Karnataka High Court
Smt. Parvatewwa vs Shivappa on 24 June, 2022
Bench: Ravi V.Hosmanipresided Byrvhj
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MSA No. 100021 of 2020
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 24TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS SECOND APPEAL NO.100021 OF 2020 (RO)
BETWEEN:
SMT. PARVATEWWA
W/O SHIVAPPA PADENNAVAR
SINCE DECEASED BY HER LR
MALLAPPA
S/O SHIVAPPA PADENNAVAR
AGE: 47 YEARS, OCC: AGRICULTURE
R/O SUNADHOLI VILLAGE-591 310
TQ: GOKAK, DIST: BELAGAVI.
...APPELLANT
[BY SRI SHRIHARSH A NEELOPANTH, ADVOCATE (VC)]
AND:
1. SHIVAPPA
S/O ALLAPPA PADENNAVAR
AGE: 82 YEARS, OCC: AGRICULTURE
R/O SUNADHOLI VILLAGE-591 310
TQ: GOKAK, DIST: BELAGAVI.
2. SMT. SHANTAWWA
W/O SATAPPA BELAGUDRI
AGE: 55 YEARS, OCC: HOUSEHOLD
R/O DOCTORS COLONY
BEHIND MSRTC DEPOT
GADHINGLAJ-416 502
MAHARASHTRA.
3. SMT. ANNAVVA
W/O KALLAPPA BOMBARAGI
AGE: 53 YEARS, OCC: HOUSEHOLD
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MSA No. 100021 of 2020
R/O HUNSHYAL P.Y.-591 224
TQ: GOKAK, DIST: BELAGAVI.
4. SHANKAR
S/O SHIVAPPA PADENNAVAR
AGE: 49 YEARS, OCC: AGRICULTURE
R/O SUNADHOLI VILLAGE-591 310
TQ: GOKAK, DIST: BELAGAVI.
5. NAGAVVA
W/O VITTAL PATIL
AGE: 43 YEARS, OCC: AGRICULTURE
R/O NINGAPUR VILLAGE-591 233
TQ: GOKAK, DIST: BELAGAVI.
6. SIDDAPPA
S/O BASAPPA BAGOJI
AGE: 74 YEARS, OCC: AGRICULTURE
R/O MUNYAL VILLAGE-591 312
TQ: GOKAK, DIST: BELAGAVI.
7. SMT. GANGAVVA
W/O RAMAPPA BAGOJI
AGE: 64 YEARS, OCC: AGRICULTURE
R/O MUNYAL VILLAGE-591 312
TQ: GOKAK, DIST: BELAGAVI.
8. BASAVARAJ
S/O IRAPPA BAGOJI
AGE: 28 YEARS, OCC: AGRICULTURE
R/O MUNYAL VILLAGE-591 312
TQ: GOKAK, DIST: BELAGAVI.
9. SMT.MALASHRI @ MALLAWWA
W/O SHIVABASU SHANKRENNAVAR
AGE: 27 YEARS, OCC: HOUSEHOLD WORK
R/O KAMALADINNI VILLAGE-591 312
TQ: GOKAK, DIST: BELAGAVI.
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MSA No. 100021 of 2020
10. PRAKASH
S/O IRAPPA BAGOJI
AGE: 24 YEARS, OCC: AGRICULTURE
R/O MUNYAL VILLAGE-591 312
TQ: GOKAK, DIST: BELAGAVI.
11. MAHADEV
S/O BASAPPA BUGOJI
AGE: 65 YEARS, OCC: AGRICULTURE
R/O MUNYAL VILLAGE-591 312
TQ: GOKAK, DIST: BELAGAVI.
12. ALLAPPA
S/O SHIVAPPA PADENNAVAR
AGE: 57 YEARS, OCC: AGRICULTURE
R/O SUNADHOLI VILLAGE-591 310
TQ: GOKAK, DIST: BELAGAVI.
