IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 PRESENT THE HON'BLE MR. JUSTICE ARAVIND KUMAR AND THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ R.F.A. NO.1917 OF 2013 (PAR) BETWEEN:
SRI. VIJAYAKUMAR SHETTY S/O LATE RAMANNA SHETTY AGED ABOUT 50 YEARS RESIDING AT HOSBETTU GUTHU HOUSE, KULAI HOSBETTU POST SURATHKAL-575014 ... APPELLANT (BY SRI.H. PAVANACHANDRA SHETTY, ADVOCATE) AND:
1. SACHINDRANATH SHETTY S/O LATE RAMANNA SHETTY AGED ABOUT 47 YEARS 2. JAYAKUMAR SHETTY S/O LATE RAMANNA SHETTY AGED ABOUT 47 YEARS BOTH ARE RESIDING AT HOSBETTU, BUTHU HOUSE KULAI, HOSBETTU POST SURATHKAL TALUK MANGALORE DISTRICT-575014 ... RESPONDENTS (BY SRI. SANDESH SHETTY, ADVOCATE FOR R1;
SRI. N. RAVINDRANATH KAMATH, ADVOCATE FOR R2) THIS APPEAL IS FILED UNDER SECTION 96 OF CODE OF CIVIL PROCEDURE, 1908, AGAINST THE ORDERS DATED 11.01.2013 PASSED IN FDP.NO.25/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MANGALORE, ALLOWING THE FDP PETITION IN TERMS OF THE COMMISSIONER REPORT.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY, ARAVIND KUMAR J., DELIVERED THE FOLLOWING:-
JUDGMENT This is plaintiff’s appeal calling in question correctness and legality of the order dated 11.01.2013 passed in Final Decree Proceedings i.e., FDP No.25/2010 by the Principal Senior Civil Judge, Mangalore (‘trial Court’ for short) whereunder final decree for partition is ordered to be drawn in terms of Court Commissioner’s report by accepting the same.
2. Facts in brief which has led to filing of this first appeal can be crystallized as under:
Respondent No.1 herein filed a suit O.S.No.78/2008 for partition and separate possession of suit schedule properties claiming 1/3rd share. Said Suit, after contest, came to be decreed by Judgment and decree dated 30.07.2010. In order to enjoy the fruits of the decree, respondent No.1 initiated Final Decree Proceedings under Order 20 Rule 18 of Code Of Civil Procedure, 1908 (‘CPC') which came to be numbered as FDP No.25/2010 whereunder, respondent No.1 herein sought for final decree to be passed in terms of preliminary decree by allotting 1/3rd share in suit schedule properties to him. On Notice being ordered, parties appeared and an advocate practicing at the Mangalore Bar came to be appointed as Court Commissioner to divide the properties in terms of preliminary decree. Commissioner Warrant was duly executed and a report came to be submitted by the Court Commissioner dividing the properties amongst the sharers. Respondent No.1 filed a memo before trial Court for Commissioner’s report being accepted. Whereas respondent No.2 i.e., appellant herein neither filed objections to Court Commissioner’s report nor addressed any arguments with regard to said report. Hence, Learned Judge adjudicating the Final Decree Proceedings found that division of properties effected to by the Court Commissioner is in accordance with preliminary decree passed and division of properties, as noted in sketch, is just, proper and reasonable. Hence, report of Court Commissioner came to be accepted and final decree was ordered to be drawn vide Judgment dated 11.01.2013. Same is under challenge in this first appeal.
3. We have heard the arguments of Sri.Pavanachandra Shetty, learned counsel appearing for appellant and Sri.Ravindranath Kamath, learned counsel appearing for respondent No.2.
4. It is the contention of Sri.Pavanachandra Shetty, learned counsel appearing for appellant who has contended that division of properties effected by Court Commissioner is unclear and there is no equal distribution of properties. He would also contend that Court Commissioner had not followed directions issued by the trial Court and as such, learned trial Judge ought to have rejected the Commissioner’s report. He would elaborate his submissions by contending that in the absence of division having not been quantified by way of proper valuation, said report could not have been accepted by trial court. Hence, he seeks for final decree being set-aside.
5. Per contra, Sri.Ravindranath Kamath, learned advocate would support the final decree passed by trial Court.
6. Having heard the learned advocates appearing for parties and on perusal of records secured from Court below, we are of the considered view that following points would arise for our consideration:
“ i) Whether final decree passed in FDP No.25/2010 dated 11.01.2013 suffers from any infirmity either in law or on facts, calling for our interference ?
ii) What order ?”
7. Since facts in brief having already been narrated hereinabove, repetition of same would be burdening the records and as such, we desist from reiterating the facts.
RE: POINT NO.1:
8. It is not in dispute that appellant herein being 2nd defendant in O.S.No.78/2008 and a preliminary decree having been drawn on 30.07.2010 and same having not been challenged by the appellant. In other words, Judgment and decree passed by the trial Court in O.S. No.18/2008 has become final whereunder, plaintiff therein has been granted 1/3rd share in the suit schedule properties. For dividing said properties by metes and bounds application under Order 20 Rule 18 came to be filed by 1st respondent herein. For effecting said division, Court Commissioner came to be appointed and report was submitted by said Court Commissioner. Perusal of Court Commissioner’s report clearly indicated that on obtaining warrant, Court Commissioner had issued notices to parties and he had also visited the spot on 28.01.2012 where suit schedule properties are located. On said date, not only 1st respondent herein, but also appellant was also present along with his advocate. Decree passed by trial Judge would disclose that there were five items of schedule properties and total extent of land which consisted of tari and bagayat was measuring 0-96.50 cents and 1/3rd share of the plaintiff being 32 cents was required to be allotted as share of plaintiff. Said property consisted of residential building, store room, Well, pump-house and Nagabana. As per sketch appended to the report, which was drawn by Taluka surveyor from office of Tahasildar, Mangalore North Taluk. Execution of Commissioner’s warrant was deferred by consent of all parties and next date came to be fixed as 14.12.2012 which was notified to all parties, as well as learned advocates. Survey of the lands came to be conducted by measuring all the properties described in the decree and keeping in mind equity, as well as enjoyment of respective properties by all parties, share of plaintiff came to be carved out, as described in the report of Court Commissioner which includes residential building, as more fully described in the schedule to Court Commissioner’s report. When Court Commissioner filed his report, appellant herein did not object to same and no evidence was tendered by appellant to establish that there has been inequitable distribution of suit schedule properties. In fact, as rightly observed by the learned trial Judge, there was not even arguments addressed on behalf of appellant for Court Commissioner’s report being rejected. It is, in this background, learned trial Judge accepted Court Commissioner’s report and rightly so. We have also perused the report and found same being in consonance with the preliminary decree drawn by trial Court and there has been equal distribution of properties amongst sharers. Hence, we do not find any irregularity or illegality committed by the Court Commissioner in executing the warrant of Commissioner, which was issued for the purposes of dividing the suit schedule properties as per preliminary decree passed in O.S.No.78/2008.
9. Accordingly, we answer point No.1 formulated hereinabove in the negative i.e. against appellant and in favour of respondents.
Re: POINT No.2:
10. For the reasons aforestated, we proceed to pass following order:
ORDER i. Appeal is dismissed.
ii. Judgment and decree passed in FDP No.25/2010 by the Principal Senior Civil Judge, Mangalore dated 11.01.2015 is affirmed.
iii. No order as to costs.
Sd/- JUDGE Sd/- JUDGE ln