Karnataka High Court
Smt. Pavitra W/O Sunil Yaraddi vs Smt. Yamanawwa W/O Venkappa Machakanur ... on 21 November, 2024
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NC: 2024:KHC-D:17003
RFA No. 100483 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 100483 OF 2023 (FDP-)
BETWEEN:
1. SMT. PAVITRA
W/O. SUNIL YARADDI,
AGE: 47 YEARS,
OCC: HOUSEHOLD WORK,
R/O: CHIPPALKATTI,
TALUK: RAMDURG,
DISTRICT: BELAGAVI- 591126.
2. SMT. SAKKUBAI
W/O. VITHAL MEKATHI,
AGE: 43 YEARS,
OCC: HOUSEHOLD WORK,
R/O: CHIPPALKATTI,
TALUK: RAMDURG,
DISTRICT: BELAGAVI - 591126.
3. SRI. RAGHAVENDRA
ASHPAK S/O. GIRIYAPPA UDAPUDI,
KASHIMSA
MALAGALADINNI AGE: 42 YEARS,
OCC: AGRIUCLTURE,
R/O: CHIPPALKATTI,
TALUK. RAMDURG,
Location:
HIGH DISTRICT: BELAGAVI- 591126.
COURT OF
KARNATAKA
4. SRI. VITHAL GIRIYAPPA UDAPUDI,
AGE: 41 YEARS,
OCC: AGRICULTURE,
R/O: CHIPPALKATTI,
TALUK: RAMDURG,
DISTRICT: BELAGAVI- 591126.
5. SMT. KASHAWWA GOVINDAPPA UDAPUDI,
AGE: 52 YEARS,
OCC: HOUSEHOLD WORK,
R/O: CHIPPALKATTI,
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NC: 2024:KHC-D:17003
RFA No. 100483 of 2023
TALUK: RAMDURG,
DISTRICT: BELAGAVI -591126.
6. SMT. RUKMINI TAMANNA JAMBAGI,
AGE: 36 YEARS,
OCC: HOUSEHOLD WORK,
R/O: CHIPPALKATTI,
TALUK: RAMDURG,
DISTRICT: BELAGAVI -591126.
7. SMT. VIJAYALAKSHMI BALAPPA JAMBAGI,
AGE: 34 YEARS,
OCC: HOUSEHOLD WORK,
R/O: CHIPPALKATTI,
TALUK: RAMDURG,
DISTRICT: BELAGAVI-591126.
...APPELLANTS
(BY SRI. H. M. DHARIGOND, ADVOCATE)
AND:
SMT. YAMANAWWA
W/O. VENKAPPA MACHAKANUR
SINCE DECESED BY HER LRS.
1. SMT. SHOBHA SUBHAS PATIL,
AGE: 48 YEARS,
OCC: HOUSEHOLD WORK,
R/O: ARAKERI,
TALUK: BILAGI,
DISTRICT: BAGALKOT- 587205.
2. SRI. VITHAL VENKAPPA MACHAKANUR,
AGE: 46 YEARS,
OCC: AGRICULTURE,
R/O: CHIPPALKATTI,
TALUK: RAMDURG,
DISTRICT: BELAGAVI-591126.
3. SMT. LAXMIBAI
W/O. SIDDAPPA DESAI,
AGE: 53 YEARS,
OCC: AGRICULTURE,
R/O: BAGALKOT,
TALUK: BAGALKOT,
DISTRICT: BAGALKOT- 587205.
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NC: 2024:KHC-D:17003
RFA No. 100483 of 2023
4. SRI. GOUDAPPA GOVINDAPPA UDAPUDI,
AGE: 70 YEARS,
OCC: AGRICULTURE,
R/O: CHIPPALKATTI,
TALUK: RAMDURG,
DISTRICT: BELAGAVI- 591126.