13. SIDDAPPA
S/O SHIVAPPA PADENNAVAR
AGE: 52 YEARS, OCC: AGRICULTURE
R/O SUNADHOLI VILLAGE-591 310
TQ: GOKAK, DIST: BELAGAVI.
...RESPONDENTS
[BY SRI A.B.KONI AND SRI S.B.PATIL, ADVOCATES FOR
R6 TO R10 (ABSENT); R1 TO R5 & R11- NOTICE SERVED AND
UNREPRESENTED V/O DATED 19.11.2021; NOTICE TO R12
AND R13 ARE HELD SUFFICIENT]
THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER
SECTION 43 RULE 1(U) OF C.P.C., PRAYING TO SET ASIDE THE
IMPUGNED JUDGMENT AND DECREE IN R.A.NO.277/2019 DATED
17.02.2020 PASSED BY THE XII ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BELAGAVI, SITTING AT GOKAK AND ETC.,
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY,
COURT DELIVERED THE FOLLOWING:
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MSA No. 100021 of 2020
JUDGMENT
Challenging impugned judgment and decree in
R.A.No.277/2019 dated 17.02.2020 passed by XII Addl. District
& Sessions Judge, Belagavi sitting at Gokak, confirming order
dated 24.11.2018 passed in FDP No.07/2017 passed by Prl.
Senior Civil Judge, Gokak, this appeal is filed.
2. Appellant herein is petitioner no.1(e) in
FDP.No.7/2017; while respondents 1 to 5 were petitioners no.1
(a) to (f) and respondents no.6 to 13 herein were respondents
no.1 to 8 in F.D.P.No.7/2017. For sake of convenience parties
shall herein after be referred to as per their ranking in FDP.
3. FDP No.7/2017 was filed for drawing up of final decree
in pursuance of preliminary decree dated 13.12.2016 passed in
O.S.No.415/2014. On 24.11.2018, petition was disposed of by
directing drawing up decree in terms of Commissioner's report.
Decree was drawn on stamp paper on 01.03.2019. Aggrieved
by decree, respondent no.1 (original defendant no.1) filed
R.A.No.277/2019. First appellate Court allowed appeal and
remanded matter to trial Court with directions. Trial Court was
directed to reappoint Commissioner by giving instructions in
MSA No. 100021 of 2020
terms of observations made and to draw fresh decree
thereafter.
4. Assailing order of remand, petitioner no.1(e) in final
decree proceedings has filed this appeal.
5. Sri. Shriharsh A Neelopanth, learned counsel for
petitioner no.1(e) submitted that prior to drawing up decree,
trial Court had appointed Tahsildar, Gokak as Court
Commissioner for inspection of suit property and to file report
for its division in terms of decree. After issuing notices to all
parties, Commissioner inspected suit properties, and prepared
sketch. He also drew mahazar during spot inspection. Said
mahazar was signed by parties. Trial Court accepted said report
and directed drawing up of final decree in terms of report.
Thereafter stamp papers were furnished and decree was also
drawn on stamp paper.
6. Learned counsel submitted that Hon'ble Supreme Court
in the case of Shankara Balwant Lokhande (DEAD) by Lrs.
Vs. Chandrakant Shankar Lokhande And Another,1 after
consideration of provisions of Order XX Rule 18 of CPC held
(1995) 3 SCC 413,
MSA No. 100021 of 2020
that once decree is drawn on stamp paper it becomes
executable. Thereafter challenge to preliminary decree would
not be tenable.
7. Referring to observations of trial Court (in para no.9),
that sketch prepared by Court Commissioner was in accordance
with preliminary decree, prior to preparation of report
Commissioner had issued notices to all parties and parties had
signed mahazar drawn, learned counsel submitted that as
respondent no.1 had not objected to its acceptance, he was
estopped from filing appeal.
