GANGA RAO K Vs. V BHASKAR RAO

JUDGEMENT

(1.) THIS revision under Section 115 of the Code of Civil Procedure is directed against the order dated 30-3-1999 of the Principal Civil Judge (Junior Division), Udupi in F. D. P. No. 6 of 1998. Revision petitioners are he legal representatives of the deceased plaintiff-V. Krishna Rao in O. S. No. 91 of 1976. First respondent herein is the second defendant and applicant in F. D. P. No. 6 of 1998. Respondents 2 and 10 herein are the defendants-1 and 5 respectively. Respondents 3 to 9 are the legal representatives of the deceased defendant 4-Sarojini. Neither defendant 3 nor defendant 6 is a party to these proceedings.

(2.) FACTS relevant for the disposal of this revision may be stated thus: Deceased Krishna Rao, second defendant-Bhaskar Rao and third defeandant Narayana Rao are the sons of one R. Vishnumurthy Rao who died on 18-12-1972. Defendants 4-Sarojini, 5-Leelavathi and 6-Indira S. Tantry are the daughters. First defendant-Rathnavathi is their mother. It would appear that R. Vishnumurthy died intestate leaving behind him wife and these six children and he had possessed of immoveable property shown as 'a' schedule in the plaint in Sy. No. 185 of Shivahalli village Udupi Taluk within the Udupi municipality measuring 58 cents out which 55 cents were Nanja, 2 cents were Bagayath and 1 cent was dry land. It is also stated that he had two lorries and other moveables shown in 'b' schedule of the plaint. Undisputably there was a portion of house in 'a' schedule property and perhaps that portion of house was in occupation of the plaintiff and certain portions, it is stated, were leased out to different defendants. On 13-11-1976, plaintiff-Krishna Rao instituted suit for partition and for separate possession of his V?th share in the above said properties. The defendants resisted the suit. Second defendant and defendant 3 filed separate written statements. Third defendant appears to have contended that certain properties in possession of the second defendant are not included in the plaint schedule and they should be brought for partition and that was disputed by the second defendant, he claimed those properties mentioned by the third defendant are his self-acquisition thougt he admits that he was in management of the transport services belonging to the family. On these pleadings, certain issues, Issues 1 to 6 were framed and the suit came up for trial. In the meantime, the parties on 16-4-1980 filed a joint memo and on 17-4-1980, the Court decreed the suit, in view of the joint memo and directed the office to draw up preliminary decree. It may be noted that the suit was instituted in the Court of the Civil Judge, Udupi at the first instance. Preliminary decree was acordingly drawn.

(3.) THEREAFTER the second defendant-Bhaskar Rao filed an application on the year 1985 for drawing up final decree. During the pendency, there was change of pecuniary jurisdiction and as a result this application was transferred to the Principal Civil Judge (Jr. Dn.), Udupi and accordordibly it was renumbered as F. D. P. No. 7 of 1989. The respondents therein opposed the said application. However, subsequently, the parties agreed for appointment of a Commissioner to visit the spot and divide the property in 'a' schedule into seven equal shares by metes and bound. Accordingly, LA. No. 20 was filed on 21-6-1997, the Court allowed the application and appointed one Sri K. Bhaskar, Advocate as commissioner. The Commissioner after visiting the spot and examining the properties, on 19-7-1997 filed a memo in Court saying that the said property cannot conveniently be divided into seven equal shares as per the final decree for partition and sought for necessary direction. The court after hearing both the parties, instructed the Commissioner to carve out 1/7th share in the 'a' schedule property and allotted 8 1/4 cents of land to the legal representatives of the plaintiff-Krishna Rao. Accordingly, the Commissioner visited the property, carved out 81/4 cents of land and prepared a sketch and filed the report and the sketch in Court. It would appear that on 14-8-1997, applicant Bhaskar Rao (second defendant) filed a memo in Court stating that he has no objection for allotting that 8v4 cents of land to the plaintiff and granting them four months time to vacate and handover possession of the rest of the property in A schedule to the other respondents. As it was inconvenient to divide the rest of the extent in 'a' schedule property, the Court according to the wishes of the party, fixed 18-8-1997 as the date for selling that area in public auction. It is admitted that Mala Rao, wife of the applicant Bhaskar Rao and Power of Attorney holder participated in the auction and she was the highest bidder and the bid amount was Rs. 14,30,000/ -. Accordingly, the auction purchaser deposited 1/4th of the amount at the time of auction and the balance within 15 days thereafter. Since no other sharer objected, it appears, on 18-9-1997 the sale was confirmed. Thereafter the Court proceeded to pass a final decree accordingly on 6th day of December, 1997. Nothing is mentioned either in the preliminary decree or in the final decree as to the enquiry into the profits derived by the plaintiff from the property in excess of his share in a' schedule property.