Karnataka High Court
Sri K N Prakash vs Smt Jyoti M on 2 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1084 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1084 OF 2018 (PAR)
BETWEEN:
1. SRI K.N.PRAKASH,
S/O NAGAPPA @ NAGAJJA,
AGED ABOUT 59 YEARS,
RESIDING AT 4TH MAIN,
4TH CROSS, EAST J.C.R. EXTENSION,
CHITRADURGA-577501.
...APPELLANT
(BY SRI SIDDAPPA B.M., ADVOCATE)
AND:
1. SMT. JYOTI M.,
W/O PRASANNA Y.P.,
AGED ABOUT 32 YEARS,
RESIDING AT NO.114,
Digitally signed SATHYAM SHIVAM SUNDARAM,
by DEVIKA M 3RD MAIN ROAD,
Location: HIGH
COURT OF 2ND STAGE, GOKULAM,
KARNATAKA MYSORE - 577502.
2. SMT. G.C.RATHNAMMA,
W/O LATE K.N.MANJUNATHA,
AGED ABOUT 56 YEARS,
RESIDING AT NO.359,
LAKSHMANA NILAYA,
1ST FLOOR, 6TH CROSS,
K.H.ROAD, SARASWATHIPURAM,
MYSORE - 570009.
...RESPONDENTS
(BY SRI. H.MUJTABA, ADVOCATE FOR R1 & R2;
SRI M.T. JAGAN MOHAN, ADVOCATE FOR IMPLEADING
APPLICANTS ON IA NO.1/2021)
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RSA No. 1084 of 2018
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 17.02.2018
PASSED IN R.A.NO.54/2017 ON THE FILE OF THE I ADDL.
DISTRICT AND SESSIONS JUDGE CHITRADURGA, DISMISSING
THE APPEAL AND CONFIRMING THE ORDER DATED 08.08.2017
PASSED IN FDP.NO.8/2015 ON THE FILE OF THE PRL. SENIOR
CIVIL JUDGE AND CJM, CHITRADURGA, ALLOWING THE
PETITION FILED UNDER SECTION 20, RULE 18 R/W SECTIONS
54 AND 151 OF CPC, FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellant and the learned counsel for the
respondents.
2. This second appeal is filed against the concurrent
finding of the First Appellate Court dated 17.02.2018 passed
in R.A.No.54/2017.
3. The learned counsel for the appellant submits that
the FDP Court committed an error in partitioning the house
property and committed an error in directing the appellant to
pay an amount Rs.75,000/- to the respondents in respect of
difference of measurement allotted in favour of the appellant
and ought not to have passed such an order.
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4. The learned counsel for the respondents submits
that even the Trial Court in the final decree proceedings
ordered the appellant to pay an amount of Rs.75,000/- and
the respondents are ready to leave the amount of
Rs.75,000/- and they will not claim any excess amount of
Rs.75,000/- in respect of excess area.
5. In reply to the arguments of the learned counsel
for the respondents, the learned counsel for the appellant
submits that the Commissioner is not having any power to
partition the property as per the amended provisions of
Section 54 of CPC and the Trial Court ought not to have
accepted the Commissioner report without following the
provisions contemplated under the Partition Act and hence
the matter requires to be admitted and frame substantial
questions of law.
6. Having perused the order impugned i.e., FDP
No.8/2015 and in terms of the preliminary decree passed by
the Trial Court in O.S.No.52/2013, final decree proceedings is
initiated and preliminary decree has not been challenged.
The FDP Court appointed the Tahasildar, Chikkamagaluru
Taluk, as the Court Commissioner to effect the partition and
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separate division of landed properties and the Assistant
Executive Engineer, PWD, Chitradurga, was appointed as
Court Commissioner to effect the partition and separate
division of house properties in terms of the preliminary decree
in respect of suit schedule properties. Both the Court
Commissioners visited the spot and made division of the
landed properties to effect the partition and both the Court
commissioners have filed their respective report along with
survey sketch. Both the parties have not disputed about both
the Commissioners' report. The Court called for objections
from both the sides on the Commissioner reports. The learned
counsel on both the sides have submitted their objections to
the Survey Commissioner reports. The Court Commissioner
not partitioned the suit schedule properties item Nos.13, 15,
17, 18, 20, 21 and 22. The Court Commissioner without
pursuing the order of the Court, he has submitted his report
and the same is not tenable with respect to above properties.
Hence, ordered to re-issue Commissioners warrant with
respect to above item numbers. The Commissioner has not
partitioned the schedule properties in written, the
Commissioner warrant is half boiled report and sketch is
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untenable in law. When these objections were raised, the
Trial Court while disposing of FDP, formulated the point
whether the Commissioners reports submitted by the Court
Commissioners are acceptable and whether the petitioners
are entitled to final decree as prayed.
