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2008 (2) KLO 1422
IN THE HIGH COURT OF KARNATAKA
K. Ramanna, J.
R.S.A. No. 288 of 2002
Ibrahim - Appellant
Vs.
Ismail and Another - Respondents
Decided on 7-12-2007
CODE OF CIVIL PROCEDURE, 1908 - Order 7, Rule 7: [K. Ramanna, J] Second appeal - Powers of the Court to mould the relief - Suit for the relief of declaration and injunction - Whether the relief of partition can be granted in such a suit- Held, Even if the plaintiff sought for relief of declaration and injunction, under Order VII Rule 7 of CPC the Court can mould the prayer and grant such other relief though not specifically sought for by the plaintiff, if there is sufficient evidence available on record in that regard and that the Court can go into the substance of the claim in determining the nature of the relief sought for by the plaintiff and can grant appropriate alternative relief if there is sufficient evidence in that regard and if the same is based on the same set of facts and same cause of action, without prejudice to the other side. Further, Though the appellant may not be entitled to the relief of declaration he is definitely entitled to the relief of partition even on the date of presentation of the plaint by the appellant/plaintiff.
Key Points: - The court held that under Order VII Rule 7 CPC the court can mould the prayer and grant other relief, including partition, based on the same facts and evidence, even if not specifically sought (!) (!) (!) (!) . - Even if the plaintiff is not entitled to a declaration, he can be entitled to partition on the date of presentation of the plaint, and the suit can be decreed for partition with a preliminary decree and partition through a court commissioner for the house (!) (!) . - The appellant was entitled to partition and separate possession of 1/3 share in all the properties; the High Court allowed the appeal and decreed partition and separate possession, including mesne profits enquiry and deficit court fee (!) . - The decision discussed the related doctrines from Rangappa v. Jayamma and Indira Bai v. Prof. Shyamasundar about moulding reliefs under Order VII Rule 7 and considering subsequent events for determining shares (!) (!) .
K. Ramanna, J.
1. It is the plaintiff’s appeal for setting aside the judgment and decree dated 2.2.2002 passed in R.A. No. 16/99 by the Civil Judge(Br.Dn.) Yadgir, reversing the judgment and decree passed in O.S. No. 393/95 dated 13.1.99 passed by the Civil Judge(Jr.Dn.) Shahapur and further to restore the judgment and decree of the trial court and set aside the finding of the trial court on Issue No. 4 held against the appellant/plaintiff and consequently to decree the appellant’s suit in its entirety.
2. The case of the appellant/plaintiff is that himself and Defendants No. 1 and 2 are the brothers. Respondent No. I/Defendant No. 1 is the elder brother and defendant No. 2 is the younger brother. They are the sons of one late Abdul Sab Kadpe who died 6 years prior to the filing of the suit. Therefore, the appellant and respondents have succeeded the property left by the father late Abdul Sab Kadpe. Father of the appellant and defendant was the owner in possession of the lands bearing fay. No. 571/1 and sy. No. 290/1 measuring 9 acres 3d guntas and 3 acres 18 guntas respectively of Dornahalli village, Shahapur Taluk. Apart from that the father of the appellant and respondents own house bearing No. 7/119 of that village. It is the further case of the appellant/plaintiff that since their father was whimsical man having peculiar mentality, therefore, the above said properties wore transferred and mutated in the name of the first respondent as he was the elder male member of the family. The appellant and respondents got divided the said properties and that 1/3 share each in land in sy. No. 571/1 and 1/2 share each in land in sy. No. 290/1 fell into the share of appellant and respondent No. 2. Whereas Respondent No. 1 has relinquished his share in the land sy. No. 571/1 in favour of the appellant and respondent No. 2 and took the house including the share in sy. No. 2 90/1. Therefore, the appellant is the owner in possession of the lands in sy. No. 571 and sy. No. 290/1 measuring 3 acres 13 guntas and 1 acre 29 guntas respectively which are the B schedule properties to the plaint in respect of which the appellant/plaintiff has filed this suit. It is the further case of the appellant/plaintiff that himself and respondent No. 2 filed an application before the revenue authorities seeking mutation of their names in the revenue records. Since the first defendant filed objections, therefore, the matter was referred to the Tashildar Shahapur as a dispute case. After holding enquiry, the Tahsildar passed an order to enter the names of the appellant and respondents No. 1 and 2 in the record of rights. Therefore, the appellant is in peaceful possession of the lands. But the first respondent is denying the ownership of the appellant over the lands in the “B” schedule. The first respondent denied the share of the appellant and respondent No. 2 and the appeal filed by him before the Assistant Commissioner Yadgir challenging the order passed by the Tahsildar shows himself as owner of the land and he has obtained stay order from the Assistant Commissioner Yadgir with a sole intention to grab the entire properties. Hence he has filed a suit for declaration and injunction.
3. After receipt of the summons, the respondent No. I/defendant No. 1 appeared through his counsel. The respondent No. 2-defendant No. 2 remained exparte. Respondent No. 1 Who filed the written statement contended that the father of the defendant No. 1 was the owner and in possession of the land in sy. No. 571/1 measuring 9 acres 39 guntas of land and he sold it to him for Rs. 500/- under a registered sale deed dated 7.1.1966 and that hie father was the owner of the land in sy. No. 2 90/1 measuring 3 acres 18 guntas till his death and after the death of his father, the same was subject to partition among the three brothers. On the basis of the available pleadings, the trial court in all has framed 8 issues. After considering the oral and documentary evidence as well as c
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