Karnataka High Court
Mr. Mahesh Kumar vs Mrs. Ningamma on 27 July, 2023
Bench: S.R.Krishna Kumar
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WP No. 5371 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 5371 OF 2023 (GM-CPC)
BETWEEN:
MR. MAHESH KUMAR,
S/O LATE NANDAKISHORE,
AGED ABOUT 56 YEARS,
R/AT NO.39/1-1, 10TH CROSS,
PIPE LINE ROAD, CHOLURUPALYA
BENGALURU - 575 023.
...PETITIONER
(BY SMT. AKSHATHA SHETTY K., ADVOCATE)
AND:
1. MRS. NINGAMMA,
D/O LATE BASAVALINGAIAH,
W/O LATE KEMPAIAH,
AGED ABOUT 75 YEARS,
R/AT KALLAHALLI VILLAGE,
Digitally signed by
LAKSHMINARAYAN HANAGODU HOBLI,
N
Location: HIGH HUNSUR TALUK - 571 106.
COURT OF
KARNATAKA
2. MRS. A.M. GIRIJMBA,
W/O LATE K.M. CHANNABASAVANNA,
D/O LATE MALLAPPA,
AGED ABOUT 53 YEARS,
R/AT KANNANUR HOBLI,
HULLAHALLI HOBLI,
NANJANAGADU TALUK - 571 314.
3. MR. PUTTAMALLAPPA,
S/O LATE MALLAPPA,
AGED ABOUT 65 YEARS.
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4. MR. NANJAPPA,
S/O LATE MALLAPPA,
AGED ABOUT 60 YEARS.
5. MR. SHIVANNA,
S/O LATE MALLAPPA,
AGED ABOUT 55 YEARS.
6. SMT. PUTTABASAMMA,
D/O LATE MALLAPPA,
AGED ABOUT 76 YEARS,
NO.3 TO 6 ARE
R/AT ANKANAHALLI VILLAGE,
BILIKERE HOBLI,
HUNSUR TALUK - 571 103.
...RESPONDENTS
(BY SRI. B.S. NAGARAJ, ADVOCATE FOR R1 TO R4;
R5 IS SERVED AND UNREPRESENTED)
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASHING THE IMPUGNED
ORDER DATED 30.09.2022, IN FDP NO.8/2017 PASSED BY THE CIVIL
JUDGE AND JMFC AT HUNSUR, MYSURU AND ALLOWING THE IA.
NO.1 ANS APPOINTING THE COURT COMMISSIONER AND DIRECTED
TO FIX THE BOUNDARIES AS PER PRELIMINARY DECREE IN
OS.NO.159/2007 DATED 22.07.2017 VIDE ANNEXURE -A AND ETC.,
THIS W.P., COMING ON FOR ORDERS, THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
This petition by defendant No.6 in F.D.P.No.8/2017 on
the file of the Additional Senior Civil Judge and JMFC, Hunsur is
directed against the impugned order passed on I.A.No.1,
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whereby the said application filed by respondent No.1/plaintiff
under Order XXVI Rule 13 of the Code of Civil Procedure
seeking appointment of a Court Commissioner to effect
partition of the suit schedule properties in terms of the
preliminary decree dated 22.07.2017 passed in
O.S.No.159/2007 was allowed by the Trial Court.
2. The material on record discloses that respondent
No.1/plaintiff instituted a suit in O.S.No.159/2007 against the
petitioner/defendant No.2 and other defendants in relation to
immovable suit schedule properties. In the said suit, there
were six items of immovable property. By the judgment and
decree dated 22.07.2017, the Trial Court decreed the suit,
declaring that the plaintiff was entitled to 1/10th share in the
suit schedule properties and that defendant No.5/Ningamma
was entitled to 1/2 share in the suit schedule properties.
3. Aggrieved by the said judgment and decree, the
parties preferred an appeal in R.A.No.15/2017 and in the said
appeal, the First Appellate Court modified the judgment and
decree passed by the Trial Court in respect of item Nos.1 to 4
and came to the conclusion that the parties are not entitled to
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any share in item Nos.5 and 6 of the suit schedule properties.
