Research › Search › Judgment

Karnataka High Court · body

2017 DIGILAW 864 (KAR)

Yatheesha v. Bhyrappa

2017-06-01

K.S.MUDAGAL

body2017
JUDGMENT : 1. This plaintiff’s second appeal arises out of the judgment and order dated 04.05.2015 in R.A. No.18/2015 passed by the Senior Civil Judge, Tiptur. By the impugned judgment, the first appellate Court has confirmed the order of the Additional Civil Judge and JMFC, Tiptur dated 7.4.2015 in F.D.P. No.12/2007 for passing final decree in terms of the order therein. 2. Respondent No.1 is the father and respondent No.2 is the elder sister of the appellant. The appellant filed O.S.No.102/2006 against the respondents for partition and separate possession of his 1/3rd share in the suit schedule item Nos.1 to 7 lands which are as follows: “1. Sy.No.211/1 measuring 1.00 acre dry land bounded on East-Channa Basavaiah, West-Shivanna, North Railway track, South-B.H. Road. 2. Sy.No.327 measuring 2.04.08 gts garden land. 3. Sy.No.233 measuring 0.35 gts garden land both are bounded by commonly by East-Shivaiah. West-Channabasaviah, North-Udayashankar, South-Railway track. 4. Sy.No.209/p5 measuring 0.10 gts dry land. 5. Sy.No.210/5A measuring 1.12.08 gts dry land both are bounded by common bo0undaries East-Hanumaiah, West-Road, North-Venkateshaiah, South-Road. 6. Sy.No.326/1, measuring 1.26 gts garden land. 7. Sy.No.326/2 measuring 1.28 gts garden land both are bounded by common boundaries East Manjunatha, West-House, North-Swamy, South-Railway Track.” 3. The Civil Judge (Junior Division) decreed O.S.NO.102/2006 grating 1/3rd share to the plaintiff out of the above said properties and passed the preliminary decree to that effect. The appellant filed F.D.P.No.12/2007 seeking a final decree in pursuance of the preliminary decree referred to above. Since the properties are agricultural lands the trial Court invoking Section 54 of C.P.C. referred the matter to the Thasildhar for effecting division of the property. The Thasildhar filed the report. Accepting the Thasildhar’s report on 19.04.2012 the court disposed of the application. 4. The plaintiff challenged the said order before the Senior Civil Judge, Tiptur in R.A.No.11/2012 on the ground that the division is effected by the Commissioner and not by the Court, therefore the order is unsustainable. The Senior Civil Judge allowed R.A.No.11/2012 and remanded the matter to the trial Court with a direction to refer back the matter to the Court Commissioner to effect division in item No.4 of the said properties etc. The said order reads as follows: “Appeal is allowed in part. The impugned judgment dated 19.04.2012 in FDP 12/2007 is hereby set aside. The Senior Civil Judge allowed R.A.No.11/2012 and remanded the matter to the trial Court with a direction to refer back the matter to the Court Commissioner to effect division in item No.4 of the said properties etc. The said order reads as follows: “Appeal is allowed in part. The impugned judgment dated 19.04.2012 in FDP 12/2007 is hereby set aside. Matter is remitted back to the trial court with a direction to refer back the matter to the court commissioner to effect division of item No.4 of the suit property. The trial court is directed to hold an enquiry before allotting the share and shall decide which of the part in each schedule shall be allotted to the share of plaintiff and defendants.” 5. After such remand respondent Nos.1 and 2 filed memo before the trial court stating that they have no objection to allot entire suit schedule item No.4 property to the plaintiff. They further requested the trial Court to allot adjacent shares to them in each of the remaining suit properties. It is material to note that at no point of time the plaintiff filed objection to the Commissioner’s report. Even after the remand he did not object the proposal of division of the properties made by the Commissioner in his report as unjust or in-equitable. 6. Since defendant Nos.1 and 2 gave up their shares in item No.4 property in favour of the plaintiff the dispute with respect to that property did not survive. Therefore, the trial court passed the order dt. 07.04.2015 allotting the entire suit schedule Item No.4 property to the plaintiff and accepting the report of the Commissioner in respect of the remaining properties and ordered to draw final decree accordingly. 7. Plaintiff challenged the said order before the Senior Civil judge, Tiptur in R.A.No.18/2015 contending that order in question is in violation of the remand order in R.A.NO.11/2012. The first appellant court by the impugned judgment dismissed the said appeal holding that the allotment of shares made to the parties is in accordance with the judgment in R.A.No.11/2012. 8. There is no dispute that appeal under Section 100 of C.P.C. cannot be admitted unless it is made out that substantial question of law is involved in the matter. The first appellant court by the impugned judgment dismissed the said appeal holding that the allotment of shares made to the parties is in accordance with the judgment in R.A.No.11/2012. 8. There is no dispute that appeal under Section 100 of C.P.C. cannot be admitted unless it is made out that substantial question of law is involved in the matter. The grounds tried to be made out in this appeal are: (i) that the final decree Court has not conducted enquiry in terms of judgment in R.A.No.11/2012; (ii) that the Commissioner has allotted the shares to the parties and not the Court. 9. In R.A.No.11/2012 though the matter was remanded with a direction to refer back the matter to the Court Commissioner to effect division in item No.4 of the suits schedule property, since the defendants gave up their shares in that property to the plaintiff, the question of referring back the matter to the Court Commissioner did not survive. Therefore, there is no merit in the contention that the Court should have referred back the matter to the Commissioner in respect of suit schedule item No.4 property. 10. So far as contention that the Trial Court failed to conduct enquiry in allotting the shares, as already pointed out the plaintiff did not file objections to the Commissioner’s report contending that the proposal of the allotment of the shares in the report is unjust or in any way prejudicial to his rights. Learned counsel for the appellant contends that the Commissioner had not issued notice to the appellant before executing the work. If that be so he should have filed objection to the Commissioner’s report making out such grounds. No such objection was filed before the trial Court. In the absence of any objection to the Commissioner report there was no reason or occasion for the trial Court to conduct enquiry on Commissioner’s report. Therefore, it cannot be said that there is violation of judgment in R.A.No.11/2012 in not holding enquiry before allotment of shares. 11. Certified copy of the Commissioner’s report is made available to this court with a memo. It shows that the Commissioner has drawn the sketch of each of the properties proposing the division of the shares of the each of the parties. He has proposed for allotment of equal share in each of the properties. 11. Certified copy of the Commissioner’s report is made available to this court with a memo. It shows that the Commissioner has drawn the sketch of each of the properties proposing the division of the shares of the each of the parties. He has proposed for allotment of equal share in each of the properties. He has numbered the proposed shares of parties in each sketch as II, III and IV. He has not passed any order in the report that such and such property is allotted to such and such party. 12. In the absence any protest to the report, accepting the said proposals the Trial Court has ordered drawing up of final decree in terms of the Commissioner’s report. Even the first appellant Court has given the option to the plaintiff to choose a share out of three portions proposed as indicated in the judgment. The appellant has not chosen to exercise the option which was given to him before the courts below. 13. No where he has contended that the shares proposed are unequal or inequitable. Therefore, there is no merit in the contention that the shares are allotted by the Commissioner and not by the Courts below. Having regard to these facts satisfied that no substantial question of law is involved in the case and appeal is only the out come of unreasonable attitude of the appellant. There is no ground to admit the appeal. Therefore, the appeal is dismissed with cost.