Karnataka High Court
Dattatraya vs Shivaji And Ors on 25 July, 2024
-1-
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200367 OF 2023 (PAR/POS)
BETWEEN
DATTATRAYA S/O LATE GOVINDRAO
AGE ABOUT : 62 YEARS,
OCC: RETD. GOVT. SERVANT
R/O. H.NO.1-889/12A,
LAL BAHADDUR SHASTRI NAGAR,
NEAR JEWARGI ROAD,
RAILWAY UNDER BRIDGE,
KALABURAGI-585102.
...APPELLANT
(BY SRI RAVI B. PATIL, ADVOCATE)
AND:
1. SHIVAJI S/O GOVINDRAO
AGE: 72 YEARS,
OCC: RETD. EMPLOYEE OF DCC BANK
R/O. MAKA LAYOUT JEWARGI COLONY
KALABURAGI-585102.
2. SMT. ASHA W/O LATE TANAJI PAWAR
AGE: 55 YEARS, OCC: HOUSEHOLD
R/O. H. NO.1-889/12
LAL BAHADDUR SHASTRI NAGAR
NEAR JEWARGI ROAD,
RAILWAY UNDER BRIDGE
KALABURAGI-585102.
3. NEHA D/O LATE TANAJI PAWAR
AGE: 31 YEARS, OCC: PVT. JOB
R/O. H. NO.1-889/12
LAL BAHADDUR SHASTRI NAGAR
-2-
NEAR JEWARGI ROAD,
RAILWAY UNDER BRIDGE
KALABURAGI-585102.
4. NIKHEEL S/O LATE TANAJI PAWAR
AGE: 29 YEARS, OCC: PVT. JOB
R/O. H. NO.1-889/12
LAL BAHADDUR SHASTRI NAGAR
NEAR JEWARGI ROAD,
RAILWAY UNDER BRIDGE
KALABURAGI-585102.
5. SMT. CHAMPABAI
W/O LATE KRISHNAJI RAO PAWAR
AGE: 71 YEARS, OCC: HOUSEHOLD
R/O. NEAR BALAJI NAGAR
NEAR RAM MANDIR
OMERGA DIST. OSMANABAD-413501
MAHARASHTRA STATE.
SMT. KASTURIBAI
W/O VINAYAK RAO SALUNKE
SINCE DECEASED BY HER LR'S.
6. ANAND
S/O VINAYAKRAO SALUNKE
AGE: 53 YEARS, OCC: CONTRACTOR,
R/O. H.NO.B-3
ASHRAYA SOCIETY HOTAGI ROAD,
SOLAPUR-413501.
7. DR. ARVIDN
S/O VINAYAKRAO SALUNKE
AGE: 51 YEARS,
OCC: MEDICAL PRACTITIONER
R/O. H. NO.B-3
ASHRAYA SOCIETY HOTAGI ROAD
SOLAPUR-413501.
8. SMT. MANGALA
W/O ANKUSH MOTE
AGE: 61 YEARS, OCC: DISTRICT JUDGE
DISTRICT COURT
AURANGABAD-431001.
-3-
9. SMT. MAHISHA
W/O DILIP CHAWAN
AGE: 54 YEARS, OCC: TEACHER
R/O MANISHA DEEP
NEW BALAJI NAGAR ST COLONY
OMERGA, DIST. OSMANABAD-413501.
10. SMT. MANJU W/O DIGAMBAR ZAMBARE
AGE: 52 YEARS, OCC: BEAUTICIAN
R/O BEHIND HOTEL NAGALAND
MANGALVEDHEKAR NAGAR
PANDHAPUR DIST. SOLAPUR-413001.
11. SMT. VIMAL @ SUREKHA
W/O SURESH JADHAV
AGE: 72 YEARS, OCC: HOUSEWIFE
R/O H.NO.20 SARVODAYA
HOUSING SOCIETY INDIRA
NAGAR BIJAPUR ROAD
SOLAPUR-413001.
SMT. PRABHAVATI
W/O BANDIPANT JADHAV
SINCE DECEASED BY HER LR'S.
12. RAJA S/O BANDOPANT
AGE: 44 YEARS, OCC: SERVICE
R/O. NEAR RAM MANDIR KASABA
PETH TEMBURNI
TQ. MADHA, DIST. SOLAPUR-413001.
BALU S/O BANDOPANT JADHAV
SINCE BY LR'S.
13. SMT. SRASWATI
W/O LATE BALU ALIAS LAXMIKANTH
AGE: 34 YEARS, OCC: HOUSEHOLD
R/O. NEAR RAM MANDIR
KASABA PETH TEMBURNI
TQ. MADHA, DIST. SOLAPUR-413001.
