Karnataka High Court
Smt Sanjeevamma vs Smt Siddamma on 8 August, 2024
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NC: 2024:KHC:31824
RSA No. 502 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.502 OF 2024 (PAR)
BETWEEN:
1. SMT. SANJEEVAMMA
W/O LATE GANGAIAH,
AGED ABOUT 76 YEARS,
2. SRI. NARASIMHAMURTHY K.
S/O LATE GANGAIAH,
AGED ABOUT 56 YEARS,
BOTH ARE RESIDING AT
RAILWAY STATION ROAD,
2ND CROSS, GANDHI NAGAR,
TUMAKURU, .NOW RESIDING AT
NO.1131, TUDA LAYOUT,
MELEKOTE,
TUMAKURU - 572105.
Digitally signed by ...APPELLANTS
ARUNKUMAR M S
Location: High (BY SRI. BALAKRISHNA K., ADVOCATE)
Court of Karnataka
AND:
1. SMT. SIDDAMMA
D/O LATE GANGAIAH,
AGED ABOUT 54 YEARS,
R/AT HOUSING BOARD,
3RD CROSS, D NO 15,
JAYAPURA ROAD,
TUMAKURU - 570008.
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RSA No. 502 of 2024
2. SMT. LAKSHMINARASAMMA
D/O LATE GANGAIAH
W/O NARASIMHAMURTHY (TEACHER)
AGED ABOUT 51 YEARS,
R/AT NO.14, PIPELINE ROAD,
MAHESHWARANAGARA,
HEROHALLI CROSS,
BEHIND MAHAVEER MANSION,
HOSAHALLI, MAGADI ROAD,
BENGALURU - 560023.
3. SMT. G. MANJULA
D/O LATE GANGAIAH,
W/O RANGANNA
AGED ABOUT 49 YEARS,
R/AT 3RD ANGALAIANAKERE,
RAILWAY STATION ROAD,
SHIVAMOGGA -577201.
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE
JUDGMENT AND DECREE DATED 15.12.2023 PASSED IN R.A.
NO.36 OF 2023 ON THE FILE OF THE III ADDITIONAL SENIOR
CIVIL JUDGE AND JMFC, TUMAKURU, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 03.01.2023 PASSED IN FDP NO.25 OF 2017
(OS.NO.335 OF 2010) ON THE FILE OF THE IV ADDITIONAL
CIVIL JUDGE AND JMFC, TUMAKURU. ALLOWING THE PETITION
FILED UNDER SECTION 54 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
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RSA No. 502 of 2024
ORAL JUDGMENT
This appeal is filed by the respondent No.1 in FDP
No.25 of 2017, challenging the judgment and decree
dated 15.12.2023 passed in RA.No.36 of 2023 on the
file of the III Additional Senior Civil Judge and JMFC,
Tumakuru, dismissing the appeal and confirming the
order 03.01.2023 passed in FDP No.25 of 2017 (OS
No.335 of 2010) on the file of the IV Additional Civil
Judge and JMFC, Tumakuru, for drawing up the final
decree.
2. For the sake of convenience, the parties in
this appeal shall be referred to in terms of their status
and ranking before the trial Court.
3. It is the case of the petitioner in FDP No.25
of 2017 that, the plaintiff/petitioner, has filed OS
No.335 of 2010 before the Trial Court seeking relief of
partition and separate possession in respect of the suit
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schedule property and the said suit came to be
decreed on 09.08.2017, whereby, it is held that, the
plaintiff/petitioner is entitled for 1/5th share in the suit
schedule property. Thereafter, the plaintiff/petitioner
filed FDP No.25 of 2017 seeking passing of final
decree in terms of the preliminary decree passed in
OS No.335 of 2010. The Trial Court, after the
considering the report of the Court Commissioner,
accepted the same, and thereby, allowed the petition
as per order dated 03.01.2023. Being aggrieved by
the same, the respondent Nos. and 2 have filed RA
No.36 of 2023 before the First Appellate Court. The
said appeal was resisted by the respondents therein.
The First Appellate Court, after re-appreciating the
facts on record, by its judgment and decree dated
15.12.2023 dismissed the appeal and confirmed order
passed by the trial Court in FDP No.25 of 2023. Being
aggrieved by the judgment and decree passed by the
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Courts below, the respondent/appellants have
preferred this Regular Second Appeal under Section
100 of CPC.
4. I have heard Sri. Balakrishna .K., learned
counsel for the appellants.
5. Sri. Balakrishna .K., learned counsel
appearing for the appellants submitted that, the
judgment and decree in OS No.335 of 2010 allotting
1/5th share itself is incorrect and the said aspect of the
matter was not considered by both the courts below.
He further contended that, no opportunity of hearing
was given to the appellants to say about the report of
the Court Commissioner and accordingly, sought for
interference of this Court.
6. Having heard the learned counsel appearing
for the appellants, I have carefully examined the
finding recorded by the both the courts below. It is not
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in dispute that the plaintiff/petitioner has filed OS
No.335 of 2010, which came to be decreed on
09.08.2017 and it was held that the petitioner/plaintiff
is entitled for 1/5th share in the suit schedule property.
It is also argued by the learned counsel for the
appellants that, the judgment and decree in OS
No.335 of 2010 came to be confirmed in RA No.54 of
2022 on the file of II Additional Senior Civil Judge,
Tumakuru dated 09.03.2022. The said judgment has
reached finality. In that view of the matter, the
appellants cannot challenge the share made in favour
of the petitioner/plaintiff. Insofar as the impugned
judgment and decree of the Trial Court is concerned,
the Trial Court in Final Decree proceedings appointed
the Thasildar, Tumakuru as Court Commissioner to
measure and bifurcate the suit property and as there
was no objection filed by the petitioner or the
respondents therein, to the report submitted by the
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Court Commissioner and accordingly, same was
accepted and therefore, the finding recorded by the
Trial Court by judgment and decree dated 03.01.2023
in FDP No. 25 of 2017 is just and proper. The First
Appellate Court, after re-appreciating the material on
record, rightly confirmed the same and therefore, I do
not find material illegality or perversity in the
judgment and decree passed by the Courts below and
accordingly, the Regular Second Appeal is liable to be
dismissed. Since, the respondents/appellants have
not made out grounds for formulation of substantial
question of law as required under Section 100 of Code
of Civil Procedure, appeal is liable to be dismissed at
the Admission stage itself, accordingly, appeal is
dismissed.
SD/-
(E.S.INDIRESH)
JUDGE
SB
