IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.965/2015 (PAR) BETWEEN:
SMT.KALLAMMA SINCE DEAD BY LR H.G.MAHADEVAPPA S/O MURIGEPPA AGED ABOUT 62 YEARS R/O KATHALAGERE VILLAGE CHANNAGIRI TALUK – 577 213 DAVANAGERE DISTRICT … APPELLANT (BY SRI R.GOPAL, ADV.) AND:
1. SHEKARAPPA AGED ABOUT 62 YEARS S/O DHANAPPA SINCE DEAD BY LRs 1(a) SAVITHRAMMA W/O LATE SHEKARAPPA AGED MAJOR R/O KENGANAHALLI HONNALI TALUK DAVANGERE DISTRICT – 577 217 2. SMT.MANGALAMMA AGED ABOUT 50 YEARS W/O LATE JAYAPPA 3. SRI GANESHA S/O LATE JAYAPPA AGED MAJOR 4. KUM. SHEELA LATE JAYAPPA AGED MAJOR 5. NAGARAJA S/O LATE JAYAPPA AGED MAJOR R1 TO R5 ARE R/O KENGALAHALLI VILLAGE HONNALI – TQ, DAVANAGERE DISTRICT – 577 217 6. SMT.INDIRAMMA W/O LATE KAREGOWDA AGED ABOUT 46 YEAR 7. SRI SANTOSH S/O KAREGOWDA AGED MAJOR 8. KUMARI SANGEETHA D/O LATE KAREGOWDA AGED MAJOR THE ABOVE R-6, 7 AND 8 ARE R/O KENGALAHALLI VILLAGE HONNALI TALUK – 577 217 DAVANAGERE DISTRICT 9. SRI CHANDRAPPA S/O DHANAPPA AGED ABOUT 47 YEARS R/O KENGALAHALLI HONNALI TALUK – 577 217 DAVANAGERE DISTRICT 10. GANAGAMMA W/O NOT KNOWN AGED ABOUT 60 YEARS R/O BEERAGONDANAHALLI HONNALI TALUK – 577 217 11. SMT.GIRIJAMMA W/O BASALINGAPPA SINCE DEAD BY LR R-12 ALREADY ON RECORD 12. SRI ONKARAPPA S/O BASALINGAPPA AGED ABOUT 42 YEARS NATIVE OF KENGALAHALLI NOW R/O KUNEBELAKERI HARIHARA TALUK – 577 601 …RESPONDENTS (BY SRI B.M.HALASWAMY, ADV. FOR R2, R5-R7, R9 AND R12; VIDE ORDER DATED 19.07.2016 R12 IS LR OF DECEASED R11;
R1(a), R3, R4, R8 AND R10 ARE SERVED, UNREPRESENTED) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 23.02.2015 PASSED IN R.A.NO.11/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, HARIHAR, ALLOWING THE APPEAL AND SETTING ASIDE THE ORDER DATED 25.09.2012 PASSED IN FDP NO.4/2000 ON THE FILE OF THE CIVIL JUDGE AND JMFC, HONNALI, ALLOWING THE PETITION FILED UNDER SECTION 54 OF CPC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal of plaintiff arises out of judgment and decree dated 23.2.2015 passed by the Senior Civil Judge at Harihar in R.A.No.11/2013. By the impugned judgment and decree, the first appellate court allowed the appeal, set aside the final decree dated 25.9.2012 passed by the Civil Judge and JMFC., Honnali, in F.D.P.No.4/2000.
2. Brief facts of the case are as follows:
One Basamma and Kallamma filed O.S.No.200/1991 before the Civil Judge (Jr.Dn.), Honnali for partition and separate possession of their half share in the suit schedule properties. The said suit was filed against Shekarappa, Jayappa, Karegowda, Chandrappa, Gangamma, Shanthamma, Girijamma and Onkarappa.
3. Second plaintiff Kallamma was the daughter of first plaintiff Basamma. The present appellant is the son of second plaintiff Kallamma. During the pendency of the suit, Basamma died. The suit was decreed on 19.8.1999.
4. Challenging the said preliminary decree defendants filed R.A.No.102/2002 before the Senior Civil Judge, Harihara. The first appellate court vide judgment and decree dated 15.3.2004 allowed R.A.No.102/2002 and dismissed plaintiffs’ suit.
