Karnataka High Court
Shidalingappa Basavanneppa ... vs Kotrappa Chandrashekarappa ... on 24 August, 2023
Bench: Anant Ramanath Byarhj
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NC: 2023:KHC-D:9510
RFA No. 1578 of 2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 1578 OF 2007 (RES-)
BETWEEN:
1. SHIDALINGAPPA BASAVANNEPPA KOTAMBRI
BY HIS L.RS
1.A SMT. RUDRAMMA
W/O SHIDDALINGAPPA KOTAMBRI
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: ADARGUNCHI, TQ: HUBLI,
DIST: DHARWAD.
(DIED IN JULY 2022. HER LRS ARE
APL.NOS.2 AND 3 AND 1(B) TO 1(D)
NOTED AS PER ORDER ON 06.03.2023 ON MEMO)
1.B SMT. RUDRAVVA
W/O NINGANGOUDA PATIL
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: PERAMWADI,
Digitally
TQ AND DIST: BELGAUM.
signed by
VIJAYALAXMI
VIJAYALAXMI M BHAT
M BHAT Date:
2023.08.30
14:54:10
1.C SMT. PREMA
+0530
W/O DAYANAND HALAGADGI
R/O: SANKESHWAR, TQ: HUKKERI,
DIST: BELGAUM.
1.D AKKAMAHADEVI
D/O SHIDDALINGAPPA KOTAMBRI
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: ADARGUNCHI, TQ: HUBLI,
DIST: DHARWAD.
2. REVANSHIDDAPPA SHIDDALINGAPPA KOTAMBRI
AGE: MAJOR, OCC: AGRICULTURIST,
TQ: HUBLI, DIST: DHARWAD.
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RFA No. 1578 of 2007
3. VEERABHADRAPPA SHIDDALINGAPPA KOTAMBRI
AGE: MAJOR, OCC: AGRICULTURIST,
TQ: HUBLI, DIST: DHARWAD.
...APPELLANTS
(BY SRI. N.P.VIVEKMEHTA, ADVOCATE)
AND:
1. KOTRAPPA CHANDRASHEKARAPPA KOTAMBRI
AGE: MAJOR, OCC: AGRICULTURIST,
R/O: BANKAPUR, TQ: SHIGGAON,
DIST: HAVERI-581208.
(DIED ON 22.03.2021. HIS LRS BROUGHT
ON RECORD AS PER ORDER DATED 06.03.2023
ON IA.NO. )
1.A SMT. ANNAPURNA
W/O KOTRAPPA KOTAMBRI
AGE: 50 YEARS, OCC: HOUSEWIFE,
R/O: NEKAR ONI, BANKARPUR VILLAGE,
TQ: SHIGGAON, DIST: HAVERI-581116.
1.B SMT. HEMALEKHA
W/O BASAVARAJ MENASAGI
AGE: 30 YEARS, OCC: HOUSEWIFE,
R/O: GANESH COLONY, ISHWAR NAGAR,
TQ: HUBBALLI, DIST: DHARWAD-580025.
1.C SMT. JYOTI W/O VEERESH ITI
AGE: 27 YEARS, OCC: HOUSEWIFE,
R/O: HOSASANCHANNAPUR ONI,
TQ: KITTUR, DIST: BELGAUM-591115.
1.D SMT. SARASWATI @ GEETA
W/O RAMALINGAPPA MALANNANAVAR
AGE: 26 YEARS, OCC: HOUSEWIFE,
R/O: MUDDEBEKAR NEAR POLICE QUARTERS,
DIST: DHARWAD-580001.
1.E SMT. NANDA
W/O MAHESH KOTAMBRI
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RFA No. 1578 of 2007
AGE: 30 YEARS, OCC: HOUSEWIFE,
R/O: NEKAR ONI, BANKARPUR VILLAGE,
TQ: SHIGGAON, DIST: HAVERI-581116.
