SANGLI BANK LTD Vs. SUDHA SHANKARRAO KALKUNDRI

JUDGEMENT

(1.) THIS second appeal is by the 8th respondent/bank being aggrieved by the order passed by the District Judge in 28/1998 confirming the judgment and decree passed by the trial Court in Final decree Proceedings in 25/1987 by order dated 2-9-1998.

(2.) A suit in OS 200/1979 came to be filed before the II Addl. Civil Judge, Belgaum for partition and separate possession of half share in the building, out-house and backyard. As there was a dispute among the family members, the plaintiff-Pandurang/6th respondent herein had filed a suit wherein according to him, the appellant-bank was the occupant as a tenant and the rental amount was being distributed between himself and the 1st defendant. In the suit filed by the plaintiff-Panduranga Rao, it appears there is a serious contest by the 3rd defendant and the legal representatives of the 8th defendant. According to the defendants, they had relinquished the right in favour of the 1st defendant-Krishna Rao who is the brother of the plaintiff. The plaintiff is the adopted son of Venkat Rao. According to defendants 2 to 8, they have relinquished their share in favour of the 1st defendant. However, the 1st defendant has filed his written statement; defendants 2, 3 and 8 have also filed written statements independently. Similarly, the 6th defendant has also filed written statement before the trial Court. According to the 3rd defendant-Sudha who is the contesting respondent herein, she is a widow and the plaintiff and 1st defendant had allowed her to stay in the out house of the suit property without receiving any rent. The plaintiff and 1st defendant were also living together with 3rd defendant as such, the 3rd defendant on leave and license basis remained in the suit house. The contention of the plaintiff is that he is entitled for half share in the suit property. According to the 1 st defendant, defendants 2 to 8 have no right and title or interest in the suit property. But that contention has not been accepted. However, the trial Court was held that plaintiff has got half share in the property and that the 1st defendant has become the owner in respect of other half share of the suit property. Regarding relinquishment of right by defendants 2 to 8, the same has been held in the negative. Further, the trial court has also held that defendants 2 to 8 each are entitled to 1/16th share. After the decree was passed, it appears, final decree proceedings were initiated. During pendency of the matter after the preliminary decree is passed, the plaintiff, defendants 1, 2, 4 to 6 have sold their rights i. e. , in all 13/16th share to the appellant-bank herein. The final decree proceedings was initiated by the 3rd defendant and the 8th defendant and after the death of 8th defendant, her legal representatives were brought on record. As things stood, after the preliminary decree is passed declaring the right of defendants 1 to 8 as 1/16th share, about 13/16th share is purchased by the bank which was already in occupation of the petition premises. Thus, while declaring that the plaintiff has got half share, it is also declared that defendants 1 to 8 have got 1 /16th share. The plaintiff and other defendants other than the contesting respondents, have sold their right in favour of the bank and to the 9th respondent. In the final decree proceedings, since the bank was in occupation of the property and is also said to have purchased the property of some of the co-sharers, the bank was also impleaded. On such impleadment, in the usual course, the appellant bank is said to have filed formal objection to IA 4 filed by the applicant under S. 4 of the Partition Act, 1893. In the objections, it is contended that the application filed in the final decree proceeding is not maintainable. While admitting that the preliminary decree was passed, on 30-8-1983 declaring the share of the plaintiff and that of the co-owners, it is stated by the bank that defendants 1, 2, 4 to have sold their undivided share to the bank after receiving the consideration amount and it is to the knowledge of the applicants. According to the appellant bank, its vendors had right, title and interest to sell their respective shares and their shares had already been determined by the Court in the original suit and the suit property is facing towards the southern side and is being used for commercial purpose. While asserting the fact that the appellant bank has every right to purchase the undivided share of the other co-owners, it has denied that the suit property is not impracticable to divide among the co-owners. It is stated in para 9 of the objection to LA filed under S. 4 that the discretionary powers be exercised in favour of the bank and the property be partitioned by metes and bounds by appointing a Commissioner and accordingly prayed for dismissal of the application. The final decree proceedings has been allowed.

(3.) IN the final decree proceedings initiated the prayer of the petitioners is to award 1/16th share to each of the petitioners. However, it appears during pendency of the final Decree Proceedings, an application under S. 4 was filed. In the Final Decree proceedings, the trial Court also considered the application of the petitioners and has given them the right of preemption. The same has been challenged in appeal before the District Judge in RA 28/1998. It is seen, three points were raised by the Civil Judge (Sr. Dvn.) in the Final Decree Proceedings and one of the points is in respect of the application filed under S. 4 in the Final decree Proceedings by the 3rd and 8th defendants wherein the said application was allowed and a final order came to be passed stating that the applicants shall file an execution petition after the Final Decree proceedings and also directed the executing court to appoint a technical person preferably, a Civil Engineer to fix the price of the portion of the premises purchased by respondents 8 and 9 on 15-5-1989 and submit a report to the executing Court and, the executing Court after accepting the same shall direct respondents 8 and 9 transferees to execute the sale deed in favour of the petitioners after the receipt of the market price to be determined by the Court commissioner. The 8th respondent-Sangli Bank being aggrieved by the said order, preferred first appeal before the District Judge, belgaum. The District Judge, having noted that the appellants being respondents 8 and 9 before the lower Court have not raised their finger while the application IA 4 was disposed of and have raised an issue only before this Court, has proceeded to pass an order that the parties went to trial without an issue being raised on such plea and that such a plea has been abandoned and in the absence of any prejudice caused no grievance could be entertained at the stage of second appeal and referring to the decision j in Mohammadsadiq v. Mahboobsab, (1987)1 KLJ 155, it has confirmed the order passed by the trial Court in the Final Decree proceedings. Hence, this appeal by the 8th defendant who is also 8th respondent before the Court beiow.