8. He further submitted that grounds raised in first appeal
were in nature of assailing preliminary decree, which was not
permissible, as decree had attained finality. He further
submitted that only reason assigned by first appellate Court for
remanding matter was that approach of Commissioner in
effecting division was unscientific and Commissioner ought to
have made division in such manner where sharers would get
shares in compact block with minimum sub-division. It was
contended that doing so would be contrary to preliminary
MSA No. 100021 of 2020
decree. On said ground learned counsel sought for allowing
appeal by setting aside impugned judgment.
9. Contesting respondent namely, respondent no.1
though represented by counsel before this Court, remained
absent.
10. Heard learned counsel, perused impugned judgment
and decree and record.
11. From above submission, it is not in dispute that
preliminary decree passed in O.S.No.415/2014 has attained
finality. Said decree is as under:
" Suit of the plaintiff is partly decreed.
It is hereby declared that the
plaintiff is entitled to 1/10th share in
item nos.1 to 3, 5 and 7 of suit
properties, in 1 acre 28 guntas of land
in item no.4 of suit property and in 22
guntas of land in item no.6 of suit
property.
The defendant nos.1 and 6 are
entitled to 3/10th share each and the
defendant nos. 2 to 5 are collectively
entitled for 3/10th share in the above
said properties.
MSA No. 100021 of 2020
To carve out their respective
shares, the defendants are liable to pay
separate court fee.
No order as to costs.
Office to draw preliminary decree
accordingly."
12. Trial Court granted specific shares to parties in their
respective proportions in suit properties. It observed in its
order that original defendants no.1 to 3 and 5 had entered
appearance through counsel, but not filed objections.
Thereafter Tahsildar, Gokak was appointed as Court
Commissioner for inspection of suit schedule properties and
preparation of report for division of properties in terms of
preliminary decree. Said Commissioner issued notice to all
parties and executed warrant and submitted his report by
drawing mahazar in presence of all parties.
13. Though objections were filed against report, it was
only about non-service of notice by Court Commissioner. No
objections were filed regarding manner of demarcation of
shares either being unscientific or being contrary to preliminary
decree. But, grounds urged in first appeal were that
MSA No. 100021 of 2020
Commissioner's report was accepted blindly, trial Court did not
consider principles of survey for division of immovable property
and division was done in unscientific manner and portions
allotted made cultivation impossible. No ground was urged
about non-service of notice or challenging observations of trial
Court about signature of parties to mahazar drawn at time of
spot inspection.
14. Admittedly, preliminary decree directs apportionment
of share in suit schedule properties to all parties in all items.
Admittedly, there are 10 shares to be demarcated. Extent of
suit schedule item no.1 is 02 acres 8 guntas; item no.2 is 38
guntas; item no.3 is 01 acre 18 guntas; item no.4 is 03 acre
14 guntas; item no.5 is 38 guntas; item no.6 is 01 acre 25
guntas and item no. 7 is 2 acres 13 guntas. Therefore division
in terms of decree would without any doubt result in small
portions. But, same was in terms of preliminary decree which
admittedly has attained finality.
15. Therefore, first appellate Court was not justified in
allowing appeal, especially on grounds which were in nature of
indirect challenge to preliminary decree. First appellate Court
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MSA No. 100021 of 2020
has sought to interfere with final decree on ground that
portions of property allotted to sharers were non-allotment of
shares in a single compact block, though appears attractive, in
fact, would be far from being practicable.
16. On perusal of report of Court Commissioner, it is
seen that demarcation of shares is as per preliminary decree.
17. For the reasons aforesaid, I do not find sufficient
justification for first appellate Court to have allowed appeal and
to set aside final decree drawn merely on ground that it could
take a different view from that of trial Court.
In the result, I pass following order:
ORDER
Appeal is allowed. Impugned judgment and decree dated
17.02.2020 passed by first appellate Court in R.A.No.277/2019
is set aside. Final decree dated 24.11.2018 drawn in FDP
No.7/2017 by Prl. Senior Civil Judge, Gokak, is confirmed.
Sd/-
JUDGE
Psg*
