Karnataka High Court
Late Sri Sampath vs Smt D P Prabhavathi on 4 December, 2023
Author: V Srishananda
Bench: V Srishananda
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RFA No. 390 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 390 OF 2008 (PAR)
BETWEEN:
1. LATE SRI. SAMPATH,
BY HIS LRS
1(A). SMT. SUVARNA P,
W/O. LATE SAMPATH M.P,
R/AT NO. 4320, G.M. STREET,
CHINNASWAMY NILAYA,
PETE BIDI MALAVALLI TOWN, MALAVALLI,
MANDYA - 571 430.
1(B). DR. USHA NANDINI S,
D/O. LATE SAMPATH M. P,
R/AT NO. 4320, G.M. STREET,
CHINNASWAMY NILAYA,
Digitally
signed by R PETE BIDI MALAVALLI TOWN, MALAVALLI,
MANJUNATHA
Location: MANDYA - 571 430.
HIGH COURT
OF
KARNATAKA
1(C). SRI. CHANDAN M. S,
S/O. LATE SAMPATH M.P,
R/AT NO. 4320, G.M. STREET,
CHINNASWAMY NILAYA,
PETE BIDI MALAVALLI TOWN, MALAVALLI,
MANDYA - 571 430.
1(D). SMT. SHALINI M. S,
D/O. LATE SAMPATH M. P,
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RFA No. 390 of 2008
R/AT NO. 4320, G.M. STREET,
CHINNASWAMY NILAYA,
PETE BIDI MALAVALLI TOWN, MALAVALLI,
MANDYA - 571 430.
1(E). SRI. M. S. VINAY KUMAR,
S/O. LATE SAMPATH M. P,
R/AT NO. 4320, G.M. STREET,
CHINNASWAMY NILAYA,
PETE BIDI MALAVALLI TOWN, MALAVALLI,
MANDYA - 571 430.
2. SRI. CHINNASWAMY,
S/O. LATE SRI. PUTTAMADDAPPA,
AGED 39 YEARS.
3. SRI. M. P. NAGESH,
S/O. LATE SRI. PUTTAMADDAPPA,
AGED 35 YEARS.
4. SRI. SURESH,
S/O. LATE SRI. PUTTAMADDAPPA,
AGED 31 YEARS.
5. SMT. RADHA,
W/O. CHIKKASWAMY,
AGED 42 YEARS.
6. SMT. JAYALAKSHMI,
W/O. SUBBAIAH,
D/O. LATE SRI. PUTTAMADDAPPA,
AGED 25 YEARS.
7. SMT. ANITHA,
D/O. LATE PUTTAMADDAPPA,
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RFA No. 390 of 2008
AGED 25 YEARS,
ALL ARE R/AT CHINNASWAMY NILAYA, G. II ROAD,
MALAVALLI TOWN, MANDYA DISTRICT,
MANDYA.
...APPELLANTS
(BY SRI. N. VINAYAK KAMATH, ADVOCATE FOR APPELLANT
AND ALSO FOR P'SD LRS OF DECEASED A1)
AND:
1. SMT. D. P. PRABHAVATHI,
W/O. LATE M. P. KRISHNA,
AGED 35 YEARS.
2. SMT. RADIKA,
D/O. LATE M. P. KRISHNA.
3. SRI. RAGHAVENDRA MAJOR,
S/O. LATE M. P. KRISHNA MAJOR,
SINCE DEAD BY HIS LRS.
4. SMT. RAMYA,
D/O. LATE M. P. KRISHNA,
ALL ARE R/AT NO. 3580, 6TH CROSS,
TILAK NAGAR, MANDI MOHALLA,
MYSORE.
...RESPONDENTS
(BY SRI. SHANTKUMAR ADVOCATE FOR,
SRI. H. M. MANJESH ADVOCATE FOR R1(P/H),
SRI. K. L. SREENIVAS ADVOCATE FOR R2 AND R4,
R3 - DEAD, R1, R2 AND R4 ARE TREATED AS LRS OF
DECEASED R3)
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RFA No. 390 of 2008
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGMENT AND ORDER DATED 30.11.2007 PASSED IN FDP.
NO. 9/2006 ON THE FILE OF THE CIVIL JUDGE (SR. DN.) AND
JMFC., MALAVALLI, ALLOWING THE PETITION FOR EFFECTING
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri.N.Vinayak Kamath, learned counsel for the
appellants and Sri.Shantkumar, learned counsel for
respondent No.1.
2. Present appeal is directed against the order
passed by learned Civil Judge (Senior Division) and JMFC,
Malavalli, Mandya district, in FDP No.09/2006 dated
30.11.2007.
3. Brief facts of the case which are utmost
necessary for disposal of the appeal are as under:
Final decree proceedings in FDP No.09/2006 was filed
for division of the properties by meats and bounds
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belonging to the parties in pursuance of the decree passed
in O.S.No.40/1992 which has been confirmed in RFA
No.778/1996.
