KARABASAPPA Vs. BASAVVA AND ORS.

JUDGEMENT

(1.) Appellant was defendant in F.D.P. No. 7/1998. He has assailed judgment and decree of II Additional District Judge at Haveri (Sitting at Ranebennur) in R.A. No. 28/2010 dated 30.10.2014, by which the order and decree passed in F.D.P. No. 7/1998 dated 13.11.2009 by Civil Judge (Sr. Dn.) and Itinerate Court at Hirekerur has been confirmed.

(2.) The relevant facts of case are that respondent No. 1 herein Basavva, had filed O.S. No. 74/1989 against defendant appellant herein seeking partition and separate possession of her half share in suit properties and for an enquiry into mesne profits. Said suit was decreed the by trial Court on 31.07.1991 granting half share to plaintiff in suit 'A' and 'B' schedule properties and to get 'B' schedule properties divided through a Court Commissioner. Plaintiffs' claim in respect of 'C' and 'D' schedule properties was rejected. That preliminary decree attained finality. Thereafter on account of family necessities, plaintiff sold her half share in 'A' schedule property in favour of plaintiff No. 2 on 28.12.1991 for a valuable consideration of Rs. 48,000/ - under a registered sale deed, and therefore, plaintiff No. 2 became entitled to the said half share. It appears that said decree was an ex -parte decree and defendant had filed Miscellaneous Petition No. 1/1992 under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the C.P.C.' for brevity) to set aside the judgment and decree dated 31.07.1991 passed in O.S. No. 74/1989. But the said Miscellaneous petition was dismissed on 19.12.1994. Defendant approached this Court in M.F.A. No. 68/1995 challenging the order dated 19.12.1994. This Court did not entertain the appeal on the ground that it had no jurisdiction to adjudicate on the same and directed the District Court at Dharwad to dispose of M.A. No. 15/1995, which was filed, on merits, in which defendant was unsuccessful. Consequently, the judgment and decree passed in O.S. No. 74/1989 dated 31.07.1991 attained finality.

(3.) In the interregnum plaintiffs had filed F.D.P. No. 4/1994. On account of the stay granted in Miscellaneous Petition, proceeding was closed. Plaintiff No. 1 died on 14.12.1995. Her legal representatives were brought on record in Miscellaneous Petition on 20.02.1996.