Saroja Krishnamurthy and Others vs Shanthamma and Others

B.S. Patil, J.—This Miscellaneous Second Appeal is filed challenging the judgment dated 03.07.2015 passed by the learned Principal District Judge, Kolar, in R.A. No. 92/2011 thereby setting aside the judgment and decree passed by the Trial Court in O.S. No. 237/2009 and remanding the matter for fresh consideration to the Trial Court with a direction to the Trial Court to take up O.S. No. 237/2009 in respect of item No. 12 only of ''A'' schedule property and to consider the same only with regard to the said property along with pending suit in O.S. No. 284/2005 and to pass a judgment afresh with regard to the claim made by the plaintiffs in O.S. No. 237/2009 filed seeking partition and separate possession of item No. 12 of ''A'' schedule property along with the consideration of the claim of the plaintiffs for specific enforcement of Agreement to Sell in respect of the very property in O.S. No. 284/2005.

It is necessary to notice here that suit O.S. No. 237/2009 for partition and separate possession has been filed by the sisters of defendant No. 1 H.S. Jagannath against defendant No. 1 and other members of the family contending inter alia that the suit schedule properties consisting of 12 properties as described in ''A'' schedule and 3 properties as described in ''B'' schedule were the joint family properties over which plaintiffs had share.

It transpired that one of the items of ''A'' schedule properties namely item No. 12, land bearing Sy. No. 72/1, situated at Devarayasamudra Village, Avani Hobli, Mulbagal Taluk measuring 12.14 acres was agreed to be sold by defendant No. 1 H.S. Jagannath in favour of Shantamma � respondent No. 1 herein by executing Agreement to Sell dated 15.04.2005.

Shanthamma had instituted O.S. No. 284/2005 seeking specific enforcement of the said agreement. The said suit is pending on the file of the Civil Judge (Sr. Dn.), Mulbagal. In the present suit O.S. No. 237/2009, defendants including H.S. Jagannath did not file any written statement. Thus, the suit remained uncontested. The Trial Court, after recording evidence of the plaintiffs, decreed the suit allotting respective shares to the plaintiffs and defendants. This judgment was rendered on 24.08.2011. This was challenged by Shanthamma - respondent No. 1 herein in appeal in R.A. No. 92/2011. The lower Appellate Court granted permission to Shanthamma to prosecute the appeal and after hearing, both parties remanded the matter for fresh consideration only with regard to item No. 12 which was the subject matter of the Agreement to Sell dated 15.04.2005 by providing an opportunity to the said Shanthamma.

This judgment of the lower Appellate Court was challenged before this Court in MSA. No. 13/2014. The said second appeal was disposed of 12.01.2015. It is necessary to refer to the reasons assigned and directions issued in paragraphs 5, 6 and 7 of the said judgment, which reads as under:

This approach is contrary to the provisions of Order XLI Rules 23 and 23A CPC. The claim of Shantamma claiming to be agreement holder could be considered in the suit for partition and separate possession and nothing comes in the way of the agreement purchaser to seek equities on the ground that the property purchased by her be allotted to the share of Jagannath, provided her suit for specific performance is decreed.

If for any reason the first appellate court were to come to the conclusion that item No. 12 is the absolute property of Jagannath, nothing comes in the way of the court to deal with it properly. The order of remand is unjustified. In this view of the matter, the substantial question of law framed in the appeal is answered in the negative.

Therefore, I proceed to pass the following order:

The appeal is allowed. It is made clear that when leave is granted to Shantamma to file appeal against the judgment and decree in the partition suit, necessarily she must be given an opportunity by the appellate court to be impleaded as co-defendant in order to substantiate her claim for specific performance.

Parties shall appear before the first appellate court on 4.3.2015 without fail and thereafter the appeal shall be disposed of within six months."

It is thus clear that this Court felt that as leave had been granted in favour of Shanthamma to prosecute the appeal before the lower Appellate Court against the judgment and decree passed in the partition suit, the said Shanthamma ought to have been given an opportunity by the Appellate Court to be impleaded as a co-defendant in order to substantiate her claim for specific performance.

After remand, the lower Appellate Court has passed the impugned judgment dated 03.07.2015 recording a finding that the Trial Court had decreed the suit for partition ex-parte; there was no written statement filed by defendant No. 1; if Shanthamma had to be given opportunity to participate in the proceedings, she has to be permitted to file her written statement and lead her evidence the fact that H.S. Jagannath, vendor of Shanthamma did not resist the suit disclosed prima facie that there was collusion between the plaintiff and defendant in securing the decree for partition and it was aimed at denying the right of Shanthamma.

Learned District Judge has further observed that this Court while disposing of the second appeal had observed that Shanthamma has to be necessarily given an opportunity by allowing her to be impleaded as a co-defendant in order to substantiate her claim for specific performance and such impleadment could only be done after the remand of the matter to the Trial Court; consequently, she has to be permitted to file written statement and the trial has to go on afresh by framing necessary issues, hence, the matter deserved to be remanded to the Trial Court. Further, the lower Appellate Court has issued direction to the Trial Court to consider the claim regarding partition of item No. 12 of ''A'' schedule property only in O.S. No. 237/2009 along with pending suit O.S. No. 284/2005 filed for specific performance by Shanthamma keeping in mind the observations made by this Court.

I have heard the learned counsel for both parties. Sri Umashankar, learned counsel for the appellants submits that the lower Appellate Court was not right and justified in either remanding the matter or in directing both the suits to be considered together. On the other hand, learned counsel for the respondents Sri Veeranna G. Tigadi supports the findings recorded by taking me through the order passed by this Court on 12.01.2015.

On perusal of the entire materials on record, I find that the lower Appellate Court was right and justified in remanding the matter in respect of item No. 12 of ''A'' schedule in O.S. No. 237/2009 to the Trial Court for fresh consideration along with suit O.S. No. 284/2005 filed for specific performance by Shanthamma. The controversy raised in the two suits cannot be put at rest without Shanthamma participating in the suit filed by the plaintiffs in O.S. No. 237/2009 and without participation of the present plaintiffs in O.S. No. 284/2005. This is so because the question whether item No. 12 of schedule A is a self acquired property of H.S. Jagannath wherein he had absolute right to enter into Agreement to Sell in favour of Shanthamma arises in both the suits. Though in the partition suit, issue regarding execution of the Agreement to Sell, its proof and enforcement by passing a decree does not arise for consideration, the nature of the said property as to whether it is a joint family property or the absolute property of H.S. Jagannath certainly arises for consideration. Even if H.S. Jagannath has not filed any written statement, Shanthamma is entitled to defend herself by filing written statement and taking up a plea that her vendor H.S. Jagannath was the absolute owner of the property. Hence, I do not find any illegality in the order passed by the lower Appellate Court in remanding the matter for fresh consideration to the Trial Court with a direction that O.S. No. 237/2009 has to be tried along with O.S. No. 284/2005.

Both the suits have to be tried by the same Court and both parties shall have an opportunity to have their say in both the suits in accordance with their stand in the respective suits. Hence, making it clear that both the suits shall be separately tried by the same Court simultaneously, this appeal is disposed of declining to interfere with the matter.