Karnataka High Court
Sharenik Kumar Genitive Father vs Suvarnabai W/O Tatyasheb Kasturi on 7 March, 2025
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RSA No. 101013 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 101013 OF 2019 (INJ-)
BETWEEN:
1. SHRI SHARENIK KUMAR GENITIVE FATHER
SHRI TAVANAPPA AND ADOPTED FATHER
SHRI GANGARAM KASTURI,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: GOKAK, TQ: GOKAK, DIST: BELAGAVI,
NOW RESIDING AT H.NO.101,
SUCESS HERITAGE,
STATE BANK NAGAR COLONY,
PANCHAVATI, PASHAN, PUNE-411008.
2. SHRI ABHINANAND S/O. HIRACHAND KASTURI,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O. H.NO.2695, RAVIVAR PETH,
GOKAK, TQ: GOKAK, DIST: BELAGAVI.
NOW RESIDING AT FL.NO.604,
MOHANKUMAR BLDG. G. FLORENTINE,
B SHELAR
NR. SOPAN BUILDING,
Digitally signed by
MOHANKUMAR B
GHORPADIGAON, PUNE-411001.
SHELAR
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH
SHRI TAVANAPPA S/O. SHANTAPPA KASTURI,
SINCE DECEASED BY HIS LR'S
3. SHASHIKALA W/O. TAVANAPPA KASTURI,
AGE: 78 YEARS, OCC: HOUSEHOLD,
R/O: PUNE (MAHARASHTRA).
NOW RESIDING AT FL. NO.303,
NAYAN HOUSING SOCIETY, ZCS COLONY,
BHOSALE NAGAR, PUNE.
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RSA No. 101013 of 2019
4. SHRI HIRACHAND S/O. SHANTAPPA KASTURI,
SINCE DECEASED BY LR.
4A) RAVI S/O. HIRACHAND KASTURI,
AGE: 46 YEARS, OCC: PRIVATE SERVICE,
R/O. NO.1818, 42ND CROSS,
KUMARASWAMY LAYOUT, BENGALURU-560 078.
...APPELLANTS
(BY SRI. CHETAN MUNNOLI, ADVOCATE)
AND:
SMT. SUVARNABAI W/O. TATYASHEB KASTURI,
SINCE DECEASED BY HER LR'S
1. SHRI BHARAMAKUMAR
S/O. TATYASAHEB KASTURI,
AGE: 42 YEARS OCC: SERVICE,
R/O. CTS NO.2695, RAVIVAR PETH,
GOKAK, TQ: GOKAK, DIST: BELAGAVI.
SMT. KASTURIBAI W/O. DHANAPPA
@ PADMARAJ VANDUDRI,
SINCE DECEASED BY HER LR'S
SHRI. DHANPAL
S/O. PADMAPPA @ PADMARAJ VANKUKRI,
SINCE DECEASED BY HIS LR'S
2. SHRI BHARATESH S/O. DHANAPAL VANKUDRI,
AGE: 48 YEARS, OCC: BUSINESS,
R/O: OLD MUNICIPALITY ROAD,
SHOP PADMAPRASAD, ILAK,
TQ: HUNAGUND, DIST: BAGALKOT-587125.
3. SHRI BHARAMAKUMAR
S/O. DHANPAL VANDAKUDRI @ VANKUDRI,
AGE: 48 YEARS, OCC: BUSINESS,
R/O: OLD MUNICIPALITY ROAD,
SHOP PADMAPRASAD, ILAK,
TQ: HUNAGUND, DIST: BAGALKOT-587125.
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RSA No. 101013 of 2019
4. SMT. SAVITRI W/O. BHARAMAKUMAR KASTURI,
AGE: 58 YEARS, OCC: HOUSEHOLD,
R/O: H.NO.2696, JAIN GALLI,
RAVIVAR PETH, GOKAK.
5. SMT. LEELAVATHI PARSHWANTH BARAGALI,
AGE: 58 YEARS, OCC: BUSINESS,
R/O: HUNGUNDI, TQ: JAMAKHANDI,
DIST: BAGALKOT.
