1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 30 TH DAY OF JANUARY, 2013 BEFORE THE HON BLE MR.JUSTICE B.S.PATIL R.S.A.No.941/2010 BETWEEN I.C.VISHWAKUMAR S/O I.R.CHANDRASHEKARAIAH ADVOCATE 6TH CROSS, J.C.R.EXTENSION, CHITRADURGA.... APPELLANT (By Sri B.M.SIDDAPPA, ADV.) AND 1. SMT I.C.LATHADEVI W/O P.H.MAHESHA AGED ABOUT 41 YEARS RAGHAVENDRA PROVISION STORES FIRST MAINR AOD, NEAR CITY BUS STOP VIDHYA NAGAR DAVANAGERE 577 005 2. SMT I C GAYATHRI DEVI W/O G S RAJASHEKHARAPPA R/AT ISAMUDRA VILLAGE BHARAMASAGARA HOBLI CHITRADURGA TALUK AND DSITRICT. 3. SMT I C VIAHALAKSHI W/O K B SHARANAPPA R/AT HOUSE NO.696/14,KALLESHWARA NILAYA BEHIND WATER TANK, RIGHT SIDE OF ITI COLLEGE DAVANAGERE 577 005
2 4. SMT I.C.GEETHANJALI W/O S R YOGESHWARAIAH HOUSE NO. 3682/A-36, BEHIND VANI RICE MILL, TARALABU NAGARA, DAVANAGERE 577 005 5. I.C.SIDDESHWARA S/O I.R.CHANDRASHEKHARAIAH 6TH CROSS J.C.R. EXTENSINO, CHITRADURGA. 6. I.C.DIVAKARA SHARMA S/O I.R. CHANDRASHEKARAIAH 6TH CROSS J.C.R EXTENSION, CHITRADURGA. 7. I.C.SHIVAPRASAD S/O I.R. CHANDRASHEKARAIAH 6TH CROSS J.C.R EXTENSION, CHITRADURGA.... RESPONDENTS (By Sri./Smt : REVANNA BELLARY, ADV. FOR R2-5 Sri RAVENNA BELLARY, ADV. FOR1) RSA FILED U/O 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:8.2.2010 PASSED IN RA.NO.4/2008 ON THE FILE OF THE CIVIL JUDGE (SR.DN) CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 12.12.2007 PASSED IN FDP NO.22/1996 ON THE FILE OF THE II ADDL. CIVIL JUDGE (JR.DN) & JMFC., CHITRADURGA, ALLOWING THE PETITION FILED UNDER ORDER 20 RULE 18 R/W SEC.151 OF CPC., THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT 1. This regular second appeal arises out of the order passed in Final Decree Proceedings No.22/1996.
3 2. FDP.No.22/1996 was instituted by the respondents herein pursuant to the preliminary decree for partition passed in O.S.No.929/1991 which attained finality upon the disposal of the regular second appeal. As per the preliminary decree, all the respondents who are none other than the sisters of the appellant herein were held entitled for 1/8 th share in the three items of the properties. Item Nos.1 & 2 are agricultural lands and item No.3 is house property. 3. On an earlier occasion, the final decree proceedings instituted were allowed directing division of the property by accepting the report of the Court Commissioner vide order dated 14.12.2006. This was challenged by the appellant in Regular Appeal No.35/2006. The Appellate Court set aside the division effected and remanded the matter vide order dated 08.09.2007. Thereafter, the Trial Court passed a fresh order on 12.12.2007 by accepting the report of the Court Commissioner and directing division of all the three items of the properties as per the proposal made by the Court Commissioner. This was again challenged by the appellant in Regular Appeal No.4/2008. The lower Appellate Court has dismissed the appeal on 08.02.2010, thereby confirming the judgment passed by the
4 Trial Court. In this background, this regular second appeal is filed challenging both the judgments. 4. This appeal has been admitted to consider the following substantial questions of law:- i) Whether both the Courts are right in law in accepting the survey report in the absence of identity of the property with number, and phode and schedule? ii) Whether both the Courts are right in law in giving power to the Commissioner to allot shares in their individual names though it is the duty of the Court to allot the shares to the parties to suit as per the division made by the Deputy Commissioner though same is contrary to Section 54 and Order 20 Rule 18 CPC? iii) Whether both the Courts are right in law in not considering Ex.P10 while accepting the report of the advocate- Commissioner in respect of item No.3 of the suit schedule property? 5. I have heard Sri B.M.Siddappa, learned counsel appearing for the appellant and Sri Revanna Bellary, learned counsel appearing for the respondents.
