Smt Bharathi vs Sri J C Narayanappa
2022 Latest Caselaw 11895 Kant

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                                                                MSA NO.46 OF 2021


                               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                 DATED THIS THE 16TH DAY OF SEPTEMBER, 2022

                                                   BEFORE
                                    THE HON'BLE MR. JUSTICE E.S. INDIRESH
                           MISCELLANEOUS SECOND APPEAL NO.46 OF 2021 (RO)
                          BETWEEN:

                          SMT. BHARATHI
                          W/O NAGARAJU
                          AGED ABOUT 35 YEARS,
                          R/AT VARANASI @
                          JINKATHIMMANAHALLI VILLAGE
                          BIDARAHALLI HOBLI
                          BANGALORE EAST TALUK
                          PIN CODE-560 016
                                                                       ...APPELLANT

                          (BY SRI. SIDDAMALLAPPA P M., ADVOCATE)

                          AND:

                          1.   SRI J C NARAYANAPPA
                               S/O CHIKKARAMAIAH
                               AGED ABOUT 72 YEARS,
                               RESIDING AT VARANASI
                               @ JINKATHIMMANAHALLI VILLAGE
Digitally signed by
LAKSHMINARAYAN N               BIDARAHALLI HOBLI
Location: High Court of
Karnataka                      BANGALORE EAST TALUK
                               PIN CODE-560 016

                          2.   SMT MANJULA
                               W/O MUNIRAJU
                               D/O J C NARAYANAPPA
                               AGED ABOUT 42 YEARS,
                               RESIDING AT VARANASI @ JINKATHIMMANAHALLI
                               VILLAGE
                               BIDARAHALLI HOBLI
                               BANGALORE EAST TALUK
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                                     MSA NO.46 OF 2021


     PIN CODE-560 016

3.   SRI SHIVAKUMAR @ KUMARA
     S/O J C NARAYNAPPA
     AGED ABOUT 40 YEARS,
     RESIDING AT VARANASI
     @ JINKATHIMMANAHALLI VILLAGE
     BIDARAHALLI HOBLI
     BANGALORE EAST TALUK
     PIN CODE-560 016

4.   SRI CHANDRA
     S/O J C NARAYANAPPA
     AGED ABOUT 39 YEARS,
     RESIDING AT VARANASI
      @ JINKATHIMMANAHALLI VILLAGE
     BIDARAHALLI HOBLI
     BANGALORE EAST TALUK
     PIN CODE-560 016

5.   SRI K RAJASHEKAR
     S/O LATE J C KRISHNAPPA
     AGED ABOUT 50 YEARS,
     RESIDING AT NO.365
     UCO BANK ROAD,
     RAMAMURTHY NAGAR
     BANGALORE-560 016
                                        ...RESPONDENTS

(BY SRI. C.M. NAGABHUSHAN, ADVOCATE
 FOR SRI S.J. KUMAR, ADVOCATE FOR R1;
NOTICE TO R2 IS HELD SUFFICIENT;
NOTICE TO R3 TO 5 SERVED BUT UNREPRESENTED)

     THIS MSA IS FILED UNDER SEC. 43 RULE 1(U) OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 30.06.2021
PASSED IN RA.NO.48/2018 ON THE FILE OF THE VIII
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRICT, BENGALURU, ALLOWING THE APPEAL AND
SETTING ASIDE THE ORDER DATED 02.04.2018 PASSED IN
FDP.NO. 05/2014 ON THE FILE OF THE PRINCIPAL SENIOR
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                                             MSA NO.46 OF 2021


CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU,
PARTLY ALLOWING THE PETITION FILED UNDER ORDER 20
RULE 18 R/W SEC.151 OF CPC., TO DRAW FINAL DECREE.
     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

This Miscellaneous Second Appeal is preferred by the

petitioner challenging the judgment and decree dated 30th

June, 2021 in Regular Appeal No.48 of 2018 on the file of the

VIII Additional District and Sessions Judge, Bangalore Rural

District, setting aside the judgment and decree dated 02nd April

2018 passed in Final Decree Proceedings No.5 of 2014 on the

file of Principal Senior Civil Judge, Bangalore Rural District,

remanding the matter to the trial Court for fresh consideration.

