Smt Anusuyamma vs Smt Lakshmamma @ Dodda Lakshmamma
2023 Latest Caselaw 6490 Kant

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                                                           NC: 2023:KHC:33056
                                                        RFA No. 2032 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 13TH DAY OF SEPTEMBER, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                         REGULAR FIRST APPEAL NO. 2032 OF 2022 (PAR)

                   BETWEEN:

                   1.    SMT ANUSUYAMMA
                         W/O VENKATESHAPPA,
                         AGED ABOUT 61 YEARS,
                         R/AT THERUBEEDI, MELINAPETE,
                         NEAR POORNA CHICKEN CENTRE,
                         HOSKOTE TOWN, HOSKOTE,
                         BENGALURU RURAL DISTRICT-562114
                                                                 ...APPELLANT

                               (BY SRI. RAHUL.S.REDDY., ADVOCATE)
                   AND:

                   1.    SMT. LAKSHMAMMA @ DODDA LAKSHMAMMA
Digitally signed         D/O GARE NARAYANAPPA,
by SHARANYA T            W/O LATE CHIKKA ANJINAPPA,
Location: HIGH
COURT OF                 AGED ABOUT 72 YEARS,
KARNATAKA                R/A VARADAPURA VILLAGE,
                         KASABA HOBLI, HOSKOTE TALUK,
                         BENGALURU RURAL DISTRICT-562114

                         SMT LAKSHMAMMA
                         W/O LATE GARE NARAYANAPPA
                         DEAD BY HER LRS

                   2.    SMT. SUNANDAMMA,
                         W./O MUNIVENKATAPPA,
                         AGED ABOUT 67 YEARS,
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                                       NC: 2023:KHC:33056
                                  RFA No. 2032 of 2022




3.   SMT NAGARATHNAMMA
     W/O PENDRA,
     AGED ABOUT 62 YEARS,

     RESPONDENT NOS. 2 AND 3 ARE
     R/AT THERUBEEDI, MELINAPETE,
     NEAR POORNA CHICKEN CENTER,
     HOSKOTE TOWN, HOSKOTE,
     BENGALURU RURAL DISTRICT-562114

4.   SMT ANURADHA N
     W/O LATE SRINIVAS NAIDU,
     AGED ABOUT 53 YEARS,

5.   SRI SANTOSH KUMAR S
     S/O LATE SRINIVAS NAIDU,
     AGED ABOUT 29 YEARS,

6.   SRI JANARDHANA
     S/O LATE SRINIVAS NAIDU,
     AGED ABOUT 26 YEARS,

     RESPONDENT NOS. 4 TO 6 ARE
     RESIDING AT NO.72,
     MUDDALAPPA STREET,
     LALBAGH MAIN GATE,
     DODDAMAVALLI,
     BENGALURU-560004

7.   SRI NARAYANA MURTHY
     S/O LATE M ANANTHA
     PADMANABHA NAIDU,
     AGED ABOUT 56 YEARS,
     R/AT NO.52, 2ND FLOOR,
     YELLAPPA STREET,
     LALBAGH WEST GATE,
     CHIKAMAVALLI, BASAVANGUDI,
     BENGALURU-560004

8.   SRI SATHISH KUMAR
     S/O LATE M. ANANTHA
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                                           NC: 2023:KHC:33056
                                        RFA No. 2032 of 2022




    PADMANABHA NAIDU,
    AGED ABOUT 56 YEARS,
    R/AT NO.12/2, KRUMBIGAL ROAD,
    R V PUBLIC SCHOOL,
    UPPARAHALLI, BASAVANAGUDI,
    BENGALURU-560004.
                                              ...RESPONDENTS
       (BY SRI DAYANANDA K.G., ADVOCATE FOR R1,
   R2 HELD SUFFICIENT, VIDE ORDER DATED 29.08.2023,
               SRI P.M.GOPI ADVOCATE FOR
    SRI P.M.SIDDAMALLAPPA, ADVOCATE FOR R3 TO R8)

     THIS RFA IS FILED UNDER SEC.96 OF CPC., 1908
AGAINST JUDGMENT DATED 07.06.2022 PASSED IN FDP
NO.41/2013 ON THE FILE OF THE C/C II ADDITIONAL SENIOR
CIVIL JUDGE BENGALURU RURAL DISTRICT, BENGALURU,
ALLOWING THE PETITION FILED UNDER ORDER 18 RULE 20 OF
CPC.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                          JUDGMENT

Heard the learned counsel for appellant and counsel

appearing for the respondent. This matter is listed for

admission.

2. This appeal is filed challenging the order of the

Trial Court passed in FDP No.41/2013 wherein the Trial

Court appointed the ADLR to measure the property and

show the road to access for each sharers of the parties

since earlier reports not contains any road for access to

NC: 2023:KHC:33056 RFA No. 2032 of 2022

each of the parties and said order was passed on

02.03.2022. The said order is passed When these

appellants have objected for the commissioner report

stating that no margin is left for ingress and egress in

respect of all 5 identified shares, when the said submission

was made and also taking into the said submission, the

report is set aside to the extent of non showing of proper

road to each sharer and directed ADLR, Hosakote to

resurvey the decreetal property and ensure that all 5

sharers get accessible road margin measuring 30 feet

towards eastern side, before that ADLR is directed to issue

notice to all the parties concerned and also respective

counsel if the address of the counsel furnished to ADLR.

