEARS OCC: AGRICULTURE, 2 R/O MARUTI GALLI MAHALINGAPUR TQ; MUDHOL DIST : BAGALKOT – 585 364. …PETITIONERS (BY SRI. ANANT HEGDE, ADVOCATE) AND:
1. SMT. KAMALA KOM SHIVAPUTRA LIGADE AGED72YEARS, OCC: HOUSEHOLD R/O VANI TRADERS NEHRU MARKET, DHARWAD DIST: DHARWAD – 580 001.
2. SMT. MAMATA KOM GURUPAD VANI AGED49YEARS OCC: HOUSEHOLD R/O VANI TRADERS NEHRU MARKET, DHARWAD, DIST: DHARWAD – 580 001.
3. NEETA KOM SIDDAPPA KORE AGED50YEARS OCC: HOUSEHOLD R/O ANKALI TQ: CHIKODI DIST: BELAGAVI – 591 201.
4. SANGEETA KOM DHURADUNDISHWAR BANNUR, AGED43YEARS OCC: HOUSEHOLD R/O SADASHIVA NAGAR BELAGAVI, DIST: BELAGAVI – 577 450.
5. GIRISH S/O SHIVAPUTRA LIGADE AGED47YEARS OCC: AGRICULTURE3R/O SATAVAYI ROAD NIPPANI, TQ: CHIKODI DIST: BELAGAVI – 591 237.
6. ISHWAR S/O MALINGAPPA LIGADE AGED85YEARS OCC: BUSINESS R/O NIPPANI, TQ: CHIKODI DIST: BELAGAVI – 591 237.
7. BABURAO S/O MALINGAPPA LIGADE AGED72YEARS OCC: BUSINESS R/O NIPPANI, TQ: CHIKODI DIST: BELAGAVI – 591 237.
8. SUVARNA D/O MALINGAPPA LIGADE @ SUVARNA KOM BASAVARAJ SASALATTI AGED74YEARS OCC: HOUSEHOLD R/O NEAR VIJAYA COLONY VIJAYAPURA TQ: AND DIST: VIJAYAPURA – 586 101.
9. MANGALA D/O MALINGAPPA LIGADE AGED59YEARS OCC: HOUSEHOLD R/O NIPPANI TQ: CHIKODI DIST: BELAGAVI – 591 237.
10. MAYAVVA KOM SATAPPA GOUDANNAVAR AGED67YEARS OCC: HOUSEHOLD R/O NANDAGAV TQ: MUDHOL DIST: BAGALKOT – 585 364.
11. TANGEVVA KOM BASAPPA GOUDANNAVAR AGED42YEARS OCC: HOUSEHOLD4R/O NANDAGAV TQ: MUDHOL DIST: BAGALKOT – 585 364.
12. KUMAR LAKKAPPA S/O BASAPPA GOUDANNAVAR AGED15YEARS OCC: STUDENT R/O NANDAGAV TQ: MUDHOL, DIST: BAGALKOT – 585 364.
13. KAREPPA S/O BASAPPA GOUDANNAVAR AGED13YEARS OCC: STUDENT, R/O NANDAGAV TQ: MUDHOL DIST: BAGALKOT – 585 364. RESPONDENT No.12 AND13WHO ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER (RESPONDENT No.11) TANGEVVA KOM BASAPPA GOUNDANNAVAR AGED42YEARS OCC: HOUSEHOLD R/O NANDAGAV, TQ: MUDHOL DIST: BAGALKOT – 585 364.
14. MAREPPA S/O SATAPPA GOUDANNAVAR AGED ABOUT45YEARS OCC: AGRICULTURE R/O NANDAGAV, TQ: MUDHOL DIST: BAGALKOT – 585 364.