While arriving at the said finding, the First Appellate Court held
as under:
"22. Further, the oral evidence of the parties
in relation to the fact that the item No.5 & 6 of the
suit schedule properties are ancestral and joint family
properties of the plaintiff and defendants 1 to 5 is not
corroborated by the documentary evidence. The
Ex.P5 tax paid receipt does not speak about the said
fact. It was issued only for having paid the tax to the
property. Based on oral assertions and admissions
right of the plaintiff and the 5th defendant on the
item No. 5 & 6 of the suit properties cannot be
declared. Therefore, the plaintiff and the 5th
defendant have failed prove the fact that the said
properties are ancestral and joint family properties.
Thus, the findings of the trial court in this regard is
against to the settled principles of law and the parties
will not get share over the said properties. In the
circumstances, the findings of the trial court
regarding alienation of the item No.6 of the suit
properties and its binding nature on the parties is
unwarranted. In view of the above discussions and
findings of this court, all the findings and final
decision of the trial court cannot be termed as
perverse, capricious, illegal and contrary to facts and
law, but the intervention of this court is very much
required in relation to the allotment of share to the
parties. Accordingly, the impugned judgment and
decree needs to be modified. Thus, the point No.1 &
2 are answered in negative and the point No.3 is
answered in affirmative.
23. Point No.4: in view of the above findings, I
proceed to pass the following:
24. The appeal filed under order 41 Rule 1
of CPC is hereby dismissed.
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ORDER
The impugned Judgment and decree dated
22.07.2017 passed in OS.No.159/2007 on the file of
the Civil Judge and JMFC., Hunsur is modified.
The plaintiff is entitled for 1/40th share out of
the half share of her father in the item No. 1 to 4 of
the suit schedule properties by metes and bounds
with separate possession.
The 5th defendant is entitled for 1/2 share in
the item No.1 to 4 of the suit schedule properties by
metes and bounds with separate possession.
The 5th defendant is directed to pay court fee
on her share as per the provisions of the Karnataka
Court Fees and Suits Valuation Act, if not paid.
By considering the nature of the suit,
relationship of the parties and also the facts and
circumstances of the case, the parties are directed to
bear their own costs.
Draw preliminary decree accordingly.
Office to send the copy of this Judgment along
with decree and LCR to the lower court forthwith."
4. It is the grievance of the petitioner that in view of
the judgment and decree of the First Appellate Court in which
the parties are declared not to have any share in items Nos.5
and 6 of the suit schedule properties coupled with the fact that
the petitioner herein is the purchaser only in relation to item
No.6 of the suit schedule property, the Trial Court was not
justified in directing for the appointment of a Court
Commissioner to effect partition in respect of item No.6 of the
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suit schedule property claimed by the petitioner, which had
been expressly excluded from the judgment and decree passed
by the First Appellate Court and as such, the petitioner is
before this Court by way of the present petition.
5. Per contra, learned counsel for respondent Nos.1 to
4 does not dispute that, as per the judgment and decree of the
First Appellate Court in R.A.No.15/2017 in which the judgment
and decree of the Trial Court that stood thus, the parties are
not entitled to any share in item Nos.5 and 6 of the suit
schedule properies and appointment of a Court Commissioner
may be restricted to item Nos.1 to 4 only. The submission of
learned counsel for respondent Nos.1 to 4 is placed on record.
4.
6. In view of the aforesaid facts and circumstances
and the undisputed fact that, as per the judgment and decree
passed by the First Appellate Court in R.A.No.15/2017, the
parties have been declared to be entitled to share only in item
Nos.1 to 4 of the suit schedule properties and item Nos.5 and 6
have been expressly excluded from the decree of the First
Appellate Court which declared that the parties are not entitled
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to any share in the said properties. I deem it just and
appropriate to modify the impugned order and restrict the
appointment of a Court Commissioner only to item Nos.1 to 4
of the suit schedule properties.
In the result, I pass the following:
ORDER
(i) The petition is disposed of.
(ii) The impugned order dated 30.09.2022 in
F.D.P.No.8/2017 is hereby modified.
(iii) I.A.No.1 filed by respondent Nos.1 to 4 for
appointment of a Court Commissioner is partly
allowed and the Trial Court is directed to proceed
further and take steps to appoint a Court
Commissioner in terms of the impugned order only in
respect of item Nos.1 to 4 of the suit schedule
properties and by excluding item Nos.5 and 6 of the
suit schedule properties.
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(iv) The Trial Court is directed to dispose of the final
decree proceedings within a period of six months
from the date of receipt of a copy of this order.
Sd/-
JUDGE
GJM
CT:SNN
