Karnataka High Court

Dattatraya vs Shivaji And Ors on 25 July, 2024

                           -1-




          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

        DATED THIS THE 25TH DAY OF JULY, 2024

                        BEFORE

        THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200367 OF 2023 (PAR/POS)


BETWEEN

DATTATRAYA S/O LATE GOVINDRAO
AGE ABOUT : 62 YEARS,
OCC: RETD. GOVT. SERVANT
R/O. H.NO.1-889/12A,
LAL BAHADDUR SHASTRI NAGAR,
NEAR JEWARGI ROAD,
RAILWAY UNDER BRIDGE,
KALABURAGI-585102.

                                         ...APPELLANT
(BY SRI RAVI B. PATIL, ADVOCATE)

AND:


1.   SHIVAJI S/O GOVINDRAO
     AGE: 72 YEARS,
     OCC: RETD. EMPLOYEE OF DCC BANK
     R/O. MAKA LAYOUT JEWARGI COLONY
     KALABURAGI-585102.
2.   SMT. ASHA W/O LATE TANAJI PAWAR
     AGE: 55 YEARS, OCC: HOUSEHOLD
     R/O. H. NO.1-889/12
     LAL BAHADDUR SHASTRI NAGAR
     NEAR JEWARGI ROAD,
     RAILWAY UNDER BRIDGE
     KALABURAGI-585102.

3.   NEHA D/O LATE TANAJI PAWAR
     AGE: 31 YEARS, OCC: PVT. JOB
     R/O. H. NO.1-889/12
     LAL BAHADDUR SHASTRI NAGAR
                           -2-




     NEAR JEWARGI ROAD,
     RAILWAY UNDER BRIDGE
     KALABURAGI-585102.

4.   NIKHEEL S/O LATE TANAJI PAWAR
     AGE: 29 YEARS, OCC: PVT. JOB
     R/O. H. NO.1-889/12
     LAL BAHADDUR SHASTRI NAGAR
     NEAR JEWARGI ROAD,
     RAILWAY UNDER BRIDGE
     KALABURAGI-585102.

5.   SMT. CHAMPABAI
     W/O LATE KRISHNAJI RAO PAWAR
     AGE: 71 YEARS, OCC: HOUSEHOLD
     R/O. NEAR BALAJI NAGAR
     NEAR RAM MANDIR
     OMERGA DIST. OSMANABAD-413501
     MAHARASHTRA STATE.

     SMT. KASTURIBAI
     W/O VINAYAK RAO SALUNKE
     SINCE DECEASED BY HER LR'S.

6.   ANAND
     S/O VINAYAKRAO SALUNKE
     AGE: 53 YEARS, OCC: CONTRACTOR,
     R/O. H.NO.B-3
     ASHRAYA SOCIETY HOTAGI ROAD,
     SOLAPUR-413501.

7.   DR. ARVIDN
     S/O VINAYAKRAO SALUNKE
     AGE: 51 YEARS,
     OCC: MEDICAL PRACTITIONER
     R/O. H. NO.B-3
     ASHRAYA SOCIETY HOTAGI ROAD
     SOLAPUR-413501.

8.   SMT. MANGALA
     W/O ANKUSH MOTE
     AGE: 61 YEARS, OCC: DISTRICT JUDGE
     DISTRICT COURT
     AURANGABAD-431001.
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9.   SMT. MAHISHA
     W/O DILIP CHAWAN
     AGE: 54 YEARS, OCC: TEACHER
     R/O MANISHA DEEP
     NEW BALAJI NAGAR ST COLONY
     OMERGA, DIST. OSMANABAD-413501.

10. SMT. MANJU W/O DIGAMBAR ZAMBARE
    AGE: 52 YEARS, OCC: BEAUTICIAN
    R/O BEHIND HOTEL NAGALAND
    MANGALVEDHEKAR NAGAR
    PANDHAPUR DIST. SOLAPUR-413001.

11. SMT. VIMAL @ SUREKHA
    W/O SURESH JADHAV
    AGE: 72 YEARS, OCC: HOUSEWIFE
    R/O H.NO.20 SARVODAYA
    HOUSING SOCIETY INDIRA
    NAGAR BIJAPUR ROAD
    SOLAPUR-413001.

     SMT. PRABHAVATI
     W/O BANDIPANT JADHAV
     SINCE DECEASED BY HER LR'S.

12. RAJA S/O BANDOPANT
    AGE: 44 YEARS, OCC: SERVICE
    R/O. NEAR RAM MANDIR KASABA
    PETH TEMBURNI
    TQ. MADHA, DIST. SOLAPUR-413001.

     BALU S/O BANDOPANT JADHAV
     SINCE BY LR'S.


13. SMT. SRASWATI
    W/O LATE BALU ALIAS LAXMIKANTH
    AGE: 34 YEARS, OCC: HOUSEHOLD
    R/O. NEAR RAM MANDIR
    KASABA PETH TEMBURNI
    TQ. MADHA, DIST. SOLAPUR-413001.