7. The Trial Court having considered the material
available on record, taken note that the only dispute is with
regard to division of house property item Nos.1 and 2 by the
Assistant Executive Engineer, PWD, Chitradurga as Part-A and
Part-B and also taken note of that there is no dispute with
regard to the division of suit schedule item Nos.3 to 22 by the
Court Commissioner. The Trial Court taking into note the
material on record, particularly the dimension mentioned in
Part-A and Part-B in respect of item Nos.1 and 2, taken note
of different areas in Part-A and Part-B. Part-A is bigger than
to Part-B property i.e., measuring 5.50 inches x 80 feet and
also taken note of that it is not possible to divide equally,
since both the parties have not disputed the fact that there is
an existence of beam in between both the parts. Hence, the
Trial Court comes to the conclusion that it is not possible to
divide item Nos.1 and 2 equally. The Trial Court considered
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the difference of the area which was allotted as Part-A and
Part-B and also taken note of that the construction of the
house was made in the year 1962 and sheet house was
constructed in the year 2010 and assessed the value of the
RCC ground floor house and sheet house of both Part-A and
Part-B and vacant site, calculated the amount and arrived at
a conclusion of Rs.75,000/-, which is payable by the
respondent to the petitioners by way of compensation and
passed an order.
8. This order has been challenged before the First
Appellate Court. The First Appellate Court having considered
the grounds urged in the appeal memo and also taking note
of the material available on record, formulated the point
whether the order of the lower Court is capricious, vexatious,
perverse and untenable in the eye of law. Having considered
the material on record, the First Appellate Court comes to the
conclusion that admittedly the suit came to be decreed
holding that plaintiff Nos.1 and 2 together are entitled for half
share and the defendant is entitled to half share in all the suit
schedule properties. The final decree proceedings has been
initiated by virtue of preliminary decree. The First Appellate
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Court also taken note of with regard to item Nos.3 to 22 and
there is no dispute with regard to the said items are
concerned and only dispute is with regard to item Nos.1 and 2
i.e., the house property. In paragraph No.20, the First
Appellate Court extracted the reasoning given by the Trial
Court while partitioning the property as Part-A and Part-B and
taken note of that Part-A property is bigger than the Part-B
property and considering the material on record, the Trial
Court also rightly comes to the conclusion that there is no
possibility of dividing the property equally in respect of item
Nos.1 and 2 and taken note of the area which has been
assessed value with regard to excess is concerned and
ordered for payment of Rs.75,000/-.
9. Now, the learned counsel for the respondents
submits that the respondents are ready to leave Rs.75,000/-
in respect of excess area and they will not claim any amount
from the appellant herein. Inspite of the said submission, the
learned counsel for the appellant submits that the property
may be auctioned. The said submission cannot be accepted
when the house property i.e., item Nos.1 and 2 are
partitioned and even at the time of partitioning the property
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also taken note of the measurement of each part and apart
from that, discussion was made in the order of the Trial Court
that there was a beam and in view of the said beam, it cannot
be divided equally and hence a fair partition was made before
the Trial Court.
10. The learned counsel for the appellant would
contend that this partition is not in accordance with amended
provision of Section 54 of CPC. The said submission cannot
be accepted for the reason that the Commissioner has given
the report with regard to feasibility of partition. The Court
has accepted the report given by the Commissioner taking
note of the fairness in giving the report considering the
excess area of house property and the very contention that
the Commissioner has no power to partition the property
cannot be accepted and the Court only taken the assistance
and report is submitted. The Trial Court based on the
Commissioner report only taken note of feasibility of
partitioning the property. When such being the case, I do not
find any ground to interfere with the findings of the Trial
Court and the First Appellate Court. The Trial Court while
answering point Nos.1 and 2, in detail discussed the same in
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paragraph No.13 and accepted the Commissioner report and
hence it does not require any interference. The First
Appellate Court while re-appreciating the material on record,
discussed that the Court Commissioner is not technically
expert in preparing the sketch, but taken note of that,
admittedly the Assistant Executive Engineer, PWD,
Chitradurga, is an independent body, who is a government
employee, he is neither interested in the appellant nor in the
respondents.
11. The learned counsel for the appellant contend that
FDP is not in accordance with the Partition Act and when such
ground is raised, the Court has to look into the material on
record, whether fairness is adopted in partitioning the
property or not. The Court has taken the assistance of the
Assistant Executive Engineer while partitioning the property
and accepted the report considering the fairness of the report
of the Court Commissioner. When such being the case, the
very contention that partitioning the property is not in
accordance with the Partition Act, cannot be accepted. It is
learnt that the appellant herein is squatting on the house
property and not allowing the respondents to take share by
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metes and bounds in terms of FDP and the Court has to take
note of the conduct of the appellant for considering the lis
between the parties as he is squatting on the property.
Hence, I do not find any ground to admit the appeal and
frame substantial questions of law invoking Section 100 of
CPC.
12. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
JUDGE
MD