14. MUKUND S/O BANDOPANT JADHAV
AGE: 40 YEARS, OCC: NIL,
-4-
R/O. FLAT.NO.102
1ST FLOOR TANISH RESIDENCY
ALANDI ROAD SAMARTH NAGAR
DIGHI PUNE-111045.
15. GANESH S/O BANDOPANT JADHAV
AGE: 33 YEARS, OCC: SERVICE
R/O. FLAT. NO.102 1ST FLOOR
TANISH RESIDENCY ALANDI ROAD
SAMARTH NAGAR DIGHI
PUNE-111045.
....RESPONDENTS
(BY SRI BASAVARAJ KAREDDY, ADV. FOR R2 TO R4;
SRI GANESH S. KALABURGI, ADV. FOR R5;
SRI D.P. AMBEKAR, ADV. FOR C/R6, R7 TO R10, R12, R13,
C/R14, AND R15;
SRI RAVI G. MADABHAVI ADV. FOR C/R11
R1 SERVED)
THIS RSA IS FILED U/S. 100 OF THE CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE
FIRST APPELLATE COURT IN R.A. NO.57/2022 BY THE I ADDL.
DISTRICT JUDGE AT KALABULARGI CONSEQUENTIALLY TO SET
ASIDE THE ORDER DATED 11.08.2022 PASSED IN FDP
NO.6/2017 ACCEPTING THE REPORT OF THE COURT
COMMISSIONER BIFURCATING THE SCHEDULE PROPERTY AS
PER THE REPORT AS ILLEGAL AND ARBITRARY.
THIS APPEAL COMING ON FOR ADMISSION, HAVING
BEEN HEARD AND RESERVED ON 25.06.2024, COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
-5-
JUDGMENT
One Kasturibai instituted suit in O.S.No.59/2008, seeking for partition and separate position of 1/7th share in the suit schedule property. Initially the suit of the plaintiff was dismissed. Appeal preferred by the plaintiff was allowed and plaintiff-Kasturibai was allotted share in the suit schedule properties. One Prabhavati who was defendant No.8 also filed appeal against the judgment and decree in O.S. No.59/2008, the said appeal was also allowed and the judgment and decree in O.S. No.59/2008 was set aside, allotting 1/7th share in the suit schedule properties confirmed in RSA No.200329/2014 connected with RSA No.200328/2014. FDP No.6/2017 was preferred by the appellant along with respondent Nos.1 to 4 seeking final decree. The Court Commissioner was appointed, the Court Commissioner on visiting the spot filed report, which was accepted by the FDP Court.
2. The appellants, who were the petitioners in the final decree, appealed before the First Appellate Court, contending that the extent of land held as per Pahani/ROR -6- is 21 acres 14 guntas and as per the preliminary decree the extent of land held by the family is 18 acres 14 guntas, therefore, the measurement of the land in question is not in conformity with the measurement as per the Akarband and the objections filed by the appellant to the Court Commissioner report has not been considered and the acceptance of commissioner's report is without providing proper opportunity. The First Appellate Court held that though the Trial Court has not assigned reasons for overlooking the objections, it has given justice to the cause and dismissed the appeal preferred by the appellants.
3. Learned counsel for the appellant urged the following grounds:
(i) That the appellant had filed objections to the Court Commissioner's report, but the same is not considered by both the Courts.
(ii) No opportunity has been provided by the Trial Court to cross examine the Court Commissioner.-7-
(iii) As per the Court Commissioner's report the extent shown in Akarband and Pahani are not tallied with each other and the Court Commissioner has divided the property on the basis of the extent shown in RTC.
(iv) The property allotted by the Court
Commissioner to the appellant is
encroached by the third parties to the extent of 1 acre 15 guntas.
4. Learned counsel submits that Akarband is the actual document and earlier Akarband indicated 17 acres 34 guntas whereas, the Pahani/RTC is indicating 18 acres 14 guntas and the report submitted by the Commissioner on basis of the Pahani/RTC ought not to have been accepted by the Final Decree Court.
5. Per contra, learned counsel appearing for the respondent submits that:
(i) The objections filed by the appellant has been considered by the Trial Court and there is no illegality or irregularity in the report, -8- hence, questioning the commissioner's report would not arise.
(ii) That in the earlier suit in O.S.No.241/1998, there was a compromise in FDP No.21/2005 the said compromise was without including the daughters of Govinda Rao-the original propositus and in the said compromise, the appellant herein was allotted the northern portion of the property, which is the same property allotted to the appellant by reducing the extent of land earlier it was 4 acres 4 guntas as per the compromise as daughters were not included and now it is the same land.
(iii) That the appellant had never objected with regard to Akarband or with regard to road and now in order to deprive the shareholders from the decree has raised the frivolous objections.-9-
6. Having heard the learned counsel for the parties at lis, the only point that arises for consideration in this appeal is:
"Whether the Courts below were justified in accepting the Commissioner's report?"