14. MUKUND S/O BANDOPANT JADHAV
    AGE: 40 YEARS, OCC: NIL,
                               -4-




    R/O. FLAT.NO.102
    1ST FLOOR TANISH RESIDENCY
    ALANDI ROAD SAMARTH NAGAR
    DIGHI PUNE-111045.

15. GANESH S/O BANDOPANT JADHAV
    AGE: 33 YEARS, OCC: SERVICE
    R/O. FLAT. NO.102 1ST FLOOR
    TANISH RESIDENCY ALANDI ROAD
    SAMARTH NAGAR DIGHI
    PUNE-111045.

                                             ....RESPONDENTS


(BY SRI BASAVARAJ KAREDDY, ADV. FOR R2 TO R4;
   SRI GANESH S. KALABURGI, ADV. FOR R5;
   SRI D.P. AMBEKAR, ADV. FOR C/R6, R7 TO R10, R12, R13,
   C/R14, AND R15;
   SRI RAVI G. MADABHAVI ADV. FOR C/R11
   R1 SERVED)


     THIS RSA IS FILED U/S. 100 OF THE CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE
FIRST APPELLATE COURT IN R.A. NO.57/2022 BY THE I ADDL.
DISTRICT JUDGE AT KALABULARGI CONSEQUENTIALLY TO SET
ASIDE   THE   ORDER   DATED     11.08.2022   PASSED     IN   FDP
NO.6/2017     ACCEPTING   THE       REPORT   OF   THE    COURT
COMMISSIONER BIFURCATING THE SCHEDULE PROPERTY AS
PER THE REPORT AS ILLEGAL AND ARBITRARY.


     THIS APPEAL COMING ON FOR ADMISSION, HAVING
BEEN HEARD AND RESERVED ON 25.06.2024, COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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                       JUDGMENT

One Kasturibai instituted suit in O.S.No.59/2008,

seeking for partition and separate position of 1/7th share

in the suit schedule property. Initially the suit of the

plaintiff was dismissed. Appeal preferred by the plaintiff

was allowed and plaintiff-Kasturibai was allotted share in

the suit schedule properties. One Prabhavati who was

defendant No.8 also filed appeal against the judgment

and decree in O.S. No.59/2008, the said appeal was also

allowed and the judgment and decree in O.S. No.59/2008

was set aside, allotting 1/7th share in the suit schedule

properties confirmed in RSA No.200329/2014 connected

with RSA No.200328/2014. FDP No.6/2017 was preferred

by the appellant along with respondent Nos.1 to 4 seeking

final decree. The Court Commissioner was appointed, the

Court Commissioner on visiting the spot filed report, which

was accepted by the FDP Court.

2. The appellants, who were the petitioners in the

final decree, appealed before the First Appellate Court,

contending that the extent of land held as per Pahani/ROR

is 21 acres 14 guntas and as per the preliminary decree

the extent of land held by the family is 18 acres 14

guntas, therefore, the measurement of the land in

question is not in conformity with the measurement as

per the Akarband and the objections filed by the appellant

to the Court Commissioner report has not been considered

and the acceptance of commissioner's report is without

providing proper opportunity. The First Appellate Court

held that though the Trial Court has not assigned reasons

for overlooking the objections, it has given justice to the

cause and dismissed the appeal preferred by the

appellants.

3. Learned counsel for the appellant urged the

following grounds:

(i) That the appellant had filed objections to

the Court Commissioner's report, but the

same is not considered by both the Courts.

(ii) No opportunity has been provided by the

Trial Court to cross examine the Court

Commissioner.

(iii) As per the Court Commissioner's report the

extent shown in Akarband and Pahani are

not tallied with each other and the Court

Commissioner has divided the property on

the basis of the extent shown in RTC.


     (iv)     The   property    allotted    by   the   Court

              Commissioner      to    the    appellant    is

encroached by the third parties to the

extent of 1 acre 15 guntas.

4. Learned counsel submits that Akarband is the

actual document and earlier Akarband indicated 17 acres

34 guntas whereas, the Pahani/RTC is indicating 18 acres

14 guntas and the report submitted by the Commissioner

on basis of the Pahani/RTC ought not to have been

accepted by the Final Decree Court.

5. Per contra, learned counsel appearing for the

respondent submits that:

(i) The objections filed by the appellant has

been considered by the Trial Court and there

is no illegality or irregularity in the report,

hence, questioning the commissioner's

report would not arise.

(ii) That in the earlier suit in O.S.No.241/1998,

there was a compromise in FDP No.21/2005

the said compromise was without including

the daughters of Govinda Rao-the original

propositus and in the said compromise, the

appellant herein was allotted the northern

portion of the property, which is the same

property allotted to the appellant by

reducing the extent of land earlier it was 4

acres 4 guntas as per the compromise as

daughters were not included and now it is

the same land.

(iii) That the appellant had never objected with

regard to Akarband or with regard to road

and now in order to deprive the shareholders

from the decree has raised the frivolous

objections.

