Marirudraiah & Ors vs B.Sarojamma & Ors

3) Regular First Appeal No. 207 of 2003 was filed under Section 96 of the Civil Procedure Code before the High Court of Karnataka against the judgment and decree dated 25.10.2002 passed in O.S. No. 8252 of 1998 by the XXII 1 Additional City Civil and Sessions Judge, Bangalore granting preliminary decree in a suit for partition and separate possession. In the said appeal, applicants-Suresh Salariya and V. Mohammed Shaffiulla of Bangalore filed I.A. No. 4 of 2005 seeking permission to bring them on record as additional respondents contending that they have purchased suit item No.9 from Smt. B. Sarojamma with the consent of other sharers, appellant Nos. 3, 4, 5 and 8 therein. In the absence of any objection by the appellants, the High Court allowed the said application. It is further seen that the appellants and respondent Nos. 1 to 3 before the High Court filed a compromise petition and the same was signed by all the parties by their respective advocates. On 15.06.2006, all the parties to the compromise petition were present and admitted the execution of the same. They were identified by their advocates. According to the compromise, the parties have no objection to divide the suit schedule joint family properties under Section 6 of the Hindu Succession Act. In terms of the compromise, the appeal itself was disposed of. At that stage, counsel appearing for respondent Nos. 4 and 5 before the 2 High Court, purchasers of item No. 9 submitted that since they purchased the suit item No.9 from appellant No.1, namely, B. Sarojamma with the consent of appellant Nos. 3, 4, 5 and 8, prayed that the suit item No. 9 may be allotted to the share of those persons and they may be directed to pay the value of the share of the remaining parties in respect of suit item No.9 is concerned. It was pointed out by the purchasers that considering the total number of shares to be divided among the parties, suit item No. 9 cannot be divided by metes and bounds. However, the contesting parties submitted that the said dispute has to be relegated to the final decree proceedings.

4) Considering the submissions made, the High Court accepted the claim of the purchasers-impleaded Respondents and directed the trial Court to work out equity in favour of the purchasers and compensate the plaintiffs and other sharers who are not parties to the sale deed in the final decree proceedings. With the said observation, the High Court dismissed the appeal on 15.06.2006.

9) In the light of the above discussion, we confirm the order of the High Court with regard to impleading the pendente lite purchasers (Respondent Nos. 8 and 9 herein) as parties to the proceedings, whereas other aspects, namely, direction for payment of compensation to the plaintiff and others and working out equity are set aside. However, all the parties are permitted to put-forth their claim by way of separate application before the trial Court in the final decree proceedings and it is for the trial Court to consider the claim/objection of the parties including equity and pass appropriate orders in accordance with law.

10) To this extent, the impugned order of the High Court is modified and the appeal is allowed in part. No costs.

APRIL 02, 2009.