1.F VINAYAK
S/O MAHESH KOTAMBRI
AGE: 14 YEARS, OCC: STUDENT,
1.G SHRINIDHI
D/O MAHESH KOTAMBRI
AGE: 10 YEARS, OCC: STUDENT,
1.H VIJAY
S/O MAHESH KOTAMBRI
AGE: 6 YEARS, OCC: STUDENT,
PROPOSED LRS 6,7 AND 8 ARE MINORS ARE
REPRESENTED BY THEIR MOTHER
SMT. NANDA W/O MAHESH KOTAMBRI
AS MINOR GUARDIAN.
(THE PROPOSED LRS 5 TO 8 ARE
WIFE AND CHILDREN OF MAHESH S/O KOTRAPPA)
2. SMT. VISHALAXI
W/O KARABASAPPA KABBINADA
AGE: MAJOR, R/O: HALAGERI,
TQ: RANEBENNUR, DIST: HAVERI-581208.
(DIED ON 05.11.2010. HER LRS BROUGHT
ON RECORD AS PER ORDER DATED 06.03.2023
ON IA.NO. )
2.A SHIDDAPPA
S/O KARABASAPPA KABBINAD
AGE: 40 YEARS, OCC: AGRI.,
2.B SANTOSHKUMAR
S/O KARABASAPPA KABBINAD
AGE: 35 YEARS, OCC: AGRI.,
BOTH ARE R/O HALAGERI,
TQ: RANEBENNUR, DIST: HAVERI-581115.
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RFA No. 1578 of 2007
3. SMT. ANASUYA
W/O RUDRAPPA HUTAGI
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: UNAKAL, TQ: HUBLI,
DIST: DHARWAD-580020.
4. GURUPADAPPA
A/F GURUSHANTAPPA KOTAMBRI
AGE: MAJOR, R/O: BANKAPUR,
TQ: SHIGGAON, DIST: HAVERI-581202.
5. SMT. SUNITA
W/O UMESH KOTAMBRI
AGE: MAJOR, R/O: BANKAPUR,
TQ: SHIGGAON, DIST: HAVERI-581202.
...RESPONDENTS
(BY SRI. MALLIKARJUNSWAMY B HIREMATH, ADV. FOR R1 (A-D);
R1(E)-NOTICE SERVED;
R1(F TO H) ARE MINORS REPTD. BY R1(E);
R2(A) HELD SUFFICIENT;
R2(B) AND R3-NOTICE SERVED)
THIS RFA IS FILED U/S.96 R/W O XLI R 1 OF CPC, PRAYING
TO MODIFY THE ORDER OF ADDL.CIVIL JUDGE(SR.DN.) AND JMFC
HAVERI, DT:03.04.2007 PASSED IN FDP 2/1996 AND GRANT THE
RELIEF AS PRAYED BY APPELLANTS DECREEING FDP 2/1996 IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 1578 of 2007
JUDGMENT
Aggrieved by the final decree passed in FDP
No.2/1996 on the file of the Additional Senior Civil Judge
(Sr.dN), Haveri, the petitioners in the said Court are
before this Court.
2. The appellants are before this Court were the
plaintiffs in OS No.154/1981 on the file of Civil Judge
Haveri. The suit is one for partition and separate
possession wherein the plaintiffs claimed 1/3rd share in
suit schedule properties and also claimed mesne profit.
The suit was decreed in part. The plaintiffs together were
granted 6/25th share in the suit 'A' schedule property. The
plaintiffs were not burdened with the liability owned by the
family. The liability is fastened on defendants no.1, 4 and
5. The decree is also granted in respect of the residential
house awarding 6/25th share in 'A' Schedule property. The
suit in respect of movable property is dismissed. The
aforementioned decree does not grant any relief in respect
of profit claimed by the plaintiffs. Nevertheless, the
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RFA No. 1578 of 2007
plaintiffs filed final decree proceedings seeking mesne
profit of Rs.1,24,300/- from the defendants at the rate of
6% p.a. from the date of petition till realization. The
plaintiffs claimed that the possession of movable property
was handed over to them in the year 1994. The mesne
profit is claimed at the rate of Rs.500/- per acre and the
plaintiffs claim that they are entitled to 13 acres. Thus,
they have sought mesne profit of Rs.1,24,300/- along with
interest as stated above.