6. Having heard the learned counsel for the

parties at lis, the only point that arises for consideration

in this appeal is:

"Whether the Courts below were justified in accepting the Commissioner's report?"

7. Admitted fact is that widow of Krishna Ji, one

Champa Bai filed a suit for partition O.S. No.241/1998,

compromise was entered in FDP No.21/2005, wherein the

appellant was allotted the northern part (blue colour),

which was voluntarily accepted, the very portion is now

marked for allocation by the Commissioner. Against the

final decree order, only Dattattreya assailed before the

First Appellate Court and before this Court as well. The

other petitioners who are respondent Nos.6 and 7 have

not assailed the order of the final decree. To answer the

contention of the appellant that he was not heard while

considering the Commissioner's report the material, more

particularly the judgment and decree of the Courts below

have been perused.

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8. The objections filed by the petitioners-

appellants herein to the Commissioner report was

considered by the Trial Court as is evident from paragraph

Nos.7 and 8. On consideration, the Trial Court was of the

opinion that the Court Commissioner has carried out a

proper commission work and overruled the objections of

the petitioners-appellant and accepted the Commissioner

report.

9. The First Appellate Court held that the

preparation of 11 E sketch and correction of RTC will be as

per the Akarband, Akarband is the preliminary data and

RTC is the secondary one and the objection raised by the

petitioners-appellants were considered by the Trial Court.

Akarband prevails over the extent of RTC and the

Akarband shall be corrected in the RTC, moreover, the

boundary prevails over the extent of land in the RTC, the

boundaries in the Commissioner's report and the

boundaries mentioned in the suit property are one and the

same. The Akarband is a critical document in Karnataka

Land Record System. It is primarily a land revenue

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document providing a brief overview of a land's

characteristics. It provides a geometrical representation

to the total extent of the property. The Akarband

document is pivotal, particularly when the land is being

divided or when there is a change in ownership. It is an

important document for the properties associated with

agricultural land, as it gives complete representation of

the attributes of the land.

10. Having an Akarband can serve as legal proof,

proving land ownership and also helping in resolving

property dispute and in legal proceedings. Akarband

shows basic information like particular survey number,

hissa number, village and taluka details and total extent

of land of the property. Additional attributes about the

land parcel, like the amount of kharab, (waste land) and

how much of the land can be cultivated are also available.

At the same time, it also contains information about the

water sources available for the land whether water comes

from the government or other irrigation sources is also

mentioned. RTC is another important document in

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Karnataka Land Records Management System. While

Akarband focuses on physical aspects of the land, the RTC

is also known as the Pahani offers a broader view of the

land's legal and agriculture status. The RTC includes:

(i) Details of the landowner and the land

measurement.

(ii) The type of crops grown in the last

agriculture year.

(iii) The area under cultivation and the type of

land.

(iv) Information on mortgages taken.

(v) Tax details and whether any taxes are due.

11. In the essence, the Akarband is a

complementary document to the RTC and survey map. It

is serving its unique purpose in land registration, property

documentation, land transfer and land records

management. The objection raised by the petitioner is

that the measurement of the land in question as appearing

in record of rights is not in conformity with the

measurement of Akarband. According to the appellant,

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Pahani is showing 18 acres 14 guntas and Akarband is

indicating 17 acres 34 guntas. The suit property indicated

18 acres 14 guntas. The petitioners-appellants never

objected to the extent of land shown in the suit property.

Now the Commissioner has allocated the lands as per the

measurements shown in the Commissioner's report. The

appellants are unable to impress upon the Court as to how

the Commissioner's report is not acceptable. The appeal

of the appellants needs to be dismissed on the following

grounds:

i. The objection raised by the appellants to the

Commissioner's report regarding the

variation in Akarband and Pahani is

unsustainable for the simple reason that the

petitioners- appellants never objected to the

measurement of the suit property and as

well as the boundaries which are indicated in

the suit property.

ii. The boundaries mentioned in the Court

Commissioner's report and the boundaries

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mentioned in the suit property are one and

the same.

iii. The law is well settled that the boundaries

prevail over the extent of RTC. The

boundaries of the suit property has never

been questioned by the appellant. For the

first time, by filing objections, it is

contended that the Akarband and pahani not

in conformity.

iv. The property now as per the Court

Commissioner's report, which is sought to be

allotted to the appellant in an FDP

No.21/2005 arising out of partition suit in

O.S.No.241/1998, the appellant herein was

allotted the Northern portion, the very

portion which is now allotted by the

Commissioner, now the appellant cannot

contend that the Commissioner work carried

out and the Commissioner report is not

proper. The Courts below have rightly

assessed the entire oral and documentary

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evidence warranting no interference as

stated supra.

12. The Trial Court and the First Appellate Court,

on considering the Commissioner's report and finding it

proper, have accepted the report, there is no perversity in

the findings of facts recorded by the Courts below and

accordingly, this Court pass the following: