Karnataka High Court
Sri. Mallappa S/O Shivappa Sangapur vs Kumari. Sattevva D/O Siddappa Sangapur on 1 July, 2024
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NC: 2024:KHC-D:8938
RSA No. 100921 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100921 OF 2023 (PAR/POS-)
BETWEEN:
SRI MALLAPPA
S/O SHIVAPPA SANGAPUR
AGE: 42 YEARS,
OCC: AGRICULTURE,
R/O. TODALABAGI,
TQ: JAMKHANDI,
DIST: BAGALKOT.
...APPELLANT
(BY SRI MRUTYUNJAY TATA BANGI &
SRI S.S.YALIGAR, ADVOCATE)
AND:
1. KUMARI SATTEVVA
D/O SIDDAPPA SANGAPUR
AGE: 11 YEARS,
OCC: STUDENT,
Digitally signed SINCE MINOR REPRESENTED BY
by SAROJA
HANGARAKI HER NATURAL MOTHER
RESPONDENT NO.2,
Location: HIGH
COURT OF
KARNATAKA 2. SMT. SHRIDEVI
DHARWAD W/O SIDDAPPA SANGAPUR
BENCH AGE: 31 YEARS,
DHARWAD OCC: HOUSEWIFE,
BOTH ARE R/O. TODALBAGI,
TQ: JAMKHANDI,
DIST: BAGALKOT.
3. SRI SIDDAPAP
S/O SHIVAPPA SANGAPUR
AGE: 43 YEARS,
OCC: AGRICULTURE,
R/O. TODALABAGI,
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NC: 2024:KHC-D:8938
RSA No. 100921 of 2023
TQ: JAMKHANDI,
DIST: BAGALKOT.
4. SMT. NIMBEVVA
W/O SHIVAPPA SANGAPUR
AGE: 69 YEARS,
OCC: HOUSEWIFE,
R/O. TODALABAGI,
TQ: JAMKHANDI,
DIST: BAGALKOT-587201.
5. SRI SUKANT
S/O BUJAPPA BELAGALI
AGE: 73 YEARS,
OCC: AGRICULTURE,
R/O. NAGNUR,
TQ: JAMKHANDI,
DIST: BAGALKOT-587201.
...RESPONDENTS
(BY SRI S.M.KALWAD, SRI JAYANANT KAMBLI &
SRI ASHOK L. ANGADI, ADVOCATES FOR R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.03/2019
DATED 17.02.2021 PASSED BY THE PRINCIPAL SENIOR CIVIL
JUDGE, JAMKHANDI AND THE JUDGMENT AND DECREE DATED
07.02.2019 PASSED BY THE ADDITINAL CIVIL JUDGE, JAMKHANDI
IN F.D.P. NO.06/2017 AND DISMISSING THE FDP BY ALLOWING THE
PRESENT APPEAL WITH COSTS THROUGHOUT IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:8938
RSA No. 100921 of 2023
JUDGMENT
The present second appeal is filed under Section 100
of Code of Civil Procedure, 19081 by the respondent No.2
challenging the order dated 17.02.2021 passed in RA
No.03/2019 by the Court of Principal Senior Civil Judge,
Jamkhandi2 and the order dated 07.02.2019 passed in FDP
No.06/2017 by the Court of the Additional Civil Judge and
JMFC, Jamkhandi3.
2. The parties herein are referred to as per their
ranking before the Trial Court for the sake of convenience.
3. The relevant facts necessary for consideration
of the present appeal are that pursuant to the decree for
partition passed in OS No.26/2015, the plaintiffs preferred
FDP No.06/2017. The Trial Court in the said final decree
proceedings appointed the Assistant Director of Land
Records, Jamkandi as the Court Commissioner to carry out
the Commission work by demarcating the property by
Hereinafter referred to as the 'CPC'
Hereinafter referred to as the 'First Appellate Court'
Hereinafter referred to as the 'Trial Court'
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metes and bounds in terms of the preliminary degree. The
Commissioner has visited the spot and filed report
together with the hand sketch. The respondent Nos.1 to 3
in the said proceedings filed objections to the said report.
The respondent No.4 in the final decree proceedings is the
purchaser from the respondents. It is recorded by the Trial
Court that the respondent No.4 did not object to the report
filed by the Court Commissioner. Considering the
objections filed by respondent Nos.1 to 3, the Trial Court
allowed the petition, accepted the report of the Court
Commissioner and directed for drawing up of the final
decree in terms of the said Commissioner's report.
preferred RA No.03/2019. The First Appellate Court,
considering the objections put forth by the said
respondents in the appeal and having regard to the
undertaking given by the petitioners/ plaintiffs, modified
the order by granting access which was marked as
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EFGHJI. The relevant portion of the order of the First
Appellate Court is extracted herein for the reference:
The appeal U/Order XLI rule 1 of the
Code of Civil Procedure filed by the appellant is
hereby partly allowed.
Consequently the judgment and decree
of the trial court in FDP No.6/17 passed on
07.02.2019 is hereby modified to the extent of
path way with a width of 8 feet from the south
of the block shown as FG in EFGHJI in the
sketch.
The final decree shall be modified to the
extent of path way shown above.
Draw fresh decree accordingly.
Office to send back the trial court
records along with copy of this judgment.
5. The learned counsel for the appellants would
vehemently contend that the access given by the First
Appellate Court which has been marked as EFGHJI would
be detrimental to the purchaser inasmuch as it reduced
the boundary of the property that was conveyed to him.
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6. Per contra, learned counsel for the respondents
justifies the order passed by the First Appellate Court.
7. It is forthcoming that the subsequent purchaser
is respondent No.4 in the final decree proceedings. It is
pertinent to state here that the respondent Nos.1 to 3 has
already conveyed the property in respect of which the
access has been restricted.
8. Further, it is relevant to note that the First
Appellate Court has modified the demarcation made by the
Commissioner on the basis of which the decree has been
passed, only pursuant to a memo that has been filed by
the respondent Nos.1 to 3 therein, who are the petitioners
in the final decree proceedings and by the said memo, the
petitioners had undertaken not to object to any
easementary right. The use of the pathway has been
granted pursuant to the said undertaking given by the
respondent Nos.1 to 3.
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9. It is forthcoming that the respondent Nos.1 to 3
in the final decree proceedings have preferred RA
No.03/2019 and being aggrieved by the order passed by
the First Appellate Court, only respondent No.2 has filed
the present appeal.
10. In view of the fact that the order passed by the
First Appellate Court was practically emanating out of a
consensus between the parties, the question of the
present appellant subsequently challenging the same does
not arise.
11. The appellants have failed in demonstrating
that any substantial question of law arises for
consideration in the present second appeal. Hence, the
above appeal is dismissed at the stage of admission itself
as being devoid of merit.
Sd/-
JUDGE
PJ
CT:GSM