5. SRI. MALLANAGOUDA BALAPPA NADAGOUDER,
AGE: 76 YEARS,
OCC: AGRICULTURE,
R/O: KUNNAL,
TALUK: RAMDURG,
DISTRICT: BELAGAVI-591126,
NOW AT H.NO. 2457-7/3,
MAIN ROAD,
VIJAYANAGAR II STAGE,
BENGALURU- 560040.
...RESPONDENTS
(BY SRI. S.S. PATIL AND SRI. MAHANTESH R. PATIL, ADVOCATES
FOR R1 TO R3;
SRI. SACHIN C. KULKARNI, SRI. VINAYAK S. KULKARNI AND
SRI. PRAVEEN G. KULKARNI, ADVOCATES FOR R5;
NOTICE TO R4 IS HELD SUFFICIENT)
-- -- --
THIS RFA FILED UNDER SECTION 96 OF CPC, PRAYING TO,
CALL FOR RECORDS, ADMIT THE APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE DATED 24.07.2023 PASSED IN FDP NO.
4/2014 PASSED BY THE SENIOR CIVIL JUDGE, RAMDURG, BY
ALLOWING THE PRESENT APPEAL IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:17003
RFA No. 100483 of 2023
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
1. This appeal is filed against the final decree drawn in
FDP No.4/2014 on the file of Senior Civil Judge,
Ramdurg. The respondents in the aforementioned
final decree proceedings are before this Court
challenging the aforementioned final decree.
2. The admitted factual possession is the suit was filed
in O.S.No.5/2008 on the file of Senior Civil Judge,
Ramdurg. The said suit was decreed initially
awarding 1/20th share in the suit properties.
3. The operative portion of the decree passed in the suit
would read as under:
"Suit of the plaintiffs is partly
decreed. Plaintiffs are entitled each
1/20th share in the suit properties"
4. Thereafter, the review petition is filed by the
plaintiffs in the said suit. The said petition in
NC: 2024:KHC-D:17003
RP.No.1/2010 is allowed vide order dated
11.12.2012. The operative portion of the said order
in the review petition would read as under:
ORDER
i. Review petition filed under Order
47 Rule-1 of CPC is allowed.
ii. Petitioners are entitled for partition
and separate possession of 1/5th
share each in the suit properties.
iii. Draw Preliminary Decree
accordingly.
5. The preliminary decree passed by the Trial Court is
not questioned by the members of the family of the
plaintiffs. The purchaser of the properties, who is one
of the defendants (Defendant No.4), filed an appeal
in RFA No.4125/2013. The said appeal is dismissed
vide judgment dated 11.09.2015 and the plaintiffs
filed final decree proceedings. The final decree was
finally drawn, and the said decree was called in
question by filing RFA No. 100404/2022.
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6. The said RFA No.100404/2022 was allowed and the
matter was remitted to the Trial Court to draw fresh
final decree after affording an opportunity to all the
parties.
7. It was noticed by this Court that, while remanding
the matter earlier, that 3 acres 35 guntas of land
was sold, and some portion was acquired and these
aspects were not taken into consideration while
drawing the final decree. Accordingly, the same was
set aside and the matter was remitted to the Trial
Court for fresh consideration.
8. After remand, the present appellants participated in
the proceedings. A Commissioner was appointed to
consider the feasibility of division. The Commissioner
submitted a report. The present appellants filed
objections to the report, but did not cross-examine
the Commissioner to substantiate the contention in
the objection.
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9. The Trial Court noticed that in the said report the
property in Survey No.149/3 measuring 3 acres is
sought to be allotted to the petitioners. Accepting the
said report, the property is allotted and liberty is
reserved to the respondents to seek partition and
separate possession of their share in the remaining
properties, except for Survey No.149/3 measuring 3
acres.
10. Aggrieved by the aforementioned final decree, the
appellants are before this Court.
11. Learned counsel for the appellants, Sri. H. M.
Dharigond, has urged that the final decree passed by
the Trial Court is contrary to the preliminary decree.