4. As per the order passed by this Court in RFA
No.778/1996, the decree that has been passed by the trial
Court in granting the share of 19/63rd in favour of the
plaintiffs has been modified to 4/45th share in item No.1 of
'B' schedule property. Thereafter, the petitioners filed
final decree proceedings. During the course of final decree
proceedings, Assistant Executive Engineer, Public Works
Department has been appointed as Court Commissioner to
divide the properties equitably.
5. Accordingly, after giving notice to the parties,
Court Commissioner visited the suit schedule properties
and drew the sketches vide Ex.C.1 to C.6 in respect of the
properties.
6. The petitioners were not satisfied with the
proposed allotment made by Court Commissioner and
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therefore, they filed objections. Petitioner No.1 got herself
examined as P.W.1 and raised objections with regard to
allotment of the suit properties as per the sketches.
However, during the course of cross-examination, certain
admissions were obtained and thereafter, learned Trial
Judge as per the arguments put forth on behalf of the
petitioners, the proposal made by Court commissioner vide
Ex.C.1, C.2, C.5 and C.6 were allotted to the parties.
However, with regard to item No.1 of 'A' schedule
property, Commissioner proposed that house situated
towards South-east corner being the residential house,
which is in occupation of respondents and also taking note
that strained relationship among the parties, found it
suitable that petitioners be allotted with the house situated
at South-East corner as per Ex.C.3.
7. Learned Trial Judge also directed that house is
in dilapidated condition, respondents were directed to
repair the same and well furnish the same as agreed by
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them and directed that the said house at South East
corner be allotted to the petitioners.
8. In so far as, item No.5 of 'A' schedule property
is concerned, Commissioner proposed that property be
allotted to the petitioners on North-West corner.
9. It is also opined by the Commissioner that it is
a small bit and it is of no help to both the parties if divided
as proposed. Therefore, instead of allotting any share in
item Nos.5 and 7 of 'A' schedule property, petitioners were
allotted the vacant site lying towards the North of the
house and allotted the share to the petitioners in item
No.1. Same was accepted by trial Judge suitable orders
was passed.
10. Operative portion of the order in final decree
proceedings reads as under:
"The petition filed by the petitioners is allowed and
their together share of 4/45th is allotted as follows;
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'A' SCHDEULE
1. In item No.1 of 'A' schedule the petitioners are
allotted house situated towards southeast corner.
The respondents shall get it repaired and well
furnished.
2. In item No.2, 3, 4 and 6 the petitioners are
allotted their share as proposed in Ex.C2, Ex.C1,
Ex.C5 and Ex.C6 respectively.
3. With regard to item No.5 the petitioners are
allotted the entire vacant site lying in between
properties allotted to them in item No.1 and item
No.4.
'B' SCHEDULE
1. The petitioners are allotted the entire extent of
item No.4 of 'B' schedule bearing Sy.No.158/7 of
Amrutheshwaranahalli measuring 1 acre 22 guntas.
2. The respondents are directed to hand over
possession to the petitioners accordingly. The
petitioners are entitled to get their name entered in
the concerned revenue and municipal records as per
share allotted to them in this petition.
3. In case of petitioners intended to sell any of the
properties allotted to their share the respondents
have got right to purchase the same on the market
value prevails on that date.
4. Draw final decree accordingly."
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11. Being aggrieved by the same, defendant Nos.2
to 8 have preferred the present appeal on the following
grounds:
"The appellants submit that the allotment of share
to the respondent in the said F.D.P proceedings so
far it related to item no 5 of the A schedule
property and also with regard to item no 4 of the
B schedule property is unreasonable great
inconvience will be caused to the appellants who
are entitled to 41/45th share in the property.
In so far as it relates to item no 1 of the A
schedule property is concern the said order made
be modified as the order of the court below is not
clear the same may lead to further difference
between the parties, the submission made by the
appellants before the court is the appellants would
repair the house which is order by the court
below.
With regard to item no 5 of the A schedule
property the court below allotting the vacant site
lying in between the property in the property
allotted to them in item no 4 and item no 4 it is
submitted that the same is unreasonable is as
much as the appellants will be deprived the use of
the eastern side entrance for the other houses in
the north west and the south west side which will
make the appellant using of the these house
properly and also keeping of their carts vehicles
and keeping the said area to dry their crops in the
eastern side of the site. It is submitted and
prayed that the allotment of the entire side is
liable to be set aside as the same is unreasonable
and improper
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Regarding to allotment in the B schedule property
when the respondent are entitled to 4/45th share
allotting the entire extent of item no 4 of the B
schedule property it is submitted and prayed that
This allotment of the entire area which is bounded
to the channel towards the east and item no 4,
the appellants will be deprived and the same will
cut of the supply of water to the other lands of
the eastern side. Item No 1 which measurers 7
acres will be upto to serious shortage of water
from the eastern side Court below ought to have
considered that the said allotment should have
been allotted in all the other lands the same could
be allotted in item no 6 which is also towards the
eastern side and there is also there is water
supply to the said land as the said land is
separate and the same could be allotted to the
respondent exclusive to the respondent herein
It is submitted that the said allotment in the item
no 4 in the B schedule property would block the
entire land to item no 2, 3, 5 instead of giving the
portion of the land exclusive to the respondent
the same could be given in the Item no 6 of the B
schedule property which is towards the eastern
side. The court below not considering the same is
bad in law as the same has effect the other land
belonging to the appellants herein."