5. Plaintiff No.2 carried the judgment and decree of the first appellate court before this Court in R.S.A.No.631/2004. When R.S.A. No.631/2004 was pending before this Court, second plaintiff Kallamma also died. The present appellant was brought on record as her legal representative on the basis of the Will executed by her in his favour.
6. This court on 30.5.2011 allowed R.S.A. No.631/2004, reversed the judgment and decree passed in R.A.No.102/2002 and confirmed the judgment and decree passed by the trial court.
7. Before the defendants filing R.A.No.
102/2002, on 15.04.2000 Kallamma filed F.D.P.No.4/2000 before the trial court. The judgment and decree in R.S.A. No.631/2004 passed by this Court was not challenged by the defendants. Therefore, that attained finality.
8. After the judgment in R.S.A.No.631/2004 on 30.05.2011, the final decree court proceeded with the final decree proceedings. On 27.3.2012, Taluka Surveyor was appointed as the Court Commissioner in respect of ‘A’ schedule landed property and an Advocate was appointed as Court Commissioner in respect of ‘B’ schedule properties.
9. On 13.8.2012, Taluka Surveyor/Court Commissioner filed his report in respect of ‘A’ schedule properties. On 21.8.2012, Advocate/Court Commissioner submitted his report in respect of ‘B’ schedule properties proposing the division of shares.
10. The defendants did not file any objections to the Commissioners’ reports. The trial court on 25.9.2012 accepted the reports of the Commissioners and ordered to draw final decree. By virtue of said order, on 2.11.2012 final decree was drawn.
11. Challenging the final decree passed by the final decree court in F.D.P.No.4/2000, the defendants filed R.A.No.11/2013. The first appellate court by the impugned judgment and decree allowed the appeal and set aside the final decree on the sole ground that to draw final decree, there must be a preliminary decree and the preliminary decree passed by the trial court was reversed by the first appellate court on 9.3.2004 in R.A.No.102/2002, therefore, there was no preliminary decree to draw final decree. Therefore, it was held that the final decree petition was premature one.
12. This Court after hearing both side admitted the appeal to consider the following substantial question of law:
“In the light of on 30.5.2011 High Court in RSA No.631/2004 restoring the preliminary decree for partition passed by the trial court whether the First Appellate Court was justified in reversing the final decree dated 25.9.2012 passed by the trial Court on the ground that there was no preliminary decree as on the date of filing of final decree proceedings and therefore, the final decree proceedings were premature?
13. There is no dispute that after a long drawn litigation, the rights of the plaintiff were finally determined by this Court on 27.3.2012. The above noted order of events goes to show that when final decree petition was filed, the preliminary decree passed by the trial court was still in force and that was not set aside by the first appellate court. By the time the first appellate court disposed of R.A.No.11/2013 on 23.2.2015, this Court on 30.05.2011 in R.S.A.No.631/2004 had reversed the judgment and decree passed in R.A.No.102/2012 and restored the preliminary decree passed by the trial court. Apparently the trial court passed the final decree order on 25.9.2012, referring to the judgment in R.S.A.No.631/2004.
14. Under these facts and circumstances, the first appellate court’s finding that as on the date of the final decree petition in F.D.P.No.4/2000, there was no preliminary decree, therefore, the final decree petition or final decree order of the trial court were premature is perverse and unsustainable.
15. The order of the trial court shows that both the Commissioners submitted their report proposing the division of the properties. None of the parties filed any objections to the Commissioners’ reports. The trial court found that the proposals made by the Commissioners are equitable one.
16. It is the settled principle of law that Court Commissioner’s report forms part of the record by virtue of Order XXVI Rule 10 CPC. Under such circumstances, unless it was shown to the trial court that the proposal of Commissioner for division of shares was not equitable or unfair, there was no impediment for the trial court to accept the reports and to pass the final decree.
17. Having regard to that, the trial court accepted the Commissioners’ reports and ordered to draw final decree. Thus there was no error in the judgment and order passed by the trial court in F.D.P.No.4/2000. The first appellate court was not justified in reversing the final decree passed by the trial court. Therefore, the substantial question of law is answered in negative. The appeal is allowed.
The judgment and decree dated 23.2.2015 passed by the Senior Civil Judge at Harihar in R.A.No.11/2013, is hereby set aside. The final decree order dated 25.9.2012 passed by the Civil Judge and JMFC., Honnali, in F.D.P.No.4/2000 is hereby confirmed.
Having regard to the relationship of the parties, no order as to costs.
Sd/- JUDGE KNM/-