Karnataka High Court
K.S. Krishne Gowda vs K.S. Manjunath on 14 March, 2023
Bench: B.M.Shyam Prasad
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WP No. 45184 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 45184 OF 2015 (GM-CPC)
BETWEEN:
K.S. KRISHNE GOWDA
S/O LATE K S SHIVANNA GOWDA,
AGED ABOUT 58 YEARS
R/O KORATAGERE,
SANTHE BACHALLI HOBLI,
K R PET TALUK,
MANDYA DISTRICT-571 401.
...PETITIONER
(BY SRI. VINAY D HOSMATH., ADVOCATE)
AND:
1. K.S. MANJUNATH
Digitally
S/O LATE K SHIVANNA GOWDA,
signed by
NARASIMHA AGED ABOUT 50 YEARS
MURTHY
VANAMALA R/O HEMAVATHI EXTENSION,
Location:
HIGH K R PET TALUK,
COURT OF
KARNATAKA MANDYA DISTRICT-571 401.
2. K S SHIVANANJE GOWDA
S/O LATE SHIVANNA GOWDA,
MAJOR, R/O NARIYALLI,
KASABA HOBLI,
HASSAN TALUK & DISTRICT-573 201.
3. SUBBAMMA
D/O LATE SHIVANNA GOWDA
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WP No. 45184 of 2015
SINCE DEAD BY HER LRS ON RECORD
WHO ARE ALREADY ON RECORD
AS PETITIONER AND RESPONDENT NOs.1 & 2
4. K S SHIVALINGE GOWDA
S/O K SHIVANANJE GOWDA,
MAJOR, R/O WALAGERI,
MENASA, KASABA HOBLI,
K R PET TALUK,
MANDYA DISTRICT-571 401.
...RESPONDENTS
(BY SRI. SHARATH S GOWDA., ADVOCATE FOR R1;
SRI. ADITHYA BHAT, ADVOCATE FOR R2;
NOTICE TO R3 SERVED ;
SRI. ABHINAY Y.T., ADVOCATE FOR
SRI. BYREGOWDA.N., ADVOCATE FOR R4;
VIDE ORDER DATED R1 AND R2 ARE LRS OF R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER VIDE ANN-C, PASSED ON I.A. IN
FDP 3/2009 DATED 26.7.2014 SO FAR ALLOTING
REMAINING PORTION OF THE LANDS OF HASSAN
DISTRICT IN FAVOUR OF RESPONDENT NO.1/
PLAINTIFF; DIRECT THE COURT BELOW TO DIVIDE THE
ENTIRE PROPERTIES OF HASSAN ALSO IN EQUAL
SHARES AND ALLOT THE SAME TO ALL THE DECREE
HOLDERS.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE
THE FOLLOWING:
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WP No. 45184 of 2015
ORDER
This petition is by the second respondent in the
Final Decree Proceedings in FDP No.3/2009 on the
file of the Senior Civil Judge and JMFC, K R Pet [for
short, 'the civil Court']. The petitioner has impugned
the civil Court's order dated 26.07.2014, and the
operative portion of the civil Court's impugned order
reads as under:
"I.A. filed by the respondent No.1 is hereby
allowed. The commissioner's warrant submitted
by the surveyor of K.R. Pet and Hassan Taluk
are here by set aside
The possession of respondent over the
property situated at the first respondent over the
property situated at Hassan Taluk is protected
to the extent of his share.
Issue the Commissioner's warrant along
with copy of the judgement and order to the
Deputy Commissioner Hassan to measure the
property situated at Jodi Tettikere and Narihalli
village and to allot the share to respondent No. 1
and allot the remaining property to the
petitioner.
WP No. 45184 of 2015
The court commissioner shall measure the
property in order to allot the share to respondent
No.1 to see that his residential house, cocoon
house and sugar cane crushing house shall be
included into his share.
Issue the commissioner's warrant to Deputy
Commissioner, Mandya District along with the
copy of judgement and order to execute the
partition in respect of the property situated at
K.R. Pet Taluk to allot the same to the petitioner,
Respondent No.2 & 3.
Sri. Vinay D Hosmath, the learned counsel for the
petitioner, and Sri. Sharath S Gowda, Sri. Adithya
Bhat and Sri. Abhinay Y T, the learned counsels for
the respondents, are heard for final disposal.
2. It is undisputed that the first respondent's
suit in O.S. No.68/2007 is decreed by the Judgment
and Decree dated 31.07.2009 declaring that the
petitioner herein and his two brothers viz., the first
and second respondents and their mother, the third
respondent [who is no more and it is undisputed that
she has died intestate] are allotted one-fourth share
WP No. 45184 of 2015
in the different immovable properties described in the
schedules appended to the plaint. The immovable
properties are situated at [a] Koratikere Village,
Santhebachahalli Hobli, K R Pet, Taluk, Mandya
District; [b] Valagere Menasa Village,
Santhebachahalli Hobli, K R Pet, Taluk, Mandya
District; [c] Narihalli Village, Kasaba Hobli, Hassan
District; [d] Jodi Tattekere Village, Kasaba Hobli,
Hassan District. If the agricultural lands situate in
these four villages are included in the different
schedules appended to the plaint, certain residential
properties situate in these villages are also included
in these schedules.