12. Reiterating the grounds urged in the appeal
memorandum, Sri.N.Vinayak Kamath, learned counsel for
the appellants vehemently contended that the proposed
allotment made by Court Commissioner has resulted in
denying the access to the Saw Mill which is in the
occupation of appellant No.2.
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13. He further contended that objections have not
been properly considered by the trial Court while passing
final decree proceedings resulting in miscarriage of justice
and sought for allowing the appeal.
14. Per contra, Sri.Shantkumar, learned counsel for
contesting respondent No.1 contended that petitioners are
prepared to sell the portion to the appellants that has
been allotted to them as per the market value and
appellants are at liberty to purchase the entire property of
the petitioners by paying the market value and whereby,
the ends of justice would be met.
15. He also contended that Commissioner's report
is produced before the Court and defendants did not chose
to lead any evidence expressing their difficulty in the
sharing pattern as is suggested by court commissioner.
As such, it is too late for the appellants to now urge before
this Court that the division of properties proposed by the
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Commissioner is incorrect and sought for dismissal of the
appeal.
16. In view of the rival contentions of the parties,
this Court perused the material on record meticulously.
On such perusal of the material on record, following points
would arise for consideration:
1. Whether the appellants make out a case that
allotment of the share to petitioners in item
No.3 of 'A' schedule property is inequitable
and has caused hardship for the appellants?
2. Whether the impugned order to that extent is
suffering from legal infirmity or perversity and
thus calls for interference of this Court?
3. What order?
REGARDING POINT NOS.1 AND 2:
17. In the case on hand, admittedly the share of
the petitioners has been modified by this Court in RFA
No.778/1996 in respect of item No.1 of 'B' schedule
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property and rest of the decree passed by learned Trial
Judge in O.S.No.40/1992 was confirmed.
18. When the appellants failed to divide the
properties as per the judgment, the petitioners were
constrained to file FDP No.09/2006.
19. The said petition was contested by the
appellants herein by filing the written objections.
20. Thereafter, learned Trial Judge appointed
Assistant Executive Engineer, Public Works Department as
Court Commissioner for appropriate division of the
properties.
21. In the presence of the parties, Commissioner
visited the schedule properties and drew the sketches vide
Ex.C.1 to C.6.
22. However, the petitioners were not satisfied with
the division made by the Commissioner and therefore, she
filed objections and also lead evidence. Petitioner No.1
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has been examined as P.W.1 and she has deposed before
the Court as to the inequitable partition proposed by the
Court Commissioner.
23. She has been cross examined by the contesting
respondents before the final decree proceedings and
necessary admissions have been obtained. While so cross
examining the P.W.1, no suggestions are made to P.W.1
that the proposed sharing of the property as per
Commissioner's sketch has acted hardship to the
appellants herein.
24. On the other hand, cross-examination would go
to show that the situation of the property with regard to
the petrol bunk and site property measuring 60 ft. x 40 ft.
has been denied by P.W.1.
25. Further, there was no question deposed to
P.W.1 in respect of item No.3 of 'A' schedule property in
the entire cross-examination. For the reasons best known
to the appellants, nobody got examined on behalf of the
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appellants before the Court in final decree proceedings.
Under such circumstances, merely filing objections to final
decree proceedings itself would not be sufficient enough to
turn with the allotment made by learned Trial Judge in the
final decree proceedings in respect of item No.3 of 'A'
schedule property and it has resulted in inequitable
partition.
26. Further, petitioners have made an offer to the
appellants to buy the property that has fallen to their
share by paying the market value. Such an adjustment is
always available for the parties in the execution
proceedings when the properties are to be allotted to the
respective parties as per the final decree proceedings.
27. Taking note of these aspects of the matter and
the grounds urged in the appeal memorandum, this Court
does not find any good grounds in the appeal so as to set
aside the order passed by learned Trial Judge.
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28. Accordingly, point Nos.1 and 2 are answered in
negative.
REGARDING POINT NO.3:
29. In view of the findings of this Court on point
Nos.1 and 2 as above, following:
ORDER
(i) Appeal is meritless and hereby dismissed.
(ii) No order as to costs.
Sd/-
JUDGE
KAV