3. After recording the evidence, the trial Court
allowed the petition in part and awarded profit of
Rs.35,100/- along with the interest at the rate of 6% p.a.
from the of petition till date of payment. Aggrieved by the
aforementioned judgment and decree, the petitioners are
before this Court.
4. Sri. N.P.Vivekmehta, learned counsel for the
appellants submits that Rs.500/- per acre per annum is
bare minimum profit sought by the petitioners-appellants
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RFA No. 1578 of 2007
and there was no justification for the final decree Court to
award only Rs.300/- per acre per annum.
5. This Court has perused the impugned judgment
and decree and also perused the preliminary decree
passed in OS no.154/1981. As already noticed, there was
a prayer for mesne profit by the plaintiffs in the said suit.
However, the prayer is not granted. The preliminary
decree is granted only for the share in the suit 'A' schedule
property. The decree for partition in respect of movable
property is also declined. Since the prayer for mesne profit
is specifically made and relief is not granted for mesne
profit, this Court is of the view that there is no decree for
mesne profit.
6. The objection was raised before the final decree
Court in FDP No.2/1996 by the respondents on the
premise that in the preliminary decree there is no order
for payment of mesne profits. The objection was overruled
by the final decree Court in terms of order dated
04.12.2004. The Court has taken a view that though there
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RFA No. 1578 of 2007
is no decree for payment of past mesne profits, the
plaintiffs are entitled to profits from the date of the suit till
the date of delivery of possession. This order dated
04.12.2004 has attained finality. Thereafter, the evidence
was led by the present appellants. There was no rebuttal
evidence by the respondents. The appellants claimed that
they have grown groundnut and chilly. On the basis of the
evidence, the Court has given a finding that the groundnut
and chilly are grown in the suit schedule lands. The
appellants claim Rs.500/- per acre per annum as the profit
after deducting all the expenses. The final decree Court
has awarded Rs.300/- per acre per annum.
7. Learned counsel for the respondents,
Sri.Mallikarjunswamy B Hiremath submits that before the
Executing Court, the respondents have already paid the
amount of profits awarded by the Final Decree Court in the
execution proceedings. He submits there is no justification
for pursuing this appeal and enhancing the profits payable
to the appellants as claimed in this appeal.
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RFA No. 1578 of 2007
8. On appreciation of the evidence, this Court is of
the view that Rs.500/- per acre per annum claimed by the
appellants is a reasonable amount and there was no
justification to reduce the claim to Rs.300/- per acre per
annum in the absence of rebuttal evidence by the
respondents.
9. This Court considered the contentions raised at
the bar and this Court is of the view that merely because
the execution proceeding is closed in view of the payment
made by the respondents it does not mean that the appeal
filed by the present appellants seeking enhancement does
not survive for consideration. Since the appeal is pending
seeking enhancement in the Appellate Court, the Appellate
Court is enabled to consider the appeal on merits.
Accordingly, on considering the merits, this Court is of the
view that the decree passed by the Final Decree Court
awarding Rs.300/- per acre per annum is not adequate
profit in respect of the lands where the evidence would
reveal that groundnut and chilly are grown.
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RFA No. 1578 of 2007
10. Accordingly, the appeal is allowed. The
appellants are entitled to enhanced profit at the rate of
Rs.200/- per acre per annum from 07.01.1985 to
28.08.1994. The amount shall carry interest at 6% p.a.
from the date of petition in FDP No.02/1996 till the date of
payment.
11. The respondents shall pay the said amount
within three months from this date.
Sd/-
JUDGE
VMB UPTO PARA 5,