6. SMT. VIMALA W/O. BHARAMAPPA BURSHI,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O: TERDAL, DIST: BAGALKOT.
7. SMT. VIJAYASHREE W/O. ABHINANDAN GUNGADI,
AGE: 43 YEARS, OCC: HOUSEHOLD,
R/O: C/O. BRAHMANATH STEELS,
MAHAVEER GALLI, JAIN PETH, HUBBALLI.
8. SMT. KASHERABAI W/O. SHANTARAJ HOOLI,
AGE: 37 YEARS, OCC: HOUSEHOLD,
R/O: ILKAL, TQ: HUNAGUND, DIST: BAGALKOT.
GANGARAM @ APPAJJA RAMACHANDRA KASTURI,
DECEASED BY HIS LR'S
SMT. KASHIBAI D/O. BHUJANG SVANJI,
SINCE DECEASED BY HER LRS R6
SMT. SONUBAI W/O. KRISHNA WADKAR,
SINCE DECEASED BY LR'S
9. SHRI KRISHNA S/O. DHODIBA WADKAR,
AGE: 86 YEARS, OCC: NIL,
R/O: 1602, JALAL GALLI, GOKAK,
TQ: GOKAK, DIST: BELAGAVI.
10. SHRI GAJANAN S/O. KRISHNA WADKAR,
AGE: 45 YEARS, OCC: BUSINESS,
R/O: 1602, JALAL GALLI, GOKAK,
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RSA No. 101013 of 2019
TQ: GOKAK, DIST: BELAGAVI.
11. SHRI MAHESH S/O. KRISHNA WADKAR,
AGE: 42 YEARS, OCC: NIL,
R/O: 1602, JALAL GALLI, GOKAK,
TQ: GOKAK, DIST: BELAGAVI.
12. SHRI RAMESH S/O. KRISHNA WADKAR,
AGE: 40 YEARS, OCC: BUSINESS,
R/O: 1602, JALAL GALLI, GOKAK,
TQ: GOKAK, DIST: BELAGAVI.
13. SHRI JYOTIBA @ JYOTIPRAKASH
KRISHNA WADKAR,
AGE: 38 YEARS, OCC: NIL,
R/O: 1602, JALAL GALLI, GOKAK,
TQ: GOKAK, DIST: BELAGAVI.
14. SMT. MAMATA D/O. KRISHNA WADKAR,
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O: 1602, JALAL GALLI, GOKAK,
TQ: GOKAK, DIST: BELAGAVI.
15. SMT. ANITA KRISHNA WADKAR,
AGE: 35 YEARS, OCC: HOUSEHOLD,
R/O: 1602, JALAL GALLI, GOKAK,
TQ: GOKAK, DIST: BELAGAVI.
16. SMT. SUNITA D/O. KRISHNA WADKAR,
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O: 1602, JALAL GALLI, GOKAK,
TQ: GOKAK, DIST: BELAGAVI.
SHRI RAMCHANDRA CHINTAMANI KASTURI,
SINCE DECEASED BY HIS LR'S
17. SMT. SHANTABAI W/O. RAMACHANDRA KASTURI,
AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
R/O: H.NO.2881, JALAL GALLI,
RAVIWAR PETH, GOKAK, DIST: BELAGAVI.
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RSA No. 101013 of 2019
CHINTAMANI @ RAJU
RAMACHANDRA KASTURI,
SINCE DECEASED BY HIS LR
18. MUDDAVVA @ SHOBA
D/O. RAMACHANDRA KASTURI,
AGE: 54 YEARS, OCC: HOUSEHOLD WORK
R/O. H.NO.2881, JALAL GALLI, RAVIWAR PETH,
GOKAK, DIST: BELAGAVI.
MOTICHAND CHINTAMANI KASTURI,
SINCE DECEASED BY HIS LR'S
19. SMT. SUNANDA W/O. MOTICHAND KASTURI,
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
R/O: JAIN PETH, HUBBALLI.
20. SHRI BAPU BHUPAL KASTURI,
AGE: 50 YEARS, OCC: TRADE,
R/O: H.NO.1999, KORE GALLI,
SHAHPUR, BELAGAVI.