15. BHEERAPPA S/O SATAPPA GOUNDANNAVAR AGED35YEARS OCC: AGRICULTURE R/O NANDAGAV, TQ: MUDHOL DIST: BAGALKOT – 585 364.
16. RUKMAVVAA KNOWM MALAPPA LOKARI AHED37YEARS5OCC: HOUSEGOLD R/O NANDAGAV TQ: DIST: BAGALKOT – 585 364.
17. LAKKAVA KOM VITTAL DUGGANI AGED38YEARS OCC: HOUSEHOLD R/O NANDAGAV, TQ: MUDHOL DIST: BAGALKOT – 585 364.
18. GOURAVVA KOM YALLAPPA KATAGI AGED41YEARS OCC: HOUSEHOLD R/O RABKAVI, TQ: JAMAKHANDI DIST: BAGALKOT – 587 311. …RESPONDENTS (BY SRI: F.R. PATIIL FOR R-1 TO R-5 SRI: SHIVARAJ S BALLOLI FOR R-7 , R-6, R-8 AND R-9 TO R-15 ARE SERVED) ------ THIS CRP FILED UNDER SEC.115 OF CPC., AGAINST THE ORDER
DATED1607.2018 PASSED IN FDP NO.06/2011 ON THE FILE OF THE1T ADDITIONAL CIVIL JUDGE AND J.M.F.C. CHIKODI, DISMISSING THE I.A.NO7FILED BYTHE RESPONDENTS1618 THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
6. ORDER
Respondents No.16 to 18 have filed this revision petition challenging the order dated 16.7.2018 on I.A.No.7 passed in FDP No.6/2011 by the First Additional Civil Judge and JMFC, Chikodi.
2. Parties are referred to as per their rankings before the trial Court.
3. Brief facts of the case are as follows : That the husband of the petitioner No.1(a) filed a suit in O.S.No.84/1967 for partition and separate possession on the file of the Additional Munsiff Court, Chikodi. The suit came to be decreed vide judgment and decree dated 27.6.1969 and awarded 1/5th share in the suit schedule properties. The defendants in O.S.No.84/1967 preferred R.A.No.258/1969 before the learned Civil Judge, Belagavi. The appeal came to be dismissed on 15.6.1971. Thereafter, in the year 1988 the original plaintiff filed an Execution Petition in E.P.No.46/1995 on the file of the Munsiff and JMFC Court, Nipani to 7 execute the preliminary decree for partition. The said execution petition was treated as a final decree petition in respect of the house property. The trial Court allowed the final decree petition and final decree was drawn on 6.8.1996 in respect of house property. 3.1. That, on 4.7.2011, petitioners filed FDP No.6/2011 before the learned Civil Judge, Chikodi for drawing up final decree in terms of the preliminary decree passed in O.S.No.84/1967 dated 27.6.1969 in respect of the agricultural lands. During the pendency of the said final decree proceedings, the defendants filed RSA No.5861/2012 challenging the judgment and preliminary decree passed in the above said suit and also the judgment of the First Appellate Court passed in R.A.No.258/1969 by the learned Senior Civil Judge, Belagavi. This Court dismissed the second appeal on the ground of delay. 3.2. In the FDP proceedings (6/2011), respondents No.16 to 18 filed an application for impleading them as 8 respondents. The trial court allowed the application and they were arrayed as Respondents No.16 to 18. 3.3. Respondents No.16 to 18 filed I.A.7 under Section 151 of C.P on the ground that the final decree petition for drawing up of final decree is not maintainable and further contended that the law prohibits from drawing up of more than one final decree and hence contended that the final decree petition filed by petitioners is not maintainable and sought for dismissal of the final decree proceeding. 3.4. The petitioners have filed objections to the said application contending that the application filed by respondents No.16 to 18 is not maintainable either in law or on facts and circumstances of the case. Further they have contended that the application filed by respondents No.16 to 18 before the learned Munsiff Court is only with an intention to delay the proceedings. 9
3.5. The trial Court after considering the contents of the application and objections filed by the parties dismissed the application-I.A.No.7 filed by respondents No.16 to 18 vide order dated 16.7.2018.
4. Aggrieved by the order dated 16.7.2018 passed in FDP No.6/2011 by the learned Civil Judge and JMFC, Chikodi, respondents No.16 to 18 have filed this revision petition.
5. Heard the learned counsel appearing for respondents No.16 to 18 and also the learned counsel for the petitioners.
6. Learned counsel for respondents No.16 to 18 (revision petitioners herein) submitted that the second FDP is not maintainable as the petitioners have (respondents 1 to 5 herein) have not reserved their right to file a further petition for drawing up of a final decree and on the said ground the petition is not maintainable. He further contended that the petition is hit by Order II Rule 2 of CPC10and on this ground also the second petition is not maintainable. Hence, he prayed to allow the revision petition by setting aside the impugned order passed by the trial Court.
