Karnataka High Court
Sri. Mallappa S/O Shivappa Sangapur vs Kumari. Sattevva D/O Siddappa Sangapur on 1 July, 2024
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NC: 2024:KHC-D:8938
RSA No. 100921 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100921 OF 2023 (PAR/POS-)
BETWEEN:
SRI MALLAPPA
S/O SHIVAPPA SANGAPUR
AGE: 42 YEARS,
OCC: AGRICULTURE,
R/O. TODALABAGI,
TQ: JAMKHANDI,
DIST: BAGALKOT.
...APPELLANT
(BY SRI MRUTYUNJAY TATA BANGI &
SRI S.S.YALIGAR, ADVOCATE)
AND:
1. KUMARI SATTEVVA
D/O SIDDAPPA SANGAPUR
AGE: 11 YEARS,
OCC: STUDENT,
Digitally signed SINCE MINOR REPRESENTED BY
by SAROJA
HANGARAKI HER NATURAL MOTHER
RESPONDENT NO.2,
Location: HIGH
COURT OF
KARNATAKA 2. SMT. SHRIDEVI
DHARWAD W/O SIDDAPPA SANGAPUR
BENCH AGE: 31 YEARS,
DHARWAD OCC: HOUSEWIFE,
BOTH ARE R/O. TODALBAGI,
TQ: JAMKHANDI,
DIST: BAGALKOT.
3. SRI SIDDAPAP
S/O SHIVAPPA SANGAPUR
AGE: 43 YEARS,
OCC: AGRICULTURE,
R/O. TODALABAGI,
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NC: 2024:KHC-D:8938
RSA No. 100921 of 2023
TQ: JAMKHANDI,
DIST: BAGALKOT.
4. SMT. NIMBEVVA
W/O SHIVAPPA SANGAPUR
AGE: 69 YEARS,
OCC: HOUSEWIFE,
R/O. TODALABAGI,
TQ: JAMKHANDI,
DIST: BAGALKOT-587201.
5. SRI SUKANT
S/O BUJAPPA BELAGALI
AGE: 73 YEARS,
OCC: AGRICULTURE,
R/O. NAGNUR,
TQ: JAMKHANDI,
DIST: BAGALKOT-587201.
...RESPONDENTS
(BY SRI S.M.KALWAD, SRI JAYANANT KAMBLI &
SRI ASHOK L. ANGADI, ADVOCATES FOR R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.03/2019
DATED 17.02.2021 PASSED BY THE PRINCIPAL SENIOR CIVIL
JUDGE, JAMKHANDI AND THE JUDGMENT AND DECREE DATED
07.02.2019 PASSED BY THE ADDITINAL CIVIL JUDGE, JAMKHANDI
IN F.D.P. NO.06/2017 AND DISMISSING THE FDP BY ALLOWING THE
PRESENT APPEAL WITH COSTS THROUGHOUT IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:8938
RSA No. 100921 of 2023
JUDGMENT
The present second appeal is filed under Section 100 of Code of Civil Procedure, 19081 by the respondent No.2 challenging the order dated 17.02.2021 passed in RA No.03/2019 by the Court of Principal Senior Civil Judge, Jamkhandi2 and the order dated 07.02.2019 passed in FDP No.06/2017 by the Court of the Additional Civil Judge and JMFC, Jamkhandi3.
2. The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.
3. The relevant facts necessary for consideration of the present appeal are that pursuant to the decree for partition passed in OS No.26/2015, the plaintiffs preferred FDP No.06/2017. The Trial Court in the said final decree proceedings appointed the Assistant Director of Land Records, Jamkandi as the Court Commissioner to carry out the Commission work by demarcating the property by 1 Hereinafter referred to as the 'CPC' 2 Hereinafter referred to as the 'First Appellate Court' 3 Hereinafter referred to as the 'Trial Court' -4- NC: 2024:KHC-D:8938 RSA No. 100921 of 2023 metes and bounds in terms of the preliminary degree. The Commissioner has visited the spot and filed report together with the hand sketch. The respondent Nos.1 to 3 in the said proceedings filed objections to the said report. The respondent No.4 in the final decree proceedings is the purchaser from the respondents. It is recorded by the Trial Court that the respondent No.4 did not object to the report filed by the Court Commissioner. Considering the objections filed by respondent Nos.1 to 3, the Trial Court allowed the petition, accepted the report of the Court Commissioner and directed for drawing up of the final decree in terms of the said Commissioner's report. 4. Being aggrieved the respondent Nos.1 to 3 preferred RA No.03/2019. The First Appellate Court, considering the objections put forth by the said respondents in the appeal and having regard to the undertaking given by the petitioners/ plaintiffs, modified the order by granting access which was marked as -5- NC: 2024:KHC-D:8938 RSA No. 100921 of 2023 EFGHJI. The relevant portion of the order of the First Appellate Court is extracted herein for the reference:
The appeal U/Order XLI rule 1 of the Code of Civil Procedure filed by the appellant is hereby partly allowed.
Consequently the judgment and decree of the trial court in FDP No.6/17 passed on 07.02.2019 is hereby modified to the extent of path way with a width of 8 feet from the south of the block shown as FG in EFGHJI in the sketch.
The final decree shall be modified to the extent of path way shown above.
Draw fresh decree accordingly.
Office to send back the trial court records along with copy of this judgment.
5. The learned counsel for the appellants would vehemently contend that the access given by the First Appellate Court which has been marked as EFGHJI would be detrimental to the purchaser inasmuch as it reduced the boundary of the property that was conveyed to him. -6-
NC: 2024:KHC-D:8938 RSA No. 100921 of 2023
6. Per contra, learned counsel for the respondents justifies the order passed by the First Appellate Court.
7. It is forthcoming that the subsequent purchaser is respondent No.4 in the final decree proceedings. It is pertinent to state here that the respondent Nos.1 to 3 has already conveyed the property in respect of which the access has been restricted.
8. Further, it is relevant to note that the First Appellate Court has modified the demarcation made by the Commissioner on the basis of which the decree has been passed, only pursuant to a memo that has been filed by the respondent Nos.1 to 3 therein, who are the petitioners in the final decree proceedings and by the said memo, the petitioners had undertaken not to object to any easementary right. The use of the pathway has been granted pursuant to the said undertaking given by the respondent Nos.1 to 3.
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NC: 2024:KHC-D:8938 RSA No. 100921 of 2023
9. It is forthcoming that the respondent Nos.1 to 3 in the final decree proceedings have preferred RA No.03/2019 and being aggrieved by the order passed by the First Appellate Court, only respondent No.2 has filed the present appeal.
10. In view of the fact that the order passed by the First Appellate Court was practically emanating out of a consensus between the parties, the question of the present appellant subsequently challenging the same does not arise.
11. The appellants have failed in demonstrating that any substantial question of law arises for consideration in the present second appeal. Hence, the above appeal is dismissed at the stage of admission itself as being devoid of merit.
Sd/-
JUDGE PJ CT:GSM List No.: 1 Sl No.: 47