NINGAPPA Vs. HARISH

JUDGEMENT

(1.) The 2nd defendant in O.S. No. 64/1994 on the file of Civil Judge (Sr.Dn.), Koppal, has come up in this revision petition impugning the order dated 21.11.2011 regarding maintainability in M.A. No. 4/2011, on the file of District Court, Koppal. The brief facts leading to this revision petition are that the revision petitioner is 2nd defendant in O.S. No. 64/1994 which was filed by the children of Hanumappa Kolli seeking partition in respect of two agricultural lands bearing Sy. No. 76/K measuring 3 acres 30 guntas and Sy. No. 67/K measuring 5 acres 16 guntas situated at Danakanadoddi village in Koppal taluk and district. In the said suit the 1st defendant was Hanumappa Kolli and 2nd defendant was the petitioner herein. It is seen that the said suit is filed immediately after the 1st defendant sold land bearing Sy. No. 76/K in favour of 2nd defendant for valuable consideration of Rs. 37,000/- under a registered sale deed dated 10.8.1994. Within few days the sale deed was executed, the suit is filed for partition.

(2.) The suit in O.S. No. 64/1994 is filed on 29.08.1994 i.e., immediately after the execution of sale deed dated 10.08.1994 by the father of plaintiffs Sri Hanumappa Kolli, first defendant in the Court below seeking partition in all the three properties of the family including the property which is sold in favour of petitioner herein who is second defendant in the said suit. The suit came to be allowed in part in awarding share to plaintiffs only in respect of land bearing Sy. No. 67/K measuring to an extent of 5 acres 16 guntas and in the house property. So far as the land in Sy. No. 76/K measuring to an extent of 3 acres and 30 guntas is concerned, the suit was dismissed holding that the sale deed dated 10.08.1994 executed in favour of second respondent is for family necessity. The judgment and decree in O.S. No. 64/1994 was taken up in appeal by plaintiffs in R.A. No. 10/2000 wherein they sought for share in Sy. No. 76/K by setting aside the decree of trial Court in accepting the sale deed dated 10.08.1994 is for family necessity. The said appeal was accordingly allowed and share was granted to plaintiffs is Sy. No. 76/K also, who were appellants in the said proceeding. The judgment and decree passed in R.A. No. 10/2000 dated 17.10.2001 was not challenged by first defendant Hanumappa Kolli, it is only the second defendant Ningappa Kushtagi who is petitioner herein challenged the same by filing R.S.A. No. 899/2001 which subsequently came to be dismissed by judgment dated 26.06.2007 in which a review petition was filed in R.P. No. 428/2007 which also came to be dismissed by order dated 04.11.2007.

(3.) With this it is seen that FDP is initiated by respondents herein in FDP No. 9/2010 wherein the final decree is drawn on 20.7.2011 in dividing both the properties i.e., Sy. No. 76/K into 7 parts and Sy. No. 67/K into six parts for the reason that the share of Hanumappa Kolli is 1/7th in Sy. No. 76/K which he had sold in favour of the 2nd defendant. Therefore the 2nd defendant has that one share which has fallen to the share of Hanumappa Kolli and so far as Sy. No. 67/K not being part of the sale deed dated 10.8.1994, the share in that property will not devolve upon the purchaser, which will get divided among the children of Hanumappa Kolli. Therefore each one of them get 1/6th share instead of 1/7th share. That finding of the final decree proceeding was under challenge in M.A. No. 4/2011 which came to be dismissed by order dated 21.11.2011 on the ground that an appeal is not maintainable as against the said finding of the final decree Court which is sought to be revised in this proceeding.