7. Per contra, the learned counsel for the petitioners (respondents 1 to 5 herein) submitted that Order II Rule 2 of CPC is not applicable for the present case on the ground that the vendor of respondents No.16 to 18 was a party to the said proceedings and they were well aware of the filing of the earlier proceedings which was converted into FDP. Respondents No.16 to 18 purchased the property during the pendency of the suit. They stepped into the shoes of their vendor. Respondents 16 to 18 have no right to raise an objection. He further contended that the application filed by respondents 16 to 18 is only with an intention to delay the proceedings. As the suit is of the year 1967, the petitioners are not getting the fruits of the decree. Hence, he sought for dismissal of the revision petition.
8. Perused the records and the impugned order. 11
9. The points that arise for consideration are : i) Whether Order II Rule 2 of the Code of Civil Procedure, 1908 is applicable to the Final Decree Petition?. ii) Whether trial Court can pass more than one final decree ?. Re. Point No.1 :
10. That, Order II Rule 2 of CPC reads as under :
2. Suit to include the whole claim:- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim:- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. 12 (3) Omission to sue for one of several reliefs:- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. A plain reading of the said provision clearly shows that the same is applicable only to a ‘suit’.
11. That in a suit for partition, i.e. the passing of a preliminary decree does not have the effects of disposing of the suit. The suit continues to be pending until the partition i.e. division by metes and bounds takes place by passing of final decree. That, filing an application for drawing up of final decree is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking fresh relief (falling under Article 137 of the Limitation Act). That, filing an application for drawing up a final decree is only a reminder to the Court to do its duty to appoint a Commissioner and get a report and 13 drawing a final decree in a pending suit so that the suit is taken to its logical conclusion. Further, there is no rule which provides for filing an application by the party for passing a final decree.
12. In this regard, I would like to place reliance on the judgment of THOMAS vs. BHAVANI AMMA reported in 1969 KLT729 Krishna Iyer J observed thus : “6……..It is correct law that in a suit for partition, after the passing of a preliminary decree it is the duty of the court to pass a final decree and what is called an application for final decree is but a reminder to the court of its duty. if so, it is the court’s duty to give notice to the parties”.
19. No Rule provides for the filing of an application by the party for passing a final decree. The preliminary decree will not dispose of the suit. The suit continues. The position being so, it is more appropriate for the court to adjourn the case sine die. It is difficult for me to say that there is an obligation on the part of 14 the court to “pass the final decree after necessary enquiries”. The Hon’ble Supreme Court considered the judgment of THOMAS supra, in VENU vs. PONNUSAMY REDDIAR (DEAD) THROUGH LEGAL REPRESENTATIVES AND ANOTHER reported in (2018) 15 SCC254(in Civil Appeal No.4187/2008 disposed of on 27.4.2017).
13. Further, I would like to place reliance on the judgment of the Hon’ble Supreme Court In SHUB KARAN BUBNA ALIAS SHUB KARAN PRASAD BUBNA vs. SITA SARAN BUBNA AND OTHERS reported in (2009)9 Supreme Court cases 689 in SLP (C) No.17932 of 2009 decided on August 21, 2009 wherein the Hon’ble Supreme Court in paragraph 20 has held as follows : “20. On the other hand, in a partition suit the preliminary decrees only decide a part of the suit and therefore, an application for passing a final decree is only an application in a pending suit, seeking further progress. In 15 partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court. In fact, several applications for final decree are permissible in a partition suit. A decree in a partition suit enures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree.
