Karnataka High Court
S T Srinivasa vs Smt S R Seethamma on 13 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC:6036
RSA No. 955 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL No. 955 OF 2019 (PAR)
BETWEEN:
1. S. T. SRINIVASA,
S/O LATE S.R.THIMMAIAH,
AGED ABOUT 51 YEARS,
R/AT N.T. ROAD,
(NEAR MANGALORE POVA MILL)
SHIVAMOGGA-577202
2. S.T. VASUDEVA
S/O LATE S.R. THIMMAIAH,
AGED ABOUT 53 YEARS,
R/AT N.T. ROAD,
SHIVAMOGGA-577202
...APPELLANTS
(BY SRI RAMA MOORTHY B. V., ADVOCATE)
Digitally
signed by AND:
SUMA B N
Location:
High Court 1. SMT. S. R. SEETHAMMA,
of Karnataka W/O LATE S.R.RANGAIAH,
AGED ABOUT 63 YEARS,
R/AT SRI LAKSHMI RANGANATHA NILAYA,
OPP:STATE BANK OF INDIA,
N.T. ROAD, SHIVAMOGGA-577202.
2. PRASANNA KUMAR T.S.,
S/O LATE T.L. SHIVANNA,
AGED ABOUT 58 YEARS,
R/AT 'SAI KRUPA',
No.736, 7TH CROSS,
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RSA No. 955 of 2019
6TH MAIN, 4TH STAGE,
PEML LAYOUT,
RAJARAJESHWARI NAGAR,
BANGALORE-560098.
3. SURESH KUMAR T.S.,
S/O LATE T.L. SHIVANNA,
AGED ABOUT 50 YEARS,
R/AT 'BHAGYA NILAYAA,
No.28, 1ST CROSS,
GANDINAGARA,
SHIVAMOGGA-577202.
4. SMT. BHAGYASHRI A.PARIL,
W/O AMARASIMHA PATIL,
AGED ABOUT 53 YEARS,
R/AT BEHIND MAHALAKSHMI TEMPLE,
SUBHASH MARKET,
HINDWADI, BELAGAVI-590001.
5. SMT. S.P.NAGAMMA,
W/O LATE S.R.THIMMAIAH,
AGED ABOUT 70 YEARS,
R/AT NEAR MANGALORE POVA MILL,
N.T. ROAD, SHIVAMOGGA-577202.
6. SMT. NAGAMMA,
W/O LATE SHIVASHANKARA,
AGED ABOUT 65 YEARS,
R/AT OPP. STATE BANK OF MYSORE,
N.T. ROAD, SHIVAMOGGA-577202.
7. SMT. S.T.HEMALATHA,
D/O LATE S.R.THIMMAIAH,
AGED ABOUT 49 YEARS,
R/AT NEAR MANGALORE POVA MILL,
N.T. ROAD, SHIVAMOGGA-577202.
8. SMT. S.T. CHAYADEVI,
D/O LATE S.R.THIMMAIAH,
AGED ABOUT 47 YEARS,
R/AT NEAR MANGALORE POVA MILL,
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NC: 2024:KHC:6036
RSA No. 955 of 2019
N.T. ROAD, SHIVAMOGGA-577202.
9. SMT. S.T. KAVITHA,
D/O LATE S.R.THIMMAIAH,
AGED ABOUT 45 YEARS,
R/AT NEAR MANGALORE POVA MILL,
N.T. ROAD, SHIVAMOGGA-577202.
10. SMT. SHIVAMMA,
W/O LATE RAMANNA,
AGED ABOUT 62 YEARS,
R/AT OPP: STATE BANK OF MYSORE,
N.T. ROAD, SHIVAMOGGA-577202.
11. S.R. KUMAR,
S/O LATE RAMANNA,
AGED ABOUT 42 YEARS,
R/AT OPP: STATE BANK OF MYSORE,
N.T. ROAD, SHIVAMMOGA-577202.
12. S.R.LINGARAJU,
S/O LATE RAMANNA,
AGED ABOUT 45 YEARS,
R/AT.OPP: STATE BANK OF MYSORE,
N.T. ROAD, SHIVAMOGGA-577202.