Thereafter the ADLR visited the spot and issued notice on

28.03.2022 and specifically mentioned that these

appellants have not taken the notice and also while

conducting the mahazar specifically mentioned that

notices are given to the parties as well as advocates. Now,

the counsel appearing for the appellant would contend that

no notice was served on them.

NC: 2023:KHC:33056 RFA No. 2032 of 2022

3. It is not in dispute that when the order was

passed by the Trial Court while appointing ADLR to

resurvey the decreetal property and ensure that all 5

sharers get accessible road margin measuring 30 feet

towards western side, before that the ADLR is directed to

issue notice to all the parties concerned and also to the

respective counsels if the address of the counsel is

furnished to ADLR. Hence it is clear that this order was

passed in the presence of the respective parties.

4. It is not the case of the appellants that they

have furnished the address to the ADLR, when the

mahazar is very clear that notice was issued and also

when the spot inspection was conducted, first of all they

have not received the notice and also the mahazar is very

clear that they were not present. No doubt the appellant

has also filed the objections to the commissioner report

and only contend that no such notice was issued and

whether they have furnished the address to the ADLR by

NC: 2023:KHC:33056 RFA No. 2032 of 2022

the counsel, not stated anything but only contention that

commissioner report is accepted without notice.

5. Having perused the material on record, it is not

in dispute that earlier also Commissioner was appointed

and Commissioner report was given and same was also

objected and the order is very clear that only in respect of

road was not left to access the property of each sharer

and only to that extent the earlier report is set aside and

ADLR is directed to resurvey before the margin and

conducted the mahazar and copy of the same is also

produced before the Court, the notice was issued on

28.03.2022 and mahazar is also clear that these

appellants have not participated while making the

resurvey and sketch is very clear that now in order to

access the item No.1 to 3 road margin is also given to

each of the sharers and only contention that they have not

complied with Section 54 of CPC. The said contention

cannot be accepted when they have participated in the

earlier survey and only objections was raised with regard

NC: 2023:KHC:33056 RFA No. 2032 of 2022

to the no access to the road and subsequently conducted

the inspection and shown the road margin to all the

parties and given the report as directed by the Court.

6. The Trial Court has also taken note of the said

aspect accepting the Commissioner report subsequently

filed by the ADLR and on perusal of the order of the Trial

Court while accepting the commissioner report in

paragraph No.13 taken note of earlier commissioner report

was received by the Court and the same was set aside on

19.03.2022 by directing the ADLR, Hosakote to conduct

the resurvey by ensuring that all 5 sharers get accessible

road measuring 30 feet towards western side of all the

items. Accordingly, modified survey report was received by

the Court on 16.04.2022. The report was prepared on

13.04.2022 which contains signature of all the parties

except respondent Nos.2 and 3 i.e., appellants herein who

did not present when re-survey was conducted.

7. The Court has also made an observation that

there is no hurdle in accepting the commissioner report

NC: 2023:KHC:33056 RFA No. 2032 of 2022

and also made an observation that respondent No.2 and 3

have filed objection statement and there is a bad motive

in filing objections since they are enjoying the entire

extent of properties and they are trying to protract the

proceedings as much they can. The records also discloses

that objection has also filed to the earlier report and

earlier report objection is only with regard to no road is

shown to access the property. Hence fresh commissioner

was appointed and direction was given and accordingly the

ADLR given the report and shown the road access to each

of sharers. Hence, the Trial Court taking note of the said

fact into consideration drawn the final decree petition.

8. The counsel for respondents would also submits

that in terms of the FDP order already FDP is drawn and

executed the order. Only the contention of the appellant

that the ADLR is also not equivalent to the Tahasildar and

the said contention cannot be accepted when the ADLR

appointed before the Trial Court and the very counsel

representing the appellant was also present and their

NC: 2023:KHC:33056 RFA No. 2032 of 2022

instance only that earlier commissioner report was set

aside only to the ingress and egress the property which

was allotted to the sharers and limited purpose only ADLR

was appointed and in their presence only order was

passed when such being the case, the very contention of

the counsel for appellant that Section 54 of CPC has not

been complied which cannot be accepted.

9. The other contention that no proper service also

cannot be accepted, since the notice dated 28.03.2022 is

also very clear wherein they have specifically made a

reference that they have not taken the notice and

mahazar also discloses that not only notice was given to

the parties even to the respective counsels also and order

of the Trial Court is very clear that the appellants' counsel

has to furnish the correct address to the ADLR and it is not

their case that they have furnished the same as directed

by the Court. Now, cannot find fault with the report of the

ADLR. Hence, I do not find any merit to admit the appeal,

the Trial Court has already taking into consideration of

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NC: 2023:KHC:33056 RFA No. 2032 of 2022

material on record comes to the conclusion that the

appellant herein are protracting in each share since they

are enjoying the property and not ready to give shares to

the other sharers. Hence, there is no merit to admit the

appeal.

In view of the discussion made above, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE RHS