Karnataka High Court
Smt Puttamma vs Kempamma Dead By Lrs Prakash on 8 December, 2023
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RSA No. 417 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 417 OF 2023 (PAR)
BETWEEN:
1. SMT. PUTTAMMA,
W/O LINGAPPA,
AGED ABOUT 81 YEARS,
R/AT KAREHALLY, NITTUR HOBLI,
GUBBI TALUK - 572 223,
TUMKUR DISTRICT.
2. SRI. KARIYAPPA @ NARASIMHAMURTHY,
S/O LINGAPPA,
AGED ABOUT 62 YEARS,
R/AT KAREHALLY, NITTUR HOBLI,
GUBBI TALUK - 572 223,
TUMKUR DISTRICT.
Digitally signed
by SUCHITRA 3. SMT. MAHADEVAMMA,
MJ
Location: HIGH
W/O SRI. NANJUNDAPPA,
COURT OF AGED ABOUT 60 YEARS,
KARNATAKA
R/AT KURABARAHALLY KOPPA,
TURUVEKERE TALUK - 572 227,
TUMKUR DISTRICT.
4. SMT. RATHNAMMA,
W/O SRI. RAMESH,
AGED ABOUT 45 YEARS,
R/AT KATHRIKEHAL, KANDIKERE HOBLI,
C.N. HALLY TALUK - 572 214,
TUMKUR DISTRICT.
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RSA No. 417 of 2023
5. SMT. NAGAMMA,
W/O RAMALINGAIAH,
AGED ABOUT 43 YEARS,
R/AT NAYAKARAKOPPALU, BELLUR HOBLI,
NAGAMANGALA TALUK - 571 432,
MANDYA DISTRICT.
6. SMT. BHAGYAMMA,
W/O SRI. MAHESH,
AGED ABOUT 41 YEARS,
R/AT SALANAKATTE, KANDIKERE HOBLI,
C.N. HALLI TALUK - 572 228,
TUMKUR DISTRICT.
7. SMT. KAVITHA,
W/O KANTHARAJU,
AGED ABOUT 38 YEARS,
R/AT PURADAHALLY, JAVAGAL HOBLI,
ARASIKERE TALUK - 573 125,
HASSAN DISTRICT.
...APPELLANTS
(BY SRI. MANJUNATH PRASAD V, ADVOCATE)
AND:
KEMPAMMA,
DEAD BY LRS
1. PRAKASH,
S/O LATE KALAPPA,
AGED ABOUT 46 YEARS,
2. PARAMESH,
S/O LATE KALAPPA,
AGED ABOUT 32 YEARS,
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RSA No. 417 of 2023
THE RESPONDENT NO.1 AND 2 ARE
R/AT LINGAMMANAHALLY PALYA,
KADABA HOBLI, GUBBI TALUK - 57 219,
TUMKUR DISTRICT.
3. KALAVATHI,
D/O LATE KALAPPA,
AGED ABOUT 41 YEARS,
R/AT CHINIGA, KORA HOBLI,
KORATAGERE TALUK 572 129,
TUMKUR DISTRICT.
4. SMT. SHIVAMMA,
W/O SHIVAKUMAR,
D/O LATE KALAPPA,
AGED ABOUT 39 YEARS,
R/AT NAGAVALLI, HEBBUR HOBLI,
TUMAKURU TALUK - 572 118,
TUMKUR DISTRICT.
5. SRI. KEMPANNA,
S/O LINGAPPA,
AGED ABOUT 47 YEARS,
R/AT KAREHALLY,
GUBBI TALUK - 572 223,
TUMKUR DISTRICT.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 01.12.2022
PASSED IN RA.No.51/2021 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, GUBBI, DISMISSING THE APPEAL AND
CONFIRMING THE ORDER DATED 18.08.2021 PASSED IN FDP
No.16/2012 ON THE FILE OF THE C/c PRINCIPAL CIVIL JUDGE
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RSA No. 417 of 2023
AND JMFC, GUBBI, ALLOWING THE FINAL DECREE
PROCEEDINGS FILED UNDER SEC.54 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the
unsuccessful defendants who have questioned the final
decree drawn in FDP.No.16/2012 in the judgment
rendered by the Appellate Court in R.A.No.51/2021.