21. SHRI. CHANDRAKANT BHUPAL KASTURI,
AGE: 47 YEARS, OCC: TRADE,
R/O. H.NO.1999, KORE GALLI,
SHAHPUR, BELAGAVI.
22. SHRI. RAMACHANDRA BHUPAL KASTURI,
AGE: 45 YEARS, OCC: TRADE,
R/O. H.NO.1999, KORE GALLI,
SHAHPUR, BELAGAVI.
23. SHRI. DHANYAKUMAR BHUPAL KASTURI,
AGE: 39 YEARS, OCC: TRADE,
R/O. H.NO.1999, KORE GALLI,
SHAHPUR, BELAGAVI.
24. SHRI RAJENDRA BHUPAL KASTURI,
AGE: 39 YEARS, OCC: TRADE,
R/O. H.NO.1999, KORE GALLI,
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RSA No. 101013 of 2019
SHAHPUR, BELAGAVI.
25. SMT. SHANKUNTALA W/O. RATNAPPA GOGI,
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
R/O. H.NO.1999, KORE GALLI, SHAHPUR, BELAGAVI.
26. SMT. PRAMILA W/O. PRABHAKAR DASURKAR,
AGE: 41 YEARS, OCC: HOUSEHOLD WORK,
R/O. BOMBAY, C/O. PRABHAKAR GANESH DASURKAR,
29-G, KHOTACHIWADI, AMBESWAR BHUVAN,
PAHILA MALA B.NO.12, GIRGAON, BOMBAY-4.
27. SMT. GANGUBAI W/O. BHUPAL KASTURI,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O. H.NO.1999, KORE GALLI, SHAHPUR, BELAGAVI.
28. VAISHALI D/O. TAVANAPPA KASTURI,
AGE: 53 YEARS, OCC: SERVICE,
R/O. PUNE (MAHARASHTRA).
29. GOUTAM S/O. TAVANAPPA KASTURI,
AGE: 49 YEARS, OCC: SERVICE,
R/O. PUNE (MAHARASHTRA).
...RESPONDENTS
(BY SRI. SANGRAM S. KULKARNI, ADVOCATE FOR R1 & R3-R8;
SRI. SHRIHARSH A. NEELOPANT, ADVOCATE FOR R11 & R13;
R2, R12, R23 ARE SERVED UNREPRESENTED;
R9 & R21 DECEASED; R10 HELD SUFFICIENT;
R14-R15 NOTICE DISPENSED;
R16-R22 & R24-R29 DISPENSED WITH)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC 1908 PRAYING TO THE JUDGMENT & DECREE PASSED
BY THE XII ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BELAGAVI, SITTING AT GOKAK DATED 18.09.2019 IN
R.A.NO.218/2014 CONFIRMING THE ORDER AND DECREE PASSED BY
THE PRINCIPAL SENIOR CIVIL JUDGE, GOKAK, DATED 27.09.2014 IN
F.D.P. NO.10/1981, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 101013 of 2019
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is preferred by the respondents in FDP
No.10/1981 challenging the judgment and decree dated
18.09.2019 in R.A.No.218/2014 on the file of the XII Additional
District and Sessions Judge, Belagavi, sitting at Gokak (for
short "the First Appellate Court") dismissing the appeal and
confirming the judgment and decree dated 27.09.2014 in FDP
No.10/1981 on the file of the Principal Senior Civil Judge,
Gokak (for short "the FDP Court") allowing the petition under
Order XX Rule 18 of the Code of Civil Procedure, 1908 (for
short "CPC").
2. For the sake of convenience, the parties are
referred as per their rank before the FDP Court.
3. It is the case of the petitioners in FDP No.10/1981
that the Trial Court has passed preliminary decree in
O.S.No.44/1966. The petitioners were plaintiffs in the said suit
and have given half share in suit schedule 'G' and 'H'
properties. It is also stated in the petition that the judgment
and decree passed in O.S.No.44/1966 has reached finality in
RSA No.468/2003 and RSA No.467/2003. Thereafter the
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petitioners presented FDP No.1/2010 under Order XX Rule 18
of CPC for drawing up the final decree pursuant to the
preliminary decree in O.S.No.44/1966, which reached finality in
view of the judgment passed by this Court in RSA No.468/2003
and RSA No.467/2003.
