Karnataka High Court
Sri Seetharama Shetty vs Smt Lakshmi on 12 July, 2023
Bench: Jyoti Mulimani
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NC: 2023:KHC:24137
RSA No. 1178 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.1178 OF 2016 (PAR)
BETWEEN:
SRI. SEETHARAMA SHETTY
AGED ABOUT 58 YEARS,
S/O LATE SRI. KITTANNA SHETTY,
KOLAKEBAIL,
MANJANADY VILLAGE,
MANGALURU TALUK, D.K - 575 001.
...APPELLANT
(BY SRI. K.CHANDRANATH ARIGA., ADVOCATE)
AND:
SMT. LAKSHMI
AGED ABOUT 59 YEARS,
W/O LATE SRI. ANANDA,
Digitally signed by SHANKAR NIVAS,
THEJASKUMAR N VIJAYANAGAR ANNEXE,
Location: HIGH
COURT OF KODIKAL,
KARNATAKA
POST: ASHOK NAGAR,
MANGALURU, D.K - 574 007.
...RESPONDENT
(BY SRI. G.BALAKRISHNA SHASTRY., ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC., SEEKING CERTAIN RELIEFS.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:24137
RSA No. 1178 of 2016
JUDGMENT
Sri.K.Chandranath Ariga., learned counsel for appellant
and Sri.G.Balakrishna Shastry., learned counsel for respondent
have appeared in person.
2. This is an appeal from the Court of Principal Senior
Civil Judge & CJM, Mangaluru, D.K.
3. The suit was filed in O.S.No.166/2012 for the relief
of Partition. The suit came to be decreed on 21.01.2012 and it
was declared that the petitioner/ appellant is entitled for half
share in the suit schedule properties and also half share in the
mesne profits derived out of the improvements in the schedule
"A" properties. A preliminary Decree was drawn. The
respondent initiated Final Decree Proceedings in No.22/2013 on
the file of Prl. Civil Judge & JMFC, Mangaluru, D.K. The FDP
No.22/2013 came to be allowed vide order dated:18.11.2015.
Aggrieved by the order passed in the Final Decree Proceedings,
the appellant preferred an appeal in R.A.No.5/2016 on the file
of Principal Senior Civil Judge & CJM, Mangaluru, D.K. On
appeal, the First Appellate Court dismissed the appeal and
confirmed the order passed in the Final Decree Proceedings.
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RSA No. 1178 of 2016
Hence, this Regular Second Appeal is filed under Section 100 of
CPC.
4. Sri.K.Chandranath Ariga., learned counsel for
appellant submits that the Order passed in the FDP and the
Judgment & Decree passed by the First Appellate Court are
perverse and unsustainable.
Next, he submits that the Decree for partition based on
Commissioner Report is perverse and impracticable division.
A further submission is made that both Courts have not
considered the objection by appellant in regard to the
impracticable division proposed by the Court Commissioner.
Sri.Chandranath Ariga., learned counsel vehemently
contended that there is only one pond. The right to draw water
from the pond to both the parties is contentious issue and it will
give scope for further litigation between the parties.
He also submitted that both Courts have not bestowed its
attention to the topography of the area and the way leading to
the property of the appellant & the respondent.
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RSA No. 1178 of 2016
Lastly, he submits that viewed from any angle, the Order
passed in FDP and Judgment & Decree of First Appellate Court
are unsustainable. Hence, this Regular Second Appeal may be
admitted by framing substantial questions of law.
5. Sri.G.Balakrishna Shastry., learned counsel for
respondent justified the order passed in Final Decree
Proceedings and the Judgment & Decree of the First Appellate
Court. Learned counsel has urged several contentions and
lastly, he submits that the appeal does not raise any substantial
questions. Hence, the same may be dismissed at the stage of
admission itself.
6. Heard, the contentions urged on behalf of the
respective parties and perused the order passed in Final Decree
Proceedings and the Judgment & Decree of the First Appellate
Court with utmost care.
The principal ground on which this Court is asked to
frame the question of law is that there is only one pond and
right to draw water from the pond to both the parties is
contentious.
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RSA No. 1178 of 2016
Learned counsel Sri.K.Chandranath Ariga., in presenting
his argument vehemently contended that the Commissioner's
Report is not based upon the topography of the area. He also
argued by saying that both Courts have not bestowed its
attention to the Well situated in the property.
In reply, learned counsel Sri.G.Balakrishna Shastry.,
argued that the First Appellate Court in extenso referred to the
contentions urged on behalf of the parties and concluded that
the Well water can be used by both the parties very
conveniently and the parties cannot have any objections to the
Commissioner's report.
I find considerable force in the argument of learned
counsel for respondent. I have also perused the Judgment of
the First Appellate Court. In paragraph No.15 of the Judgment,
the First Appellate Judge has referred to the contentions urged
on behalf of the respective parties, in particular to the
Commissioner Report and has concluded that though there is
one pond situated, however the same can be made use of by
the parties conveniently. Suffice it to note that there is a path
way to reach the Well, hence, there cannot be any objection
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RSA No. 1178 of 2016
and find fault with the Commissioner's report and compel this
Court to intervene in the order passed in the Final Decree
Proceedings and also in the Regular Appeal.
7. I find no grounds to interfere with the findings
recorded in Final Decree Proceedings and also the Judgment &
Decree of the First Appellate Court in the Regular Appeal.
8. No substantial questions of law raises for
consideration. Accordingly, the Regular Second Appeal is
dismissed at the stage of admission itself.
Sd/-
JUDGE
TKN
