SHIVARAMAIAH Vs. MALLIKARJUNIAH

JUDGEMENT

(1.) This application is by the original first plaintiff made under Sec.151 of the Code of Civil Procedure praying for a direction that he be put in possession of 1/2th share in the suit schedule properties after partition by metes and bounds.

(2.) The undisputed facts of the case are that the applicant in IA. No.1 Mallikarjunaiah and his sister Sarojamma instituted original suit No.7 of 1965 for partition and possession of .the suit schedule properties. The Court of first instance made a decree declaring that the first plaintiff is entitled to 2/9th share and the second plaintiff is entitled to 1/9th share in the suit schedule properties. The said decree was challenged by Shivaramiah, defendant-2 in RFANo.52 of 1970 in this Court. This Court partly allowed the appeal and modified the decree made by the Court of first instance. This Court declared that the two plaintiffs together are entitled to 1/2th share ; that defendant-1 is entitled to 1/2th share ; and that defendant-2 is entitled to half share in the suit schedule properties. The suit schedule consists of the properties paying land revenue as also other properties. As regards properties assessed to payment of land revenue to the Government, the decree was sent to the Deputy Commissioner for effecting partition in accordance with the decree made by the Court as required by Order 20, Rule 18(1) read with Section 54 of the Code of Civil Procedure. Before the Deputy Commissioner could effect the partition in accordance with the decree of the Civil Court, the second plaintiff died leaving behind her husband Nanjamari and a minor son Lokesh.

(3.) It was explained to us by the learned Counsel for the applicant in IANo.1 that when the Deputy Commissioner was apprised of the death of the second plaintiff he felt that it will not be possible for him to effect partition by metes and bounds in accordance with ithe decree made by the Civil Court in the suit. The learned Counsel also submitted that the Deputy Commissioner, therefore, has written a letter to the Registrar of this Court seeking a clarification on the question as to who should be considered as the legal heirs of Smt. Sarojamma, the deceased original second plaintiff. It is in this background that the first plaintiff filed IANo.1 in RFANo.52 of 1970 for a direction that he being the surviving plaintiff should be put in possession of the 1/2th share in the suit properties which had been allotted under the decree of the Court to him and the deceased second plaintiff together. In support of the application, an affidavit has been filed by Nanjamari, the husband of the deceased second plaintiff, in which he appears to have stated that having regard to the fact that he resides at a distant place he has no objection for delivery of possession of the entire 1/2th share to the first plaintiff. But, during the course of the argument, learned Counsel for the first plaintiff had to concede that this application is misconceived and is not maintainable in this Court and that the proper course to be adopted by the parties is to file an appropriate application in the Court of first instance for bringing the legal representatives of the deceased second plaintiff on record and seeking a further preliminary decree in favour of the legal representatives of the original second plaintiff who have become entitled to succeed to her share in the suit schedule properties. As we have heard the learned Counsel for both the parties at length and as we find that there is no direct authority on the question involved, we consider it appropriate to deal with the question of appropriate steps that can be taken and the forum which can be approached for that purpose.