Karnataka High Court
T. S. Sathyanarayana vs T. R. Kamala on 25 July, 2023
Bench: H.P.Sandesh
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MSA No. 59 of 2022
C/W MSA No. 58 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS SECOND APPEAL NO.59 OF 2022
C/W
MISCELLANEOUS SECOND APPEAL NO.58 OF 2022
IN MSA No.59/2022
BETWEEN:
T. S. SATHYANARAYANA
S/O. LATE SIDDARAJU,
AGED ABOUT 65 YEARS,
R/AT NO. 3042,
18TH CROSS,
HEBBAL I STAGE,
Digitally signed
by SHARANYA T MYSORE-18.
Location: HIGH ...APPELLANT
COURT OF
KARNATAKA (BY SRI KARUMBAIAH T.A, ADVOCATE)
AND:
1. T. R. KAMALA
W/O. T. R. RAMAMURTHY,
AGED ABOUT 80 YEARS,
2. T. R. YOGINI
D/O. LATE T. R. RAMAMURTHY,
AGED ABOUT 58 YEARS,
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3. T. R. VINODHA
D/O. LATE T. R. RAMAMURTHY,
AGED ABOUT 57 YEARS,
W/O. T. N. DINESH,
SHREE NILAYA,
BEHIND BASAVESHWARA SCHOOL,
MUNICIPAL LAYOUT,
SIDDAGANGA EXTENSION,
TUMKUR-572 102.
4. T. R. VISHWANATH
S/O. LATE T. R. RAMAMURTHY,
AGED ABOUT 55 YEARS,
5. T. R. GIRISH
S/O. LATE T. R. RAMAMURTHY,
AGED ABOUT 53 YEARS,
6. C. S. VEENA
W/O. LATE RAVI,
AGED ABOUT 45 YEARS,
7. T. R. KARTHIK
S/O. LATE T. R. RAVI,
AGED ABOUT 12 YEARS,
8. T. R. KRITHIKA
D/O. LATE T. R. RAVI,
AGED ABOUT 8 YEARS,
RESPONDENTS 7 & 8 ARE MINORS
REP. BY THEIR MOTHER AND NATURAL
GUARDIAN - C.S. VEENA,
W/O. LATE T. R. RAVI,
RESPONDENTS 1, 2, 4 TO 8 ARE
R/AT RIFLE RANGE,
NEAR DAR QUARTERS,
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MADIKERI,
KODAGU-571 201.
9. T. R. THYAGARAJ
S/O. UMAVATHI,
AGED ABOUT 45 YEARS,
R/AT NO. 3042,
18TH CROSS,
HEBBAL I STAGE,
MYSORE-570 018.
...RESPONDENTS
(R1 TO R6 ARE SERVED;
R7 & R8 ARE MINORS, REP. BY R6;
V/O DT.30.01.2023, NOTICE TO R9 IS D/W)
THIS MSA IS FILED UNDER SECTION 104 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 23.02.2022
PASSED IN RA.NO.14/2020 ON THE FILE OF THE SENIOR
CIVIL JUDGE, MADIKGERI AND ETC.
IN MSA No.58/2022
BETWEEN:
T.S. SATHYANARAYANA
S/O LATE SIDDARAJU,
AGED 65 YEARS,
R/AT NO.3042, 18TH CROSS,
HEBBAL I STAGE,
MYSORE 18.
...APPELLANT
(BY SRI KARUMBAIAH T.A, ADVOCATE)
AND:
1. T R LEELAVATHI
W/O.LATE T.R.THIMMARAJU,
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70 YEARS,
R/AT CONVENT JUNCTION
MADIKERI, KODAGU 571201.
2. T T DINESH
S/O.LATE T.R.THIMMARAJU,
AGED 55 YEARS,
RESIDENT OF CONVENT JUNCTION,
MADIKERI, KODAGU 571201.
3. T T VEENA
W/O T.V. THIMMARAJU,
D/O.T.R.THIMMARAJU,
AGED 46 YEARS,
D/O.LATE T.R.THIMMARAJU,
R/AT 574/33, 4TH CROSS,
MAHALAKSHMI LAYOUT,
BANGALORE-560012.
4. T T VIDYA
W/O.LATE ARUNKUMAR,
D/O.T.R.THIMMARAJU,
AGED 44 YEARS,
D/O.LATE T.R.THIMMARAJU,
R/O.GOWLI STREET,
MADIKERI, KODAGU 571201.
