IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11th DAY OF DECEMBER 2019 BEFORE THE HON'BLE Mr.JUSTICE S.R.KRISHNA KUMAR CIVIL REVISION PETITION NO.118 OF 2015 BETWEEN:
PUTTARAMU S/O LATE MANCHAIAH AGED ABOUT 55 YEARS R/AT BOMMUR AGRAHARA VILLAGE BELAGOLA HOBLI SRIRANGAPATNA TALUK MANDYA DISTRICT – 571 427.
(BY SMT.ARCHANA MURTHY.P, ADVOCATE) AND:
1. SMT.KOMALA D/O MANCHAIAHA AGED ABOUT 54 YEARS W/O LATE SOMEGOWDA R/AT MARATIKYATHANAHALLI VILLAGE JAYAPUR HOBLI, MYSURU TALUK MYSURU DISTRICT – 570 001.
2. SRI. MANCHEGOWDA S/O MANCHAIAH AGED ABOUT 69 YEARS R/AT BOMMUR AGRAHARA VILLAGE BELAGOLA HOBLI SRIRANGAPATNA TALUK MANDYA DISTRICT – 571 427.
…PETITIONER 3. SMT. GOWRAMMA DIED ON 30.05.2019 AMENDED AS PER ORDER OF THE HON’BLE COURT DATED: 26.11.2019 3(A) JAMUNA W/O JAGANNATH AGED ABOUT 40 YEARS R/AT DASARAGUPPE VILLAGE K.SHETTAHALLI HOBLI, SRIRANGAPATNA TALUK – 571 428..
4. SMT.NANJAMMA S/O MANCHAIAH AGED ABOUT 59 YEARS W/O KRISHNEGOWDA R/AT PALAHALLI VILLAGE BELAGOLA HOBLI – 571 427.
5. SMT.GUNASUNDRAMMA AGED 54 YEARS W/O LATE BHAGAVATHAPPA D/O LATE MANCHAIAH R/O NIKITHA NILAYA VIJAYANAGARA 2ND BLOCK MYSURU – 570 008.
…RESPONDENTS (BY SHRI.M.K.SHIVARAJU, ADVOCATE FOR R-1 SHRI. B.N. RAVISHANKAR, ADVOCATE FOR R-3 SHRI.M.Y. SREENIVASAN, ADVOCATE FOR R-2, R-3 & R-5) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 01.09.2014 PASSED IN MA.NO. 67/2011 ON THE FILE OF THE III ADDL. DISTRICT AND SESSIONS JUDGE MANDYA (SITTING AT SRIRANGAPATNA), DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 23.07.2011 PASSED IN FINAL DECREE PROCEEDINGS NO. 7/2010 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, SRIRANGAPATNA, PARTLY ALLOWING THE PETITION UNDER ORDER 20 RULE 12, R/W/S, 54 OF CPC AND UNDER ORDER 26 RULE 13 OF CPC AND ETC.
THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER This revision petition is directed against the impugned judgment and order dated 01.09.2014 passed in M.A.No.67/2011 on the file of II Addl. District and Sessions Judge, Mandya (sitting at Srirangapatna), whereby the lower appellate Court dismissed the appeal preferred by the petitioner.
2. The brief facts giving rise to the above revision petition are as follows:
Late Manchaiah and late Mariyamma died leaving behind two sons Puttaramu and Manchegowda and Shesharamu and four daughters Komala, Gowramma, Gunasundaramma and Nanjamma. The said two sons and four daughters succeeded to the estate of the said Manchaiah inclusive of one landed property bearing Survey No.127 measuring 1 acres 38 guntas of land situated at Bommur Agrahara village, Belagola Hobli, Srirangapatna taluk and house property bearing katha No.144 measuring 38’ x 40’. Since the two sons of late Manchaiah refused to effect partition and division of the said joint properties, the four daughters filed a suit in O.S.No.32/2003 before the Court below for partition and separate possession of their legitimate shares in the aforesaid two suit schedule properties.
3. By judgment and decree dated 22.07.2005, the trial Court decreed the suit in favour of the plaintiffs thereby declaring that they are entitled to 1/6th share each in the suit schedule properties.
4. Aggrieved by the same, the defendants preferred an appeal in R.A.No.164/2005 which was also dismissed on 01.03.2006 by the lower appellate Court thereby confirming the judgment and decree for partition and separate possession of the suit schedule properties passed by the trial Court. It is not in dispute that no further appeal was preferred by the aforesaid two sons of late Manchaiah.