3.1. After service of notice, the respondent entered
appearance and contested the matter. In the meanwhile, the
Trial Court has appointed Court Commissioner for division of
the properties. The FDP Court, based on the report of the Court
Commissioner, allowed the petition under Order XX Rule 18 of
CPC and feeling aggrieved by the same, the petitioners have
presented R.A.No.218/2014 on the file of the First Appellate
Court and same was resisted by the respondents/petitioners in
FDP No.10/1981. The First Appellate Court, by its judgment
and decree dated 18.09.2019 dismissed the appeal
consequently, confirmed the judgment and decree in FDP
No.10/1981. Feeling aggrieved by the same, the respondents in
FDP No.10/1981 have preferred this Regular Second Appeal.
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4. I have heard Sri. Chetan Munnolli, learned counsel
appearing for the appellants and Sri. Sangram S Kulkarni,
learned counsel appearing for the respondents.
5. Sri.Chetan Munnolli, learned counsel appearing for
the appellants submitted that the Trial Court has committed an
error in modifying the Court Commissioner Report in respect of
agricultural land and same is not permissible in law and
therefore, sought for interference of this Court. It is the
submission of the learned counsel appearing for the appellant
that the said erroneous judgment passed by the Trial Court has
been confirmed by the First Appellate Court without exercising
jurisdiction under Order XLI Rule 31 of CPC and therefore,
sought interference of this Court. It is the grievance of the
appellants herein that both the Courts below have committed
serious error in not accepting the Court Commissioner report in
respect of agricultural lands where the commissioner report has
not mentioned the valuation relating to schedule 'G' and 'H'
agricultural properties and accordingly, sought for interference
of this Court.
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6. Per contra, Sri.Sangram S Kulkarni, learned counsel
appearing for the respondent sought to justify the impugned
judgment and decree passed by the Courts below and
contended that the Trial Court by exercising the discretion for
equitable distribution of the land in question, as the
defendants/appellants herein have parted with the portion of
the land in question during the pendency of the suit and the
said aspect of the matter was considered by the Trial Court,
which is rectified in equitable distribution between the
petitioners and the defendants, and therefore, sought for
confirmation of the judgment and decree in FDP No.10/1981.
7. In the light of the submissions made by the learned
counsels appearing for the parties, it is not in dispute that
O.S.No.44/1966 was filed by the plaintiff seeking partition and
separate possession in respect of the suit schedule properties
which came to be decreed against which, the petitioners have
preferred FDP No.10/1981 under Order XX Rule 18 of CPC.
During the proceedings before the FDP Court, the
Commissioner was appointed for equitable distribution of the
properties. It is also not in dispute that the Commissioner has
been examined and cross-examined by the respective parties.
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The FDP Court after considering the material on record,
particularly, by looking into the report of the Commissioner and
in order to ensure that both the parties shall get equal extent,
has passed the impugned order taking into consideration the
sale of the portion of the land by the defendants/appellants
herein to an extent of 27 Acres 7 Guntas and in that view of the
matter, the Trial Court has interfered with the portion of the
Commissioner report for equitable distribution of the land since
the defendants have sold the portion of the land as mentioned
above. In that view of the matter, since the suit is of the year
1966 and the Final Decree Proceedings are of the year 1981, I
am of the view that no interference is called for at this juncture
insofar as division of the properties is concerned in the light of
the preliminary decree in O.S.No.44/1966.
8. The First appellate Court, after considering the
material on record, taking into consideration the equitable
distribution of the properties in favour of the appellants and
respondents herein, has rightly confirmed the same and no
interference is called for in this appeal insofar as agricultural
lands are concerned. Accordingly, the appellants herein have
not made out any grounds to interfere in this appeal under
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Section 100 of CPC to formulate substantial question of law.
Accordingly, the appeal stands dismissed at the stage of
admission itself.
9. In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive for
consideration and are disposed of accordingly.
Sd/-
(E.S.INDIRESH)
JUDGE
YAN
CT-MCK