2. For the sake of brevity, the rank of the parties
are referred as they are ranked before the Trial Court.
3. The respondent/plaintiff has instituted a suit in
O.S.No.222/2006 seeking relief of partition and separate
possession of their half share in the properties. The
defendants/appellants failed to contest the proceedings
and the suit was decreed, granting half share to the
plaintiff. Based on the preliminary decree drawn in
O.S.No.222/2006, respondent/plaintiff initiated final
decree proceedings in FDP.No.16/2012.
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4. The Trial Court appointed the court
commissioner to submit a feasibility report. The
Appellants/defendants have not contested the
commissioner's report, wherein a feasibility report is
submitted by the court commissioner having measured all
the lands. On the contrary, the present appellants resisted
the final decree proceedings by contending that a
miscellaneous petition filed by them seeking an exparte
decree is pending consideration. The final decree court,
referring to the feasibility report submitted by the taluk
surveyor, allotted block-I to respondent/plaintiff and
block-II to the present appellants and accordingly, allowed
the petition by drawing a final decree.
5. The appellants/defendants aggrieved by the
decree drawn in FDP.No.16/2012, preferred an appeal by
contending that the surveyor has not properly executed
the commission work and his feasibility report does not
depict the existence of trees on the land. The Appellate
Court, while examining the final decree drawn by the Trial
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Court and the commissioner's report, was not inclined to
accept the grounds urged in the appeal memo. The
Appellate Court held that, regarding the trees situated in
the suit lands, defendants ought to have filed objections
and questioned the commissioner's report. The Appellate
Court held that though sufficient opportunities were given
to the appellants herein to file objections, the said
opportunities were not availed by them. It is in this
background, the Appellate Court was not inclined to
interfere with the final decree drawn by the final decree
court.
6. Heard learned counsel appearing for the
appellants. Perused the judgment rendered by the Courts
below.
7. On examining the material on record, this Court
would find that there is total laxness on the part of the
appellants/defendants. The appellants herein have failed
to contest the partition suit filed in O.S.No.222/2006.
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Though the court has passed an exparte decree, the same
is not set aside. Even in final decree proceedings, the
appellants have not chosen to contest proceedings by
filing objections to the main petition. The appellants have
also not contested the commissioner's report. If no
objections are filed to the commissioner's report, it is well
within the jurisdiction of the final decree court to examine
the feasibility report and pass appropriate orders. The
contention of learned counsel for the appellants that the
court has no discretion/jurisdiction to allot any particular
property to any party cannot be exceeded too. The final
decree court, on receipt of the feasibility report submitted
by the commissioner, can examine the equities and pass
orders. Section 54 of the CPC, in view of the amendment,
has vested jurisdiction to the courts. Unlike under the
unamended Section 54, pursuant to the passing of a
preliminary decree, the court had no jurisdiction and could
only exercise administrative power to remit the records to
the deputy commissioner to effect partition by metes and
bounds and hand over possession. In view of the
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amendment to Section 54, the entire dispute/controversy
relating to the feasibility report effecting partition by
metes and bounds needs to be examined by the final
decree courts. If no objections are filed and if there is no
serious contest to the commissioner's report, it is well
within the jurisdiction of the final decree court to accept
the commissioner's report and allot shares. Therefore, I do
not find any serious infraction in the procedure adopted by
the final decree court. Even if there is some error, that
error cannot be examined in the captioned appeal unless
substantial question of law arises for consideration that
needs adjudication at the hands of this Court. Bearing in
mind the conduct of the appellants, who have neither
chosen to contest the proceedings nor contested the
commissioner's report, I am not inclined to grant any
indulgence under Section 100 of CPC. The grounds urged
in the captioned appeal cannot be entertained and such a
recourse is not permissible under Section 100 of CPC.
Therefore, no substantial question of law would arise for
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consideration. Accordingly, captioned second appeal
stands dismissed.
In view of dismissal of second appeal, all pending
applications, if any, do not survive for consideration and
stand disposed of.
Sd/-
JUDGE
HDK
CT: BHK