14. Thus, what emerges from the said decisions is that; firstly, filing up of a final decree is not contemplated as per the Code of Civil Procedure; secondly, such a petition is in a nature of reminder to the Court passing a preliminary decree to finally dispose of the suit for passing a final decree. Hence, as filing of final decree petition is not at all contemplated under the Civil Procedure Code, there are no rules/restrictions regarding the form in which the said petition has to be filed. 16
15. A preliminary decree does not completely dispose off the suit. The suit continues till the final decree is passed. Suit is pending till the passing of the final decree. There is no necessity of filing an application to apply for final decree proceedings by litigants. There is an obligation on the part of the Court for drawing up of a final decree. In the present case, there was no necessity for the petitioners to file an application for drawing up of a final decree but the petitioners have filed a petition for drawing up of a final decree in respect of the agricultural lands. Mere filing an application for drawing up of a final decree is not a plaint. It is only a reminder to the Court to draw up final decree. There is no bar in filing more than one application. A party by filing an application for drawing up of a final decree is not seeking any fresh relief. Thus, I am of the opinion that an application for drawing up of a final decree in a partition suit is not a plaint and the provisions of Order II Rule 2 of CPC is not applicable to the final decree petition. 17
16. Further, I would like to place reliance of the judgment of the Hon’ble Division Bench of this Court in the case of SMT. RUKMINI W/O.LATE ETHIRAJ vs. V UDAY KUMAR reported in ILR2008KAR13wherein one of the question that arose before the Hon’ble Division Bench of this Court was, “Whether a petition for final decree proceedings shall contain all the requirements as specified under Order VII Rule 1 of CPC?.
17. The said question was answered in negative by the Hon’ble Division Bench of this Court by holding inter alia that “a petition/application to draw final decree is not a plaint and need not contain the material facts as specified under Order VII Rule 1 of CPC. Further, Order XX Rule 18 of CPC do not specify as to what are particulars to be mentioned in a petition/application accompanied by the preliminary decree passed in the suit is sufficient to draw a final decree
18. Thus, in view of the principles laid down in the above said decisions, it is clear that : firstly, the 18 petition/application filed for drawing up of a final decree is not a plaint, it is only a reminder to the Court to draw final decree and secondly, the provisions of Order II Rule 2 of CPC is applicable only to a suit and not to a final decree petition.
19. The contention of the learned counsel for respondents No.16 to 18 that the second petition for drawing up of a final decree is hit by Order II Rule 2 of CPC, cannot be accepted for the reasons stated above. Hence point No.1 is answered in negative holding that Order II Rule 2 of CPC is not applicable to a final decree petition. Re :Point No.2 :
20. The second point for consideration in this appeal as to, ‘Whether the trial Court can pass more than one final decree?.’ The said issue has been dealt with by the Hon’ble Apex Court in the case of RACHAKONDA VENKAT RAO vs. 19 R.SATYA BAI reported in (2003) 7 SCC452 wherein the Hon’ble Supreme Court has held that the Court can pass more than one final decree. Further, in the case of HASHAM ABBAS SAYYAD vs. USMAN ABBAS SAYYAD reported in (2007) 2 SCC355the Hon’ble Supreme Court has held in paragraph 7 as, “Preliminary decree declares the rights and liabilities of the parties. However, in a given case a decree may be both preliminary and final”. Further in paragraph 8 of the said judgment, it is held as, “There can be more than one final decree. A decree may be partly preliminary and partly final” .
21. Hence, in view of the law laid down by the Hon’ble Apex Court that there may be more than one final decree in a suit for partition and in view of the aforesaid fact, point No.2 is answered in affirmative holding that in a suit for partition and separate possession, Court can pass more than one final decree. 20
22. In the present case, the trial Court has passed a preliminary decree in respect of the house and agricultural land. The petitioners have earlier filed an execution petition which was treated as a FDP in respect of the house properties and the trial Court was pleased to pass a final decree in respect of the house property but the agricultural properties were not the subject matter of earlier final decree proceedings. The petitioners have now filed a final decree petition for drawing a final decree in respect of the agricultural lands. As held by the Hon’ble Apex Court unless and until final decree is passed and the allottees of the shares are put in possession of the respective properties, the partition is not complete. As observed above, there is no bar for drawing up of more than one final decree.
23. Hence, in view of the aforesaid discussion, I do not find any grounds to interfere with the order passed by the trial Court. The trial Court has rightly rejected the application filed by respondents No.16 to 18. 21 Accordingly, the Civil Revision Petition is dismissed. In view of the dismissal of the petition, I.A22018 filed by respondents 1 to 5 herein does not survive for consideration and are accordingly, dismissed. Sd/- JUDGE Naa/rs