5 6. At the outset, it has to be observed that this litigation is pending since 1991. The dispute is only with regard to the method and manner in which the property has to be divided as the preliminary decree passed has attained finality long ago. 7. The main contention of the learned counsel for the appellant is that the Courts below seriously erred in law in blindly accepting the division effected by the Court Commissioner who had virtually allotted different portions to each of the sharers as the same is opposed to the provisions contained under Section 54 CPC as amended. In this connection, he has placed reliance on the judgment of this Court in the case of SANGA REDDY VS. SMT.BASAMMA & OTHERS ILR 2004 KAR 3664. It is his next contention that the subdivision of the land bearing Sy.Nos.51/1 & 51/2 as effected by the survey authorities had been cancelled at the instance of all the parties and therefore the Court Commissioner could not have identified and located an extent of 6 acres 30 guntas in Sy.No.51/2 i.e. item No.2 property for the purpose of fixing the boundaries and effecting divisions amongst the sharers as per the preliminary decree and therefore the division made by the Court Commissioner is unsustainable. Lastly, he has
6 contended that insofar as the house property item No.3 is concerned, though the property extract as per Ex.P10 discloses that its measurement is only 51 X 20, the Court Commissioner has proceeded on the basis that the property measured 127 X 153 and has proceeded to divide the property on that basis. He points out that though objection was raised in this regard, both the Courts below have lost sight of the same. 8. Learned counsel for the respondents strongly supports the concurrent findings recorded by both the Courts below and submits that the respondents who are the sisters of the defendant appellant herein have been denied of their legitimate share in the family property for the last more than 23 years. His submission is that on one pretext or the other, the appellant is protracting the final decree proceedings. 9. On consideration of the respective contentions in the light of the judgments rendered by both the Courts below and the materials on record, I find that both the Courts below have categorically found that though the Court Commissioner in his report had submitted the details of division of the properties to be allotted to different sharers of different bits, as there was no objection with regard to the actual value of each strip of land
7 proposed to be allotted to different sharers, there was no justification to discard the report of the Court Commissioner only on the ground that he has demarcated in his report the allotments to be made to different sharers. In fact, while accepting the report, the Trial Court has bestowed its attention to all important aspects. Only after being satisfied that the proposal made by the Court Commissioner was just, fair and equitable, the Trial Court has accepted the same which has been affirmed by the lower Appellate Court, after applying its mind to this aspect of the matter also. 10. Merely because the Court Commissioner, while submitting his report, also suggests the allotment to be made in favour of different sharers, the same cannot be found fault with, unless the Court abdicates its function and blindly accepts the same and makes allotment only in accordance with the report submitted by the Court Commissioner without applying its mind to all other aspects and without considering the objections, if any, raised. 11. In the instant case, the Trial Court has not blindly accepted the proposal made by the Court Commissioner. It has given opportunity to both parties and as both parties did not
8 make any grievance regarding the portion that was proposed to be allotted to them and about its value, the Courts below have rightly accepted the same. Therefore, there is no violation of the provisions contained under Section 54 CPC. 12. As regards the second point urged by the learned counsel for the appellant, it is not in dispute that preliminary decree is passed directing partition of the properties effecting 1/8 th share to all the sharers in Sy.No.51/2 measuring 6 acres 30 guntas. It is also not in dispute that all the parties approached the DDLR and requested him to cancel the previous phodi effected dividing Sy.No.51 into Sy.Nos.51/1 & 51/2. As per their request, the DDLR had cancelled the earlier phodi effected. Therefore, when the Court Commissioner visited the spot, he found that the earlier phodi effected had been cancelled and hence he interacted with the Surveyor, the Technical Assistant and the Ex-Officio Deputy Director of Land Records to ascertain the same. Thereafter, he measured the entire Sy.No.51 and after locating 6 acres 30 guntas of land in respect whereof preliminary decree had been passed has divided the same into different bits in terms of the preliminary decree and submitted his proposal. There was no objection with regard to the location
9 and identification of this 6 acres 30 guntas of land at the time when the Court Commissioner inspected and measured the property. It is only at the stage when the report was sought to be accepted, an objection in this regard was raised before the Court. Both the Courts below have held that this objection was untenable. 11. It needs only to be observed at this stage that as on the date the Court Commissioner visited the spot, the phodi having been cancelled, he was required to locate 6 acres 30 guntas of land in the undivided Sy.No.51. He has done that exercise after measuring the entire land and it is in this 6 acres 30 guntas that the share of each sharers is identified and proposed to be allotted. This exercise undertaken by the Court Commissioner cannot be found fault with. The decree passed by the Civil Court cannot be rendered inexecutable only because the phodi earlier undertaken had been cancelled by the Survey Department. It becomes the duty of the Court to effectuate its verdict and execute the decree by locating and identifying the suit property. The Court Commissioner has indeed done that exercise. If, later on, any phodi is to be undertaken, whereupon any addition or deletion from the identified portion of the
10 property becomes inevitable, then a fresh cause of action arises to the parties to agitate the same. That cannot be a ground to deny the execution of the decree. 12. Insofar as the third contention with regard to the house property is concerned, learned counsel for the appellant is right in bringing to the notice of the Court that the Courts below erred in not taking note of the actual measurement of the house property. In fact, the plaint schedule and the preliminary decree passed do not give the measurement of the house property in item No.3. Ex.P10 which is the property assessment extract maintained by the City Municipal Council, Chitradurga, mentions it as 52 X 20. In such an event, how the Court Commissioner could proceed on the basis that the house property measured 127 X 153 is not understandable. Both the Courts below have not applied their mind to this aspect of the matter. They have not considered the objections raised by the appellant in this regard. Therefore, this contention of the appellant deserves to be accepted. 14. In the result and for the foregoing, this appeal is partly allowed. The division effected insofar as item Nos.1 & 2 is concerned, the appeal is dismissed. Insofar as item No.3
11 house property is concerned as the division effected by both the Courts below by accepting the Court Commissioner s report does not take note of the actual measurement of the house property and the objection raised by the appellant in this regard, the same is set aside. The matter is remitted back to the Trial Court for fresh consideration of the objection raised by the appellant in this regard. The Trial Court is directed to ascertain the actual measurement of the house property in item No.3 and direct division of the same in accordance with the preliminary decree as expeditiously as possible. It is needless to observe that the division effected in respect of item Nos.1 & 2 by the Courts below as per the Court Commissioner s report would enure to the benefit of all the parties. sd/- JUDGE PKS