5. Smt.Nanjamma-plaintiff No.2 instituted final decree proceedings in F.D.P.No.18/2006 for drawing up of final decree in respect of the house property bearing katha No.144 which was described as Item No.2 of the suit schedule properties. The trial Court passed a final decree dated 05.12.2009 only in respect of the Item No.2 of the schedule properties to the extent of 1/6th share in the same.
6. Subsequently, Smt.Komala, the plaintiff No.4 in the suit also instituted final decree proceedings in F.D.P.No.7/2010 before the trial Court seeking division in respect of Item No.1, i.e., land bearing Survey No.127 referred to supra. The final decree Court allowed the said petition by order dated 23.07.2011. During the course of the proceedings, a surveyor was appointed by the Court under Section 54 CPC to conduct a survey in respect of Item No.1 and submit his report by demarcating the property into six portions in terms of the aforesaid preliminary decree dated 22.07.2005 passed in O.S.No.32/2003. The final decree Court accepted the report submitted by the taluk surveyor and directed drawing up of final decree as per the sketch submitted by the surveyor.
7. Aggrieved by the said judgment and order dated 23.07.2011 passed in F.D.P.No.7/2010, Sri.Puttaramu- defendant No.2 in the suit preferred an appeal in M.A.No.67/2011 before the lower appellate Court inter alia contending that in view of the fact that since the final decree had already been drawn at the instance of Nanjamma in FDP No.18/2006, the question of once again drawing a final decree did not arise and that the final decree was liable to be set aside. By the impugned judgment and order, the lower appellate Court dismissed the appeal filed by the said Puttaramu. Aggrieved by the same, the appellant in M.A.No.67/2011 has preferred the present civil revision petition.
8. It is contended by the learned counsel for the petitioner that the impugned judgment and order passed by the Courts below are illegal, erroneous and contrary to the material on record and that the same warrants interference by this Court. It is contended that in view of the undisputed fact that FDP No.18/2006 had already been allowed, the second final decree proceeding in FDP No.7/2011 was not maintainable. It is also contended that the demarcation made by the surveyor without leaving any space for right of way is erroneous and as such, the writ petition as well as the final decree passed by the trial Court are required to be set aside.
9. Per contra, learned counsel for the respondents would support the impugned orders passed by the Court below.
10. A perusal of the impugned judgment and order passed by the trial Court as well as the lower appellate Court coupled with the sketch submitted by the Taluk Surveyor will clearly indicate that the sketch and report clearly demarcate the share of the parties in terms of the preliminary decree referred to above. The trial Court has noticed the fact that the report of the surveyor is correct and proper and that the same is in accordance with the preliminary decree and has consequently accepted the same. In the appeal filed by the petitioner herein, the lower appellate Court has taken into account the well- reasoned and considered order passed in FDP and has dismissed the appeal. There is no illegality or perversity in the impugned judgment and orders which call for interference at the hand of this Court.
11. It is contended on behalf of the petitioner that in the absence of any demarcation with regard to all the properties, the question of drawing up of final decree does not arise. This contention deserves to be rejected in view of the well settled proposition of law that a suit for partition is deemed to be pending till the last item of property is divided/partitioned/demarcated and possession is handed over to all the parties. It is not in dispute that subsequent to passing of the order in FDP herein, the parties have obtained vacant possession of their respective shares and all of them are in possession and enjoyment of their respective shares as demarcated by Taluk Surveyor which was accepted by the final decree Court while passing the final decree. Under these circumstances, the contention urged on behalf of the petitioner that the properties have not been demarcated deserves to be rejected.
12. In view of the aforesaid discussion, I do not find any merit in this revision petition and the same is hereby dismissed. It is brought to my notice that some of the parties have not taken steps to get final decree engrossed on stamp paper to be supplied by them. Under such circumstances, liberty is reserved to all the parties to obtain final decree in respect of their respective shares by supplying requisite stamp paper for engrossing the final decree. It is open for the parties to take steps to obtain the final decree either in FDP No.7/2010 or in FDP No.18/2006 before the Trial Court or by any other mode in accordance with law.
13. Accordingly, I pass the following:
ORDER i) Civil Revision Petition is dismissed.
ii) The impugned judgment and order dated 01.09.2014 passed in M.A.No.67/2011 on the file of II Addl. District and Sessions Judge, Mandya (sitting at Srirangapatna) is hereby confirmed.
iii) Liberty is reserved to all the parties to obtain the final decree engrossed on stamp paper by the trial Court pursuant to the final decree passed in FDP No.7/2010 or the final decree passed in FDP No.18/2006 before the Trial Court or by any other mode in accordance with law. No costs.
Registry to send back the records forthwith.
Sd/- JUDGE bnv*