IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE L NARAYANA SWAMY AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR R.F.A. NO.1078 OF 2017 (PAR) BETWEEN:
1. SMT. PUSHPA W/O ANANTHA BHANDARY AGED 63 YEARS, 2. MISS NALINI AGED 56 YEARS 3. MISS USHADEVI M AGED 53 YEARS, CHILDREN OF LATE CHANDAYYA BHANDARY ALL ARE RESIDING AT NEAR NEW BUS STAND NULLIPPADI, KASARGOD TOWN KASARGOD, KERALA STATE-671121.
…APPELLANTS (BY SRI. G.H.RAVIKUMAR, ADVOCATE FOR SRI. SACHIN B.S, ADVOCATE) AND:
1. SRI KRISHNA GOPAL S/O LATE BABU BHANDARY AGED 77 YEARS RESIDING AT NEAR BHOJA RAO BRINDGE KODIALBAIL, MANGALURU-3 (SINCE DEAD BY LRS) 1(a). MRS. GEETHA GOPAL W/O LATE SRI KRISHNA GOPAL AGED 70 YEARS R/AT ROSHAN 5-6-602 BHOJA RAO LANE KODAILBAIL MANGALURU-522503.
2. MR. ROSHAN KUMAR S/O LATE SRI.KRISHNA GOPAL AGED 42 YEARS R/A ROSHANN 6-6-602 BHOJA RAO LANE KODIALBAIL MANGALURU-522503. ...RESPONDENTS (BY SRI. B.V. KRISHNA-ADVOCATE FOR R1(A) R-2 SERVED) **** THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.3.2017 PASSED IN FDP NO.14/2014 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE, MANGALURU, D.K, ALLOWING THE PETITION FILED UNDER ORDER XX RULE 12 AND 16 OF CPC., R/W SEC.151 OF CPC., THIS APPEAL COMING ON FOR ADMISSION THIS DAY, ASHOK G. NIJAGANNAVAR J., DELIVERED THE FOLLOWING:
JUDGMENT The appellants have challenged the judgment and decree dated 16.03.2017 passed in FDP No.14/2014 filed under Order XX Rules 12 and 16 read with Section 151 of CPC.
2. Reiterating the contention made in the memorandum of appeal the learned counsel for the appellants strenuously contended that the impugned judgment passed by the Court below is contrary to the provisions of Section 54 of CPC. The Court Commissioner is not entitled to effect partition of the properties. The survey proceedings were conducted in the absence of appellants and the Court below has committed error in accepting the Commissioner’s Report by its impugned judgment which is in violation of principles of natural justice. The Commissioner without giving any share in the joint family houses to the appellants has submitted the report to the Court by allotting all the house properties to the respondents in the schedule properties. Though this contention was taken up before the Court below, the same was not considered. As such, the impugned judgment passed by the lower Court is liable to be set aside.
3. Learned counsel for the respondents submitted that there is no error whatsoever in the Commissioner’s Report. The Court Commissioner has allotted excess land measuring 0.75 cents to the plaintiffs though they are entitled for only 37.25 cents as grouped in the plaint schedule properties. No injustice has been caused to the appellants. Despite service of notice by the Court Commissioner, the appellants have deliberately remained absent with an intention to protract the litigation. Thus, the contention of the appellants regarding violation of principles of natural justice does not hold good. There are no valid grounds for setting aside the judgment/order passed in FDP No.14/2014.
4. The main grounds urged are that the Court has committed error in accepting the Commissioner’s report. The Court Commissioner who conducted the survey has allotted the shares to the parties in the Final Decree Proceedings, which is contrary to law. The appellants counsel had issued a letter requesting the Court Commissioner to postpone the survey to be conducted on 13.05.2016, but the learned Court Commissioner has conducted the survey without giving an opportunity to the appellants. The Court Commissioner has no power to allot the shares to the parties in the Final Decree Proceedings.
5. As could be seen from the impugned order, the Court Commissioner has conducted the survey and allotted the shares. The said report is accepted and it is observed by the Court below that the contentions raised by the appellants to set aside the report of the Court Commissioner are not valid. The counsel for the appellants has no grievance about the demarcation of the properties and the division of shares made in respect of the schedule properties. The only grievance is that the appellants have not been given an opportunity to participate in the survey proceedings, and the Commissioner has unilaterally allotted the shares to the parties.
6. It is an admitted fact that the Court Commissioner had issued notice to the appellants to appear for the survey proceedings, but all the appellants have remained absent. The appellants have written a letter to postpone the survey proceedings, but the survey was conducted by the Court Commissioner in their absence. The Commissioner’s report disclose that the schedule ‘A’ property is allotted to petitioners namely, Mrs. Geetha Gopal and Roshan Kumar;
schedule ‘B’ properties given to Pushpa, Nalini and Ushadevi M. This clearly indicates that the properties are allotted by the Court Commissioner himself to the parties to the proceedings, which is not proper and correct.
7. For the aforesaid reason we are of the view that there are valid grounds for making necessary modification in the order passed in FDP proceedings dated 18.06.2016. Hence we pass the following ORDER The appeal is partly allowed.
The order regarding acceptance of the Court Commissioner’s report for allotment of shares by mentioning the names of the parties i.e., schedule ‘A’ property to Mrs. Geetha Gopal and Roshan Kumar and schedule ‘B’ properties to Pushpa, Nalini and Usha Devi alone is set aside. The Commissioner’s report for specific allotment of shares to parties stands deleted.
The remaining portion of the report by the Court Commissioner is confirmed since there is no objection by the counsel for the appellants regarding demarcation and the apportionment/division of the shares in schedule properties. The Court below shall act upon the Commissioner’s report by considering the submissions of the parties and pass necessary orders in accordance with law.
With this observation the appeal stands disposed of accordingly.
Pending IAs stands disposed of.
Sd/- JUDGE Sd/- JUDGE ykl