IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH R.F.A.No.1982/2012 (PAR) BETWEEN:
VEERA REDDY, S/O LATE BHADRA REDDY, AGED ABOUT 58 YEARS, R/AT VEERA REDDY BOREWELL, MAHADEVAPURA POST, MAHADEVAPURA, BENGALURU-560 048. … APPELLANT (BY SRI H.M. MURALIDHAR, ADVOCATE) AND:
MOHAN REDDY, S/O LATE BHADRA REDDY, AGED ABOUT 45 YEARS, C/O JAYARAMA REDDY, No.296, VINAYAKA NAGAR, J.P. PALACE COMPOUND, VARTHUR ROAD, GUNJUR, BENGALURU-560 087. ... RESPONDENT (BY SRI G. PAPIREDDY, ADVOCATE) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC AGAINST THE ORDER DATED 16.03.2007 PASSED IN F.D.P.No.9/2005 ARISING OUT OF O.S.NO.4167/2001, ON THE FILE OF CITY CIVIL JUDGE, BENGALURU CITY, ORDERED AND DECREED THAT THE PETITIONER SRI MOHAN REDDY, S/O LATE BHADRA REDDY IS THEREBY ALLOTTED EASTERN HALF OF THE SUIT PROPERTY MEASURING 97 FT., EAST TO WEST AND 80FT., NORTH TO SOUTH EXCLUDING THE ROAD ON THE NORTHERN SIDE. IT IS FURTHER ORDERED AND DECREED THAT THERE WILL BE A ROAD PORTION IN THE PLAINT SCHEDULE AREA RUNNING IN THE EAST-WEST DIRECTION WHICH IS DEMARCATED IN THE RED INK IN THE COMMISSIONER’S SKETCH THE WIDTH OF WHICH SHALL BE MAINTAINED AT 20 FT., WIDTH THROUGHOUT.
THIS REGULAR FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed challenging the order dated 16.3.2007 passed in FDP No.9/2005 arising out of O.S.No.4167/2001, on the file of the City Civil Judge, Bengaluru City.
2. The grounds urged in the appeal memo is that the Commissioner has caused loss of about 1,940 sq.ft. of land and the same is illegal. The Court below did not ask the opinion of the appellant about this aspect. The Court below also acted in the manner prejudicial to the interest of the appellant. Since it is a final decree proceedings in a suit for partition, the proper course is to demarcate the land of the appellant also. However, nothing has been done to protect the interest of the appellant. The Commissioner’s report is accepted in toto. The Commissioner has not stated as to what is the extent of the land left over to the appellant. The Commissioner has prepared the rough sketch, wherein he has only demarcated the land. However, there is nothing to indicate that which portion of the property measuring 97 ft. x 80 ft. is allotted to the share of the respondent. Similarly, in the sketch there is nothing to indicate that where exactly 20 ft. road is situated in the respondent’s portion. This may create considerable confusion and the respondent is likely to take advantage of this confusion. The Commissioner’s report is bad for want of notice at the time of measurement. It is submitted that since the partition amounts to division of land in one survey number, in the instant case, a survey sketch was necessary as required under the Karnataka Land Revenue Act before drawing up of the final decree. On this ground also the decree is liable to be set aside and prayed this Court to set aside the judgment and decree passed in FDP No.9/2005.
3. The learned counsel for the appellant in his arguments vehemently contended that the Commissioner’s report which is filed before the Court is obtained clandestinely by appointing a person who is known to the respondent. The report is obtained behind the back of the appellant and the Commissioner’s report causes loss to the appellant. Hence, it requires interference of this Court.
4. Per contra, the learned counsel for the respondent would contend that the Commissioner was appointed and also choice was given to the appellant to accept either of the properties, which is demarcated in the Commissioner’s report and the appellant did not choose to come forward and accept the same. Now, he cannot contend that the Commissioner’s report is bad in the eye of law and no notice was given to him when the Trial Court itself fixed the date and the Commissioner made the spot inspection and submitted the report. Based on the report, the decree was passed. Hence, he cannot find fault with the Court below.
5. The main contention of the learned counsel for the appellant in this appeal is that the Commissioner has not given any notice before inspecting the property. The order sheet reveals that the Commissioner was appointed by the Court and the Court itself fixed the date to inspect the property as 26.2.2006 at 11.00 a.m. The appellant was represented through the counsel. Now the appellant cannot contend that he was not having the knowledge of appointment of the Court Commissioner and also the fixing of the date for spot inspection. Specific date and specific time is mentioned in the order sheet. The Court also issued the delivery warrant. The Court fixed the date for filing the Commissioner’s report as 28.2.2006 and on the same day report is submitted. The date is fixed to hear with regard to the Commissioner’s report on 2.3.2006 and thereafter it was adjourned to 10.3.2006, 18.3.2006 and 25.3.2006. Ultimately on 1.4.2006, the learned counsel for the respondent made the submission before the Court that he is ready to take any of the shares as per the Commissioner’s report. Hence, the appellant was directed to appear in person on 15.4.2006 and choose any one of the share as per the Commissioner’s report. Inspite an opportunity was given to the appellant, the appellant did not choose to appear before the Court and not chosen any of the share as demarcated in the Commissioner’s report. When such being the case, the appellant now cannot contend that the report is bad under law.
6. Having taken note of the proceedings of the final decree proceedings, when the date is fixed by the Court itself and when the appellant did not appear and assist the Court and even inspite of the report is submitted before the Court by the Commissioner, choice is given to the appellant to take any of the share which has been demarcated by the Commissioner and he did not choose to do the same. Now he cannot contend that no opportunity was given and the report is obtained behind the back of the appellant. It is also evident from the records that in terms of the Commissioner’s report, the final decree was drawn in 2007 and the present appeal is filed in 2012. The respondent’s counsel also brought to the notice of the Court that execution petition is filed in terms of the final decree and he has obtained the possession in the execution proceedings. When such being case, I do not find any merit in the appeal to admit the same. Having considered the material on record, it is not a fit case to admit.
7. The appellant has also filed I.A.No.1/2013 to implead the subsequent purchaser and the impleading applicant is not necessary in this proceedings. If any grievances, the same can be agitated in different forum and not in this appeal.
8. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed.
Sd/- JUDGE MD