13. SMT. S.R. ROHINI PRAKASH,
D/O LATE RAMANNA,
W/O PRAKASH PUTTAPPA,
AGED ABOUT 35 YEARS,
R/AT OPP: STATE BANK OF MYSORE,
N.T.ROAD, SHIVAMOGGA-577202.
14. SMT. SHASHIKALA RAMESH,
D/O LATE RAMANNA,
W/O RAMESH
AGED ABOUT 35 YEARS,
R/AT OPP: STATE BANK OF MYSORE,
N.T. ROAD, SHIVAMOGGA-577202.
AS PER FDP R/AT
NANDA GOKULA,
-4-
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RSA No. 955 of 2019
No.261/A, DABAS PALYA,
RV COLLEGE POST,
KENGERI, BANGALORE-560059.
15. SMT. YASHASVINI RAVI KUMAR
D/O LATE RAMANNA,
W/O RAVIKUMAR,
AGED ABOUT 35 YEARS,
R/AT OPP: STATE BANK OF MYSORE,
N.T. ROAD, SHIVAMOGGA-577202.
AS PER FDP ADDRESS
C/O LAKSHMI GOWDA,
RETIRED COURT SHIRASTHEDAR,
GAYATHRI EXTENSION,
CHANNARAYAPATNA,
HASSAN DISTRICT-573116.
16. SMT. SHOBHA TRILOK,
S/O TRILOK,
AGED ABOUT 35 YEARS,
R/AT OPP: STATE BANK OF MYSORE,
N.T. ROAD,
SHIVAMOGGA-577202.
AS PER FDP ENGINEERS AND CONTRACTORS,
NEXT TO BHEL, PANTHRA PALYA,
MYSORE ROAD,
BANGALORE-560039.
17. SMT. S.R. SAHANA PATEL,
D/O LATE RAMANNA,
AGED ABOUT 40 YEARS,
R/AT.OPP: STATE BANK OF MYSORE,
N.T. ROAD, SHIVAMOGGA-577202.
18. S.R. CHANDRAPPA,
S/O LATE S.R.RANGAIAH,
AGED ABOUT 68 YEARS,
R/AT OPP: STATE BANK OF MYSORE,
N.T. ROAD, SHIVAMOGGA-577202.
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RSA No. 955 of 2019
19. SMT. K.R. USHA,
W/O LATE GAVIYAPPA,
AGED ABOUT 53 YEARS,
R/AT OPP: STATE BANK OF MYSORE,
N.T. ROAD, SHIVAMOGGA-577202.
20. S.G. AKSHATH,
S/O LATE.GAVIYAPPA
AGED ABOUT 26 YEARS,
R/AT OPP. STATE BANK OF MYSORE,
N.T. ROAD, SHIVAMOGGA-577202.
21. SMT. S.G. HARSHITHA,
D/O LATE GAVIYAPPA,
AGED ABOUT 28 YEARS,
R/AT OPP. STATE BANK OF MYSORE,
N.T. ROAD, SHIVAMOGGA-577202.
22. SMT. S.G. ANUSHA,
D/O LATE GAVIYAPPA,
AGED ABOUT 54 YEARS,
R/AT OPP. STATE BANK OF MYSORE,
N.T. ROAD, SHIVAMOGGA-577202.
23. H.P.BALAPPA,
S/O PYATI SANNABHARMAPPA,
AGED ABOUT 65 YEARS,
R/AT "SRI.BHEEMAMBIKA NILAYA"
6TH CROSS, RAVINDRANAGAR,
SHIVAMOGGA-577202.
24. S.B.SHASHIDHAR,
S/O H.P.BALAPPA,
AGED ABOUT 45 YEARS,
R/AT "SRI BHEEMAMBIKA NILAYA"
6TH CROSS, RAVINDRANAGAR,
SHIVAMOGGA-577202.