He argued that the Trial Court does not have
jurisdiction to go beyond the preliminary decree. It
is also his contention that, valuable property is
allotted to the share of the contesting respondents in
this case, and less valuable properties are left
undivided to be divided separately at the instance of
NC: 2024:KHC-D:17003
the appellants in an appropriate application to be
filed before the court. Thus, he would contend that
the decree is contrary to the law.
12. He would also contend that the preliminary decree
would mandate the division of each of the suit
properties, and without dividing the properties in
each of the suit properties, the Final Decree Court
could not have drawn the final decree.
13. Learned counsel appearing for the contesting
respondents would contend that the objection filed to
the report of the Court Commissioner regarding
feasibility of division is not substantiated either by
cross-examining the Court Commissioner or by
producing materials. It is also his contention that
the argument that valuable property is allotted to the
share of the plaintiffs and less valuable properties
are kept joint without separate division is not
substantiated by leading evidence. It is also his
contention that, there is no mandate in the
NC: 2024:KHC-D:17003
preliminary decree to divide each survey number and
to allot shares to each of the parties in each survey
numbers. Thus, he would pray for dismissal of the
appeal.
14. This Court has considered the contentions raised at
the Bar and perused the records. The following points
would arise for consideration:
i. Whether the preliminary decree
mandated division of the properties in
each survey number and allotment of
shares to each of the parties to the
proceeding?
ii. Whether the plaintiffs established that
the property allotted to the share of
contesting respondents is more
valuable?
15. The contention that there has to be a division in each
of the survey numbers and each of the parties to the
proceedings has to be allotted a share in each survey
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numbers has to be rejected, as that is not mandated
in the preliminary decree.
16. The preliminary decree, as extracted above,
mandates that each of the plaintiffs is entitled to a
1/5th share and not each of the party to the suit is
entitled to a 1/5th share in each survey number.
Even in the review order, that is not the mandate of
the Court to effect division in each of the survey
numbers by allotting each party a share in each
survey number.
17. The law relating to the division of properties is well
settled. Whenever the court effects a partition, it
has to take into consideration the feasibility of
division. As far as possible, the fragmentations have
to be avoided or, if it is not possible, have to be kept
at bare minimum. As far as possible, the division of
properties should be effected in such a way that each
party gets a compact piece of land. If that aspect is
kept in mind, this Court does not find any merit in
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the contention raised by the appellants that each
survey numbers has to be divided and each party
has to be allotted a share in each survey number.
18. The said contention, if accepted, would not serve the
interest of any of the parties to the proceedings, as it
would create more fragments in the suit properties
while putting parties to more inconvenience.
19. As far as the contention that the property allotted to
the share of contesting respondents is more valuable
than the properties left undivided, this Court does
not find any material to accept the said contention.
Appellants have not led any evidence before the Trial
Court to substantiate their claim regarding mismatch
in the valuation.
20. Though Sri. H. M. Dharigond, learned counsel for the
appellants, would place reliance on the judgment of
the Coordinate Bench of this Court in K. Sundar Rao
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and others vs. K. Ramakrishna Rao1. This Court
is of the view that the said judgment does not come
to the aid of the appellants, on the other hand, the
said judgment comes to the aid of the respondents.
In the said judgment, the Co-ordinate Bench of this
Court has held that the final decree cannot be passed
contrary to the mandate of the preliminary decree.
21. This Court is of the view that the final decree passed
by the Trial Court is in tune with the mandate of the
preliminary decree. The preliminary decree passed in
this case does not say that each survey number has
to be divided and each party to be allotted a share in
each survey number. When that is not the mandate
of the preliminary decree, the judgment relied upon
by the learned counsel appearing for the appellants
does not come to the aid of the appellants.
ILR 2007 KAR 4308
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22. For the reasons recorded, this Court does not find
any merit in the appeal filed by the appellants.
The Appeal is dismissed.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
RKM,GAB
CT:ANB