5. T T LOKESH
S/O.LATE T.R. THIMMARAJU,
AGED 42 YEARS,
R/AT CONVENT JUNCTION
MADIKERI, KODAGU 571201.
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6. T T RAKESH
S/O LATE T.R.THIMMARAJU,
AGED 37 YEARS,
R/AT CONVENT JUNCTION
MADIKERI, KODAGU 571201.
7. T R KALPANA
D/O UMA, MAJOR,
C/O.HEMALAKSHMI
D.NO.2485, 5TH CROSS,
K.G.KOPPAL, MYSORE 570009.
8. T R THYGARAJ
S/O UMA, MAJOR,
C/O.HEMALAKSHMI
D.NO.2485, 5TH CROSS,
K.G.KOPPAL,
MYSORE-570009.
9. T N VIJAYALAKSHMI
W/O.JAYANTH,
D/O LATE UMAVATHI,
AGED 38 YEARS,
D.NO.2485, 5TH CROSS,
K.G.KOPPAL, MYSORE 570009.
10. KAMALAKSHI
W/O.LATE T.R.RAMAMURTHY,
AGED 70 YEARS,
RESIDING NEAR DAR QUARTERS,
MADIKERI, KODAGU 571201.
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11. T R VISHWANATH
AGED 48 YEARS,
S/O.LATE T.R.RAMAMURTHY,
RESIDING NEAR DAR QUARTERS,
MADIKERI, KODAGU-571201.
12. YOGINI
AGED 52 YEARS,
D/O.LATE T.R.RAMAMURTHY,
RESIDING NEAR DAR QUARTERS,
MADIKERI, KODAGU-571201.
13. VINODHA
AGED 50 YEARS,
D/O LATE T.R.RAMAMURTHY,
W/O.DINESH R,
R/O SRI.CYCLE MART,
MAIN ROAD,
TUMKUR-572102
14. VEENA
AGED 47 YEARS,
W/O.LATE RAVI,
R/O NEAR RIFLE RANGE,
MADIKERI, KODAGU-571201.
15. MASTER KARTHIK
AGED 13 YEARS,
S/O LATE RAVI,
16. KUMRI KARTHIKA
AGED ABOUT 6 YEARS,
D/O LATE RAVI,
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RESPONDENTS 15 AND 16 ARE MINORS
R/O NEAR RIFLE RANGE MADIKERI,
KODAGU 571201.
REP BY R-14, MOTHER
17. GIRISH
AGED 46 YEARS,
S/O.LATE T.R.RAMAMURTHY,
RESIDING AT NEAR DAR QUARTERS,
MADIKERI, KODAGU 571201.
18. LEELAVATHI
W/O.M. NAGAPPA SHETTY,
AGED 72 YEARS,
C/O MANUKLA SRINVIA,
'SHAKTHI', NO.17/2,3RD MAIN
S.K.GARDEN, BENSON TOWN,
BANGALORE-560046.
NOW R/AT C/O B C NAGAPPA
CHITTARANJAN ESTATE
MUDIGERE POST
CHIKAMAGALURU DISTRICT
...RESPONDENTS
(R1, R10 TO 13, R17 ARE SERVED;
R15 AND R16 ARE MINORS, REP. BY R14;
V/O DT.13.01.2023, NOTICE TO R7 TO R9, R18 IS D/W)
THIS MSA IS FILED UNDER SECTION 104 OF CPC.,
AGAINST THE JUDGMENT DATED 23.02.2022 PASSED IN
RA.NO.24/2020 ON THE FILE OF THE SENIOR CIVIL
JUDGE, MADIKGERI AND ETC.
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THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
ORDER
Heard the learned counsel appearing for the
respective appellants in both the appeals.
2. These two appeals are filed before this Court
challenging the order passed in R.A.Nos.14/2020 and
24/2020 wherein the Appellate Court set aside the order
passed in FDP No.3/2010 on 03.04.2019 and the matter is
remitted back to the Trial Court for fresh disposal in
coming to the conclusion that the survey sketch and the
report submitted by the Court Commissioner appears that
he had measured Sy.No.1/2, 1/11, 1/22, 1/2c and 1/11b
and marked 1/5th share in the pink colour. It is also
mentioned in the report that Sy.No.1/2 is totally
measuring 14.64 acres but as per the Akarband,
Sy.No.1/22 is measuring 6.8 acres and Sy.No.1/2c is
measuring 7.84 acres but it totally measuring 14.64 acres.