25. S.B. INDUDHAR,
S/O H.P.BALAPPA,
AGED ABOUT 36 YEARS,
R/AT SRI BHEEMAMBIKA NILAYA,
-6-
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RSA No. 955 of 2019
6TH CROSS, RAVINDRANAGAR,
SHIVAMOGGA-577202.
26. SMT. S.P. SAVITHA,
W/O SATYANARAYANA
AGED ABOUT 45 YEARS,
R/AT "SRI. BHEEMAMBIKA NILAYA"
6TH CROSS, RAVINDRANAGAR,
SHIVAMOGGA-577202.
27. SMT. S.B. DHANALAKSHMI,
W/O S.H.PRASANNA KUMAR
AGED ABOUT 38 YEARS,
R/AT "SRI. BHEEMAMBIKA NILAYA"
6TH CROSS, RAVINDRANAGAR,
SHIVAMOGGA-577202.
28. R. MALLESHAPPA,
S/O LATE S.R. RANGAIAH,
AGED ABOUT 65 YEARS,
R/AT RANGANATHA NILAYA,
OPP: STATE BANK OF MYSORE,
N.T. ROAD, SHIVAMOGGA - 577202.
...RESPONDENTS
(BY SRI CHANDAN M., ADVOCATE A/W
SRI H.S. PRASHANTH, ADVOCATE FOR C/R1)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 19.03.2019 PASSED IN RA.NO.03/2016 ON THE FILE OF
THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
SHIVAMOGGA DISMISSING THE APPEAL AND CONFIRMING THE
ORDER DATED 16.11.2015 PASSED IN F.D.P. NO.1/2000 ON
THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND
MACT -7 AND E.C.C, SHIVAMOGGA PARTLY ALLOWING THE
PETITION FOR DRAWING UP OF FINAL DECREE.
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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RSA No. 955 of 2019
JUDGMENT
This appeal is by defendant Nos.1(c) and 1(b) against the
order dated 16.11.2015 passed in FDP No.1/2000 on the file of
the I Additional Senior Civil Judge and CJM, Shivamogga, which
is confirmed by order dated 19.03.2019 passed in
R.A.No.3/2016 on the file of the II Additional District and
Sessions Judge, Shivamogga.
2. The aforesaid FDP No.1/2000 was initiated by the
respondent, who was plaintiff in O.S.No.198/1988. The said
suit in O.S.No.198/1988 had been filed by respondent No.1
herein seeking partition and separate possession of 1/11th
share in the suit schedule properties consisting of 27 items in
Schedule-A and 12 items in Schedule-B. The said suit was
decreed conferring 1/11th share. Regular First Appeal in R.F.A.
No.399/1995 was filed, which was also dismissed on
09.04.1999. Consequent thereupon, the aforesaid Final Decree
Proceedings in FDP No.1/2000 was initiated. The Trial Court
appointed a Commissioner, who filed his report. The Trial
Court accepting the Commissioner's Report directed partition
and allotment of separate share as sought for by order dated
16.11.2015. Being aggrieved by the same, appellants herein
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who are defendants, filed R.A.No.3/2016. On reconsideration of
the matter, the First Appellate Court dismissed the appeal
confirming the judgment and order passed by the Trial Court in
FDP. Aggrieved by the same, present appeal is filed before this
Court.
3. Learned counsel for the appellants reiterating the grounds
urged in the memorandum of appeal submitted that though
statement of objections were filed by the appellants in FDP
raising issues with regard to non-joinder of necessary parties,
requirement of measurement of schedule properties in view of
the death of defendant Nos.6 and 10 and the Commissioner not
discharging his functions as required under law, the Trial Court
and the First Appellate Court without adverting to such
statement of objections have allowed the proceedings giving
rise to substantial questions of law requiring consideration at
the hands of this Court.
4. He further submits that the Commissioner ought to have
measured all the items of properties to re-adjust, reallocate
shares from 1/11th to 1/9th in view of the death of defendant
Nos.6 and 10. He submits, in view of alienations made by
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some of the defendants during the pendency of FDP, they
ought to have been brought on record and they not having
been brought on record, the Court could not have proceeded in
their absence. On a query by this Court, learned counsel fairly
submits that objections to Commissioner's Report were not
filed. He also submits, the Commissioner was also not
summoned for cross-examination. However, he submits that
the Trial Court and the First Appellate Court ought to have
adverted to the objections raised by the appellants in their
statement of objections to the proceedings. Hence, seeks
allowing of the appeal.
