IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD MISCELLANEOUS SECOND APPEAL NO. 142 OF 2018 (RO) Between:
SHIVARAMA S/O BABU MOOLYA AGED ABOUT 55 YEARS R/AT MITHAPALU OF KOILA VILLAGE POST KOILA BANTWAL TALUK D.K DISTRICT-574 211 ... APPELLANT (BY SRI RAJASHEKAR S., ADVOCATE) And:
1. SMT JANAKI W/O LOKAYYA AGED ABOUT 53 YEARS 2. SMT CHENAMMA W/O LOKAYYA AGED ABOUT 50 YEARS BOTH R/AT KUNTALA OF KAVALMODUR VILLAGE KAVALAKATTE POST BANTWAL TALUK D.K DISTRICT-574 211 3. SMT KAMALA W/O BABU MOOLYA AGE: MAJOR R/AT MITHAPALU OF KOILA VILLAGE POST KOILA BANTWAL TALUK D.K DISTRICT-574 211 DIED; LRS ARE ALREADY ON RECORD AS APPELLANT AND RESPONDENT NOS.1, 2, 4 TO 10 4. OBAYYA S/O LATE VARIJA AGE: MAJOR 5. PUSHPA D/O LATE VARIJA AGE: MAJOR 6. YAMUNA D/O LATE VARIJA AGE: MAJOR 7. LAXMANA S/O LATE VARIJA AGE: MAJOR 8. PADMANABHA S/O LATE VARIJA AGE: MAJOR 9. HARINAKSHI D/O LATE VARIJA AGE: MAJOR RES NO.4 TO 9 ARE R/AT KAILARU HOUSE MOODAMADUGODU VILLAGE BANTWAL TALUK D.K. DISTRICT-574 211 10. MUNDAPPA S/O BABU MOOLYA AGE: MAJOR R/AT MITHAPALU OF KOILA VILLAGE POST KOILA BANTWAL TALUK D.K. DISTRICT-574 211 11. RUKKU W/O DHARANAPPA MAJOR R/AT PAPUDADKA VENOOR VILLAGE AND POST BELTHANGADY TALUK D.K. DISTRICT 12. GIRIJA W/O KARIYA MAJOR R/AT HANINADU HOUSE GARDI VILLAGE AND POST BELTHANGADY TALUK D.K.DISTRICT 13. RADHA W/O KOOSA MAJOR R/AT BABUKERE BUDOLI VILLAGE AND POST, BANTWAL TALUK D.K.DISTRICT-574 211 ... RESPONDENTS (BY SRI. PUNDIKAI ISHWAR BHAT, ADV. FOR R1 & R2; R4 TO R9, R11 TO R13 – SERVED;
R10 – SERVICE HELD SUFFICIENT V/O. DT:03.06.2019; R1, R2, R4 TO R10 AND APPELLANT ARE LRS OF R3 V/O DT:29.07.2019) THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER ORDER XLIII RULE 1(u) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.06.2018 PASSED IN R.A.NO.16/2017 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, D.K., MANGALURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 13.01.2017 PASSED IN F.D.P. NO.8/2008 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, BANTWAL, D.K. PARTLY ALLOWING THE PETITION FILED UNDER ORDER 20 RULE 18 OF CPC.
THIS MISCELLANEOUS SECOND APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the respondent No.7 in F.D.P.No.08/2008 on the file of the Principal Senior Civil Judge & J.M.F.C., Bantwal, Dakshina Kannada.
2. The Respondent Nos.1 and 2, who are the petitioners/ plaintiffs in F.D.P.No.08/2008, have sought for final decree as per the preliminary decree in O.S.No.59/2009, a suit for partition of suit schedule properties by metes and bounds. The final decree Court has appointed a Court Commissioner, who has filed his Reports on 10.12.2013, 24.08.2013, 02.12.2015 and 22.11.2016. These four Reports have been accepted insofar as partition of the suit schedule properties by metes and bounds. These petitioners/ plaintiffs, who are respondent Nos.1 and 2 before this Court, being aggrieved by the final decree Court’s rejection of the request for mesne profits, have filed R.A.No.16/2017 on the file of the Principal District Judge, Dakshina Kannada, Mangaluru. This appeal in R.A.No.16/2017 is allowed by the appellate Court by its judgment dated 30.06.2018 and the matter is remanded back to the final decree Court for fresh enquiry into the assessment of income from the suit schedule properties and for appropriate orders on mesne profits.
3. The learned counsel for the appellant submits that the request for mesne profits is rejected by the final decree Court because the respondent Nos.1 and 2 had failed to lead any evidence as regards the income. The judgment by the Final Decree Court was justified in the absence of the evidence. However, the Appellate Court, while allowing the application filed under Order XLI Rule 27 of CPC permitting respondent Nos.1 and 2 to produce the APMC Price List, has remanded back the case for fresh consideration as regards mesne profits on the ground that the final decree Court has erred in not directing the Commissioner to hold an enquiry into mesne profits and file a further report; a party cannot be penalized for oversight by the Courts. But, the appellate Court failed to consider that the Court Commissioner, an advocate, had filed his Report way back on 24.08.2013 stating that the Commissioner was not qualified to hold an enquiry and such an enquiry cannot be held without the assistance of the experts from agricultural/horticultural departments. Though Report was filed way back on 24.08.2013, the respondent Nos.1 and 2 had not taken any steps. As such, no further enquiry into mesne profits was justified as concluded by the final decree Court.
4. It is settled that final decree proceeding is a continuation of a suit initiated for partition, and an enquiry in the final decree proceeding is to work out the remedies as per the preliminary decree. There is no dispute that the respondent Nos. 1 to 2 are entitled for mesne profit in terms of the concluded preliminary decree. The Court Commissioner is appointed inter alia to hold an enquiry as regards the mesne profits; the Court Commissioner has filed multiple reports. Insofar as the report on the income from the suit schedule properties, the report by such Court Commissioner is that he did not have the expertise to file a Report as regards the income and mesne profits, and the assistance of the officials from the concerned Department would be required. Further, reports are filed by the Court Commissioner even after this report on income. The Courts cannot, especially when there is a melee of multiple reports, deny an entitlement already decided unless such right is otherwise lost by the concerned party. In the facts and circumstances of the case, it cannot be reasonably concluded that the respondent Nos. 1 to 2 have lost such right. The respondent Nos. 1 and 2, who did not take fresh steps after the aforesaid report by the Court Commissioner stating that he did not have the necessary expertise, have filed application for leave to produce the APMC Price List, and the application is considered by the appellate Court. Therefore, there is no legal infirmity in the order of the appellate Court, and as such, the appeal is dismissed.
In view of dismissal of the appeal, I.A. No.2/2018 does not survive for consideration and accordingly, the same is disposed of.
SD/- JUDGE KG