7. Admitted fact is that widow of Krishna Ji, one Champa Bai filed a suit for partition O.S. No.241/1998, compromise was entered in FDP No.21/2005, wherein the appellant was allotted the northern part (blue colour), which was voluntarily accepted, the very portion is now marked for allocation by the Commissioner. Against the final decree order, only Dattattreya assailed before the First Appellate Court and before this Court as well. The other petitioners who are respondent Nos.6 and 7 have not assailed the order of the final decree. To answer the contention of the appellant that he was not heard while considering the Commissioner's report the material, more particularly the judgment and decree of the Courts below have been perused.
- 10 -
8. The objections filed by the petitioners- appellants herein to the Commissioner report was considered by the Trial Court as is evident from paragraph Nos.7 and 8. On consideration, the Trial Court was of the opinion that the Court Commissioner has carried out a proper commission work and overruled the objections of the petitioners-appellant and accepted the Commissioner report.
9. The First Appellate Court held that the preparation of 11 E sketch and correction of RTC will be as per the Akarband, Akarband is the preliminary data and RTC is the secondary one and the objection raised by the petitioners-appellants were considered by the Trial Court. Akarband prevails over the extent of RTC and the Akarband shall be corrected in the RTC, moreover, the boundary prevails over the extent of land in the RTC, the boundaries in the Commissioner's report and the boundaries mentioned in the suit property are one and the same. The Akarband is a critical document in Karnataka Land Record System. It is primarily a land revenue
- 11 -
document providing a brief overview of a land's characteristics. It provides a geometrical representation to the total extent of the property. The Akarband document is pivotal, particularly when the land is being divided or when there is a change in ownership. It is an important document for the properties associated with agricultural land, as it gives complete representation of the attributes of the land.
10. Having an Akarband can serve as legal proof, proving land ownership and also helping in resolving property dispute and in legal proceedings. Akarband shows basic information like particular survey number, hissa number, village and taluka details and total extent of land of the property. Additional attributes about the land parcel, like the amount of kharab, (waste land) and how much of the land can be cultivated are also available. At the same time, it also contains information about the water sources available for the land whether water comes from the government or other irrigation sources is also mentioned. RTC is another important document in
- 12 -
Karnataka Land Records Management System. While Akarband focuses on physical aspects of the land, the RTC is also known as the Pahani offers a broader view of the land's legal and agriculture status. The RTC includes:
(i) Details of the landowner and the land measurement.
(ii) The type of crops grown in the last agriculture year.
(iii) The area under cultivation and the type of land.
(iv) Information on mortgages taken.
(v) Tax details and whether any taxes are due.
11. In the essence, the Akarband is a complementary document to the RTC and survey map. It is serving its unique purpose in land registration, property documentation, land transfer and land records management. The objection raised by the petitioner is that the measurement of the land in question as appearing in record of rights is not in conformity with the measurement of Akarband. According to the appellant,
- 13 -
Pahani is showing 18 acres 14 guntas and Akarband is indicating 17 acres 34 guntas. The suit property indicated 18 acres 14 guntas. The petitioners-appellants never objected to the extent of land shown in the suit property. Now the Commissioner has allocated the lands as per the measurements shown in the Commissioner's report. The appellants are unable to impress upon the Court as to how the Commissioner's report is not acceptable. The appeal of the appellants needs to be dismissed on the following grounds:
i. The objection raised by the appellants to the Commissioner's report regarding the variation in Akarband and Pahani is unsustainable for the simple reason that the petitioners- appellants never objected to the measurement of the suit property and as well as the boundaries which are indicated in the suit property.
ii. The boundaries mentioned in the Court Commissioner's report and the boundaries
- 14 -
mentioned in the suit property are one and the same.
iii. The law is well settled that the boundaries prevail over the extent of RTC. The boundaries of the suit property has never been questioned by the appellant. For the first time, by filing objections, it is contended that the Akarband and pahani not in conformity.
iv. The property now as per the Court Commissioner's report, which is sought to be allotted to the appellant in an FDP No.21/2005 arising out of partition suit in O.S.No.241/1998, the appellant herein was allotted the Northern portion, the very portion which is now allotted by the Commissioner, now the appellant cannot contend that the Commissioner work carried out and the Commissioner report is not proper. The Courts below have rightly assessed the entire oral and documentary
- 15 -
evidence warranting no interference as stated supra.
12. The Trial Court and the First Appellate Court, on considering the Commissioner's report and finding it proper, have accepted the report, there is no perversity in the findings of facts recorded by the Courts below and accordingly, this Court pass the following:
ORDER i. The Regular Second Appeal is hereby dismissed.
ii. The Judgment and decree of the Courts below stands confirmed.
Sd/-
(K S HEMALEKHA) JUDGE MBM/SWK CT-VD