5. In response, learned counsel for respondent No.1 submits
that the Trial Court and the First Appellate Court have adverted
to every issue raised in the statement of objections filed by the
appellants. He submits, since the Commissioner's Report has
been accepted without any objections and the proceedings
having been completed, nothing survives for consideration in
the matter. Hence, seeks for dismissal of the appeal.
6. Heard. Perused the records.
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7. The Trial Court in the Final Decree Proceedings
considering the objections raised by the appellants framed the
following points for consideration;
"Point No.1: Whether the petition is bad for
non-joinder of necessary parties?
Point No.2: Whether the respondents show
that subsequent to the preliminary
decree, the petitioner has received
Rs.1,00,000/- and has ratified the
partition deed and hence, the
F.D.P., is not maintainable?
Point No.3: Whether the respondents show
that the deceased 6th and 10th
defendants have sold out their
share in the properties and hence,
their death will not alter the
shares of others now?
Point No.4: Whether the partition proposed by
the court commissioner is
reasonable and acceptable?
Point No.5: What order?"
8. On appreciation of oral and documentary evidence made
available on record, Trial Court answered Point Nos.1 to 3 in
the negative and Point No.4 in the affirmative.
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9. One of the contentions raised by the appellants was
non-joinder of necessary parties on the premise that some of
the properties were sold during the pendency of proceedings
and the purchaser of the said properties ought to have been
made as party to the proceedings.
10. The Trial Court taking note of the fact that even according
to the appellants the alienation was made during the pendency
of proceedings has come to the conclusion that such alienation
would be subject to the result of the proceedings. The Court
has also taken note of the fact that the persons who have
alienated the properties will have to answer the questions to be
raised by the alienee and the same would not affect the
persons who have sold their properties.
11. As regards the objection raised alleging the petitioner
having received a sum of Rs.1,00,000/- and purportedly
ratifying the partition, while answering Point No.2, the Trial
Court has adverted to the evidence lead and found that the
allegation of payment of Rs.1,00,000/- has not been proved by
the respondents.
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12. As regards Point No.3 of deceased respondent Nos.6 and
10 having sold their shares of the properties, Trial Court has
taken note of the fact that 1/11th share which has been allotted
in the Preliminary Decree has been enhanced to 1/9th upon
demise of defendant Nos.6 and 10. The Trial Court has also
taken note of the fact that after alteration of the said shares,
Commissioner had been appointed to re-measure the shares
according to the altered share and accordingly measurement
was conducted, report was submitted and that no objections
were filed by any of the parties including the appellants herein
either to the measurement made by the Commissioner or to
the Report submitted by the Commissioner. At paragraph 21 of
the order, Trial Court has taken note of the fact that none of
the parties had called the Commissioner for examination even
the respondents have not called the Commissioner for cross-
examination to point out the errors, if any, committed by the
Commissioner. Taking note of these aspects of the matter,
Trial Court has come to the conclusion accepting the Report
submitted by the Commissioner.
13. The First Appellate Court on re-appreciating the matter
has confirmed the reasoning and findings arrived at by the Trial
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Court. On a query by this Court regarding objections, if any,
filed to the Commissioner's Report, learned counsel for the
appellants fairly submitted that no objections have been filed to
the Commissioner's Report.
14. In view of the fact that all contentions raised by the
appellants/defendants with regard to non-joinder of parties,
payment of alleged Rs.1,00,000/- to the petitioner not having
been included and also in view of the fact that Commissioner's
Report having been accepted un-opposed, no fault or
irregularity can be found to the reasoning and conclusion
arrived at by the trial Court confirmed by the First Appellate
Court warranting interference. No substantial question of law
would arise in the matter. Accordingly, the appeal is
dismissed.
Sd/-
JUDGE
MV