2. The relevant facts for adjudication of this appeal is

that the appellant herein is the plaintiff in Original Suit No.595

of 2004 seeking relief of partition and separate possession in

respect of the suit schedule property and the said suit came to

be decreed on 15th November, 2010 declaring that the plaintiff

is entitled for 1/15th share in the suit schedule property. The

defendants have preferred appeal in Regular Appeal No.337 of

2010 before the Fast Track Court-V, Bangalore Rural District

MSA NO.46 OF 2021

and the said appeal came to be allowed, and being aggrieved

by the same, the plaintiff has preferred Regular Second Appeal

No.1715 of 2011 before this Court and this Court, decreed the

suit of the plaintiff and being aggrieved by the same, the

defendants had preferred SLP No.11691 of 2014 before the

Hon'ble Apex Court and same came to be dismissed on 24th

October, 2016. In view of the same, the share of the plaintiff

was fixed as 1/15 in respect of the suit schedule property.

Pursuant to same, the plaintiff has filed Final Decree

Proceedings No.5 of 2014 before the trial Court, which came to

be disposed of on 02nd April, 2018 in terms of the Report of the

Court Commissioner in respect of the properties at items 2 to

5; and feeling aggrieved by the same, defendants have

preferred Regular Appeal No.48 of 2018 before the First

Appellate Court and the First Appellate Court, after considering

the material on record, by its judgment and decree dated 30th

June, 2021, set aside the judgment and decree in Final Decree

Proceedings No.5 of 2014 and remanded the matter to the trial

Court for fresh consideration. Feeling aggrieved by the same,

the plaintiff has preferred this Miscellaneous Second Appeal.

MSA NO.46 OF 2021

3. I have heard Sri P.M. Siddamallappa, learned Counsel

appearing for the appellant and Sri C.M. Nagabhushan, learned

counsel appearing for Sri S.J. Kumar, Counsel for respondent

No.1.

4. Sri P.M. Siddamallappa, learned Counsel appearing for

the appellant contended that the First Appellate Court has

committed an error in not accepting the report of the Tahsildar,

wherein the division of property has been made in accordance

with law. Accordingly, he sought for interference of this Court

in this appeal. He further contended that since the defendants

have not filed objection to the Report of the Commissioner, the

same was accepted and in that view of the matter, the trial

Court was justified in accepting the same, and the said aspect

of the matter was not considered by the First Appellate Court

and accordingly, he sought for interference of this Court.

5. Per contra, Shri C.M. Nagabhushan, learned Counsel

appearing for the contesting respondent No.1 invited the

attention of the Court to the operative portion of the order

dated 02nd April, 2018 in Final Decree Proceedings No.5 of 2014

and also made available the copy of the sketch/report of the

MSA NO.46 OF 2021

Court Commissioner and contended that the Court

Commissioner has not properly divided the property amongst

the defendants as such, and therefore, the same cannot be

accepted. He further contended that it is the duty of the Court

to effect partition and not the Court Commissioner, who has

been appointed to divide the property and to file Report before

the trial Court for final adjudication, and in this regard, he

referred to the judgment of this Court in the case of SMT.

OBAMMA AND OTHERS v. SHRI BORAIAH AND OTHERS

reported in ILR 2016 KAR 4692.

6. In the light of the submissions made by learned

counsel appearing for the parties and a careful consideration of

the impugned judgment passed by the First Appellate Court,

would indicate that the Final Decree Proceedings No.5 of 2014

is arising out of the judgment and decree dated 15th November,

2010 in Original Suit No.595 of 2004 whereby the declaration

has been made that the petitioner is entitled for 1/15th share in

the suit schedule property. Undisputably, there are five items

of the property. It is submitted by both the parties that there

is no dispute with regard to division of items 2 to 5 of the suit

MSA NO.46 OF 2021

schedule property as per the judgment and decree in Original

Suit No.595 of 2004. However, as regards item No.1 of suit

schedule property is concerned, it is submitted that the same

be deferred as litigations are pending consideration. With

regard to the Report of the Court Commissioner filed before the

Final Decree Proceedings, I have noticed that the Court

Commissioner has marked the portion of the property to be

given to the plaintiff and defendants collectively. The Court

Commissioner ought not to have identified the portion of the

property which may be given to the plaintiff or defendants in

the Sketch/Report and it is the duty of the Court to

allocate/divide the property between and amongst the parties

to the suit, in terms of the judgment and decree in the original

suit. In that view of the matter, I find force in the submission

made by the learned Counsel appearing for the respondent

herein that the First Appellate Court, has rightly arrived at a

conclusion that the division of the property made by the Court

Commissioner is not correct and it is the duty of the Court to

divide the property equitably, in terms of the judgment and

decree in the Original Suit, and therefore, acceptance of the

division made by the Court Commissioner by the trial Court, is

MSA NO.46 OF 2021

contrary to the provisions contained under Section 54 of Code

of Civil Procedure and therefore, I do not find any merit in the

submission made by the learned counsel for the appellant.

Appeal, accordingly dismissed.

Sd/-

JUDGE

LNN