3. In the subsequent appeal, the Judgment
and decree in O.S. No.68/2007 is modified declaring
that the three brothers would be entitled for 5/16th
share and the mother would be entitled for 1/16th
share. It must be recorded that the fourth
respondent, who is also born to the third respondent,
WP No. 45184 of 2015
is not granted a share on the ground that he is given
in adoption. The fourth respondent has not accepted
such finding, and this respondent's grievance is
pending consideration before this Court in RSA
No.801/2020.
4. While Sri. Vinay D Hosmath, the learned
counsel for the petitioner, submits that this Court
must interfere with the civil Court's order because
the allocation of a valuable property only to the first
and second respondents is inequitable, Sri. Adithya
Bhat, the learned counsel for the second respondent,
submits that the allocation of 5 acres 13 guntas and
12 acres 20 guntas respectively in Item No. 1 of
Schedule B to the first and second respondents is
because the second respondent's consistent stand
has been that he is in possession of this larger extent
of land and he has developed the same at his cost. He
also submits that the undisputed fact that these
respondents have been residing in the same village
WP No. 45184 of 2015
for the last forty years is also considered. Sri.
Sharath S Gowda, the learned counsel for the first
respondent, submits that the first respondent had
contested the second respondent's claim for allotment
of a larger extent in the aforesaid lands, but as of
now this respondent has reconciled to such
allotment.
5. Sri. Abhinay Y T, the learned counsel for
the fourth respondent, submits that any orders in the
Final Decree Proceedings will have to be subject to
the orders in RSA No.801/2020 notwithstanding the
fact that there is no interim order to that effect
because if it is ultimately established that the fourth
respondent would be entitled to the land measuring 8
acres 13 guntas in Sy. No.10 of Narihalli Village,
Kasaba Hobli, Hassan District [item No.1 of
Schedule-B to the plaint] because he was a major as
on the date of the purchase, none of the other three
brothers would be entitled for a share in this extent.
WP No. 45184 of 2015
6. At the outset, this Court must record that
the impugned order cannot be sustained inasmuch
as it does not enable a final decree as contemplated
under Section 54 of the Code of Civil Procedure, 1908
[for short, 'CPC']. In a suit for partition, a civil Court
will have to pass a decree for partition of the subject
immovable properties by definite metes and bounds
and for separate possession, and if necessary, the
civil Court could call for a report from the appropriate
Revenue Officer with due opportunity to the
concerned to have their say on the report filed by the
aforesaid. If the decree is so drawn and the parties
do not partition the properties by metes and bounds
in terms of the decree, the aggrieved could file
appropriate proceedings under Order XXI of CPC.
7. The civil Court, contrary to this
indisputable position in law, has directed the Deputy
Commissioner of the concerned Districts to execute
warrant for partition by metes and bounds after a
WP No. 45184 of 2015
tentative allocation as aforesaid. This Court must
also record that the civil Court has premised its
allotment of suit item Nos.1 and 2 of Schedule-B
property only to the first and second respondents
because of its opinion that the Judgment holds that it
would be necessary to protect, preserve and respect
the possession of the second respondent. But the
learned counsels for the parties are in unison in
submitting that there is no direction either at the first
instance or at the appellate stage though Sri. Adithya
Bhat submits that the second respondent's
consistent stand has been that he is in possession of
these two portions of lands and has developed the
same. If the premise for allotment is so unfounded,
the allotment must also fail.
8. For these reasons, the impugned order
cannot be sustained. The proceedings in FDP
No.3/2009 must be restored to the civil Court for
appropriate orders. At this stage, Sri. Vinay D
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WP No. 45184 of 2015
Hosmath submits that the Court Commissioner, who
is appointed in the final decree proceedings, has filed
his report for division of not just schedule-B
properties in Hassan District but also schedule-A
properties which are situate within Mandya District.
9. The petitioner, as seen from the records,
has remained ex parte before the civil Court and this
would necessarily mean that he has not filed his
statement of objections to the Commissioner's report.
It could be that the first and the second respondents
have also not filed a detailed statement of objections
to the Commissioner's report. Therefore, there must
be a reasonable opportunity to the petitioner as also
to the first and second respondents to file their
objections to the Commissioner's report and they
must also be given due opportunity to substantiate
the objections in any enquiry that would be
necessary, including on the question whether there
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WP No. 45184 of 2015
must be any equity in favour of the second
respondent.
10. Further, this Court, as it is stated that the
third respondent [the mother] has died intestate,
must observe that the partition of the suit schedule
properties by metes and bounds will have to be only
between the petitioner and the first and second
respondents, but subject to the outcome in RSA
No.801/2020. As such, the following:
ORDER
[a] The petition is allowed in part, and
the civil Court's impugned order dated
26.07.2014 in FDP No.3/2009 is
quashed.
[b] The civil Court is called upon to
enter proceedings from the stage of
objections by the parties to the
Commissioner's report. The petitioner
and the first and second respondents
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shall file their statement of objections, if
any, within four [4] weeks from the date
of first appearance before the civil Court
consequent to this order and the parties
shall appear before the civil Court
without further notice on 10.04.2023.
SD/-
JUDGE
AN/-