Therefore, he has reported that said two properties are
same as Sy.No.1/2 measuring 14.64 acres and further
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reported that Sy.No.1/11b, 1/22, 1/2c are totally
measuring 21.14 acres and out of the said three times, he
has demarcated 1/5th share i.e., in Sy.No.1/11b - 1.30
acres, in Sy.No.1/22 - 1.36 acres and in Sy.No. 1/2c -
1.57 acres, in totally 4.23 acres was marked in pink colour
towards 1/5th share. but as per the decree, the plaintiffs
are entitled for 1/5th share in 'B' schedule property.
Admittedly, 'B' schedule property is Sy.No.1/22 - 6.80
acres, Sy.No.1/2c - 7.84 acres and 1/11b - 2.27 acres
and in these items, 1/5th share will have to be
demarcated. The counsel submits that the Trial Court
without verifying the difference, committed mistake by
accepting the commissioner report and accordingly,
passed the final decree and also marked the
commissioner's report and sketch as part and parcel of the
decree.
3. The other ground for filing the appeal is that the
Trial Court has committed the mistake that without
passing an order on I.A. which is filed for impleading the
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legal representatives of Ramamurthy and Thimmaraju, the
final decree was passed and hence, the said judgment
needs to be set aside. The other reason given by the Trial
Court that the advocate for the appellants has produced
the certified copy of the village map and endorsement
given by the survey department contending that Sy.No.
1/11 and 1/2 are not existing in Akarband and sketch but
there is no decree in respect of 'A' schedule property in
favour of the plaintiff in the original proceedings and
hence, the production of said additional documents is not
required and there are no sufficient ground to mark those
documents as additional evidence.
4. The very contention of the counsel appearing
for the appellants before this Court is that the very
observation made by the Trial Court is erroneous and
Sy.Nos.1/2 and 1/11 were not included while allotting the
share and only in Sy.Nos.1/11b, 1/22, 1/2c, the property
was allotted in favour of the appellants and the very
approach of the Trial Court is erroneous.
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5. Having perused the sketch that is prepared by
the commissioner which is placed before this Court as
directed no doubt, there is a reference in paragraph 1 with
regard to surveying of the survey numbers but only
demarcation was made in the sketch in respect of
Sy.Nos.1/11b, 1/22 and also 1/2c and not in respect of
Sy.Nos.1/2 and 1/11 and hence, it appears that the
Appellate Court carried away with the mentioning made in
the survey sketch that is in Point No.1, but 1/5th share of
property was allotted by marking the same is in pink
colour in respect of Sy.No.1/11b to the extent of 1.30
acres, in Sy.No.1/22 - 1.36 acres, in Sy.No.1/2c - 1.57
acres in terms of the decree and hence, the Trial Court
having considered the commissioner report, accepted the
same in FDP and made the same as part and parcel of the
decree and the very observation made by the Trial Court
in R.A.Nos.14/2020 and 24/2020 is erroneous.
6. It has brought to notice of this Court by the
counsel for the appellants that an application was filed to
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implead the legal representatives of Ramamurthy and
Thimmaraju and the said application is not considered in
the final decree proceedings. When such being the case,
their interest is not affected and the said reason also given
by the Appellate Court while setting aside the order. Even
if they are not impleaded and the demarcation of share is
only in respect of 1/5th share, the legal representatives of
Ramamurthy and Thimmaraju who represents their share
will not affected and hence, it does not requires any
interference in the order passed by the Appellate Court in
setting aside the order of final decree proceedings. Hence,
the very approach of the Appellate Court in allowing the
appeal and setting aside the order in FDP No.3/2010 is
erroneous. Thus, and no need to even remand the matter
since the final decree proceeding is drawn in terms of the
preliminary decree and not committed any error. Hence,
the order impugned is requires to be set aside.
7. In view of the discussions made above, I pass
the following:
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ORDER
The miscellaneous second appeals are allowed. The
impugned order dated 23.02.2022 passed by the Appellate
Court in R.A.Nos.14/2020 and 24/2020 are hereby set
aside and the order of the Trial Court dated 03.04.2019
passed in FDP No.3/2010 is confirmed.
Sd/-
JUDGE
SN
