Dismissed

Kashinath Krishna Bandekar v. Sadanand Narayan Mestri Dead by His Lrs

Karnataka HC13 Mar 2017RSA/100556/2016

Case brief

AI extract

What is this about?

This first appeal against an order dismissing a second appeal was decisively refused. This court held no substantial question of law arose since the defendant failed to file a written statement in the civil suit, precluding any challenge to the order. The court granted liberty to raise equitable adjustment arguments in the execution court under Section 47 CPC.

What the court decided

AI extract

Kashinath Krishna Bandekar Vs Sadanand Narayan Mestri Dead by… — Partition | Karnataka HC (2017)

¶1

: 1 :

¶2

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

¶3

DATED THIS THE 13^TH DAY OF MARCH, