Karnataka High Court
Sri M S Eshware Gowda vs Smt M S Leelavathi on 29 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 977 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 977 OF 2022 (PAR)
BETWEEN:
1. SRI M.S. ESHWARE GOWDA,
S/O LATE SIDDE GOWDA,
AGED ABOUT 62 YEARS,
R/O MAKODU VILLAGE,
JAKKANAHALLI POST,
CHIKKAMAGALURU TALUK AND DISTRICT
577 101.
...APPELLANT
(BY SRI. GIRISH B BALADARE.,ADVOCATE)
AND:
1. SMT M.S.LEELAVATHI
W/O LOKESH,
AGED ABOUT 55 YEARS,
Digitally signed
by SUMA B N R/O JANNAPURA VILLAGE AND POST,
Location: High MUDIGERE TALUK AND CHIKKAMAGALURU DISTRICT
Court of 577 101.
Karnataka
2. SMT. M.S.SAROJA
W/O SIDDE GOWDA,
AGED ABOUT 49 YEARS,
R/O HAVVALLI VILLAGE,
ALDURU POST,
CHIKKAMAGALURU TALUK AND DISTRICT
577101.
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RSA No. 977 of 2022
3. SMT. THIPPAMMA,
W/O LATE SIDDE GOWDA,
AGED ABOUT 82 YEARS,
R/O MAKODU VILLAGE,
JAKKANAHALLI POST,
CHIKKAMAGALURU TALUK AND DISTRICT
577101.
4. SRI. M.S. JAYARAME GOWDA
S/O LATE SIDDE GOWDA,
AGED ABOUT 52 YEARS,
R/O MAKODU VILLAGE,
JAKKANAHALLI POST,
CHIKKAMAGALURU TALUK AND DISTRICT
577101.
5. SMT. M.S.MADHU @ MANJULA,
W/O GIRISH,
AGED ABOUT 42 YEARS,
R/O MASIGADDE VILLAGE,
KADABAGERE POST,
CHIKKAMAGALURU TALUK AND DISTRICT
577 101.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF C.P.C. IS
PRAYING TO CALL FOR RECORDS AND SET-ASIDE THE JUDGMENT
AND DECREE DATED 19.02.2020 PASSED BY PRINCIPAL SENIOR
CIVIL JUDGE AND CJM, AT CHIKKAMAGALURU ON THE FILE OF FDP
No.18/2018 AND JUDGMENT AND DECREE DATED 20.04.2022
PASSED BY THE PRINCIPAL JUDGE FAMILY COURT, AT
CHIKKAMAGALURU ON THE FILE OF R.A.No.51/20022,
SUBSEQUENTLY DISMISS THE COMMISSIONER REPORT FURNISHED
BY THE COMMISSIONER IN THE INTEREST OF JUSTICE AND EQUITY
AND GRANT SUCH OTHER RELIEF'S AS THIS HON'BLE COURT DEEMS
FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE IN THE
INTEREST OF JUSTICE AND EQUITY ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 977 of 2022
JUDGMENT
This appeal is filed by the appellant who was respondent
No.3 in Final Decree Proceedings. Being aggrieved by the Order
dated 19.02.2020 passed in F.D.P. No.18/2018 on the file of
the Prl. Senior Civil Judge and CJM, Chikkamagaluru (the F.D.P.
Court) which is confirmed by judgment and Order dated
20.04.2022 in R.A.No.51/2022 on the file of Principal Judge,
Family Court, (District and Session Judge), Chikkamagaluru
(the First Appellate Court).
2. The suit in O.S.No.84/2010 was filed by the present
appellant for partition and separate possession of five items of
the suit properties all situated at Makodu Village. The said suit
was decreed holding that plaintiff is entitled for 7/36th share.
The said decree remained un-challenged. The Final Decree
Proceedings were initiated by the defendant Nos.2, 3 and 5 as
petitioners and plaintiff was arrayed as respondent No.3 before
the F.D.P. Court. That a Court Commissioner was appointed by
the F.D.P. Court to file detailed report and there was no
objections of any nature, whatsoever to the division of property
made by the Commissioner allotting the shares to the parties.
The F.D.P. Court accepting the report of the Commissioner
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closed the Final Decree Proceedings in terms of the report
submitted by the Commissioner.
3. Being aggrieved by the same appellant/plaintiff filed a
regular Appeal in R.A.No.51/2022. The only ground urged
therein is that, the Commissioner has not issued notice before
carrying out spot inspection, survey and division of the suit
schedule properties. The First Appellate Court taking note of
the contentions urged, declined to entertain the appeal and
dismissed the appeal confirming the Order passed by the F.D.P.
Court.
4. Being aggrieved by the same appellant is before this
Court.
5. Sri.Girish B Baladare, learned counsel for the appellant
reiterating the grounds urged in the memorandum of the
appeal submitted that the Commissioner ought to have issued
the notice to the appellant enabling him to be present at the
spot, non-issuance of the such notice has caused prejudice. He
further submitted that appellant has not been allotted proper
share in the suit schedule properties. He submits that non-
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issuance of the notice and division of the properties has caused
prejudice. Therefore, the present appeal.
6. Heard. Perused the records.
7. It is not in dispute that, the suit was filed at the
instance of the appellant wherein he was declared entitled for
7/36th share. The Final Decree Proceedings were initiated by
defendant Nos.2, 3 and 5. The plaintiff was arrayed as
respondent No.3, the Court Commissioner was appointed by
the F.D.P. Court. The report of the Court Commissioner along
with the sketch detailing the division of the property and
allotment of the shares to the parties were also filed before the
F.D.P. Court. The appellant has not filed any objection to the
said report. Accepting the report filed by the Commissioner
before the F.D.P. Court, F.D.P. Court proceeded to close the
proceedings. Even in the regular appeal the First Appellate
Court has taken note of the fact that appellant has not pleaded
anything with regard to carving out of the share. It is not his
case that the properties has not been divided by metes and
bounds or that the shares allotted to others were at
advantageous position than that of the share allotted to the
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appellant. Thus the First Appellate Court taking note of the fact
that in the absence of any grievance of the appellant with
regard to allotment of the shares, no grounds were made out.
Accordingly, dismissed the appeal.
In that view of the matter, no error or irregularities can
be found with the judgments passed by the Trial Court and the
First Appellate Court, no substantial question of law would arise
for consideration in this appeal. Accordingly, appeal is
dismissed.
Sd/-
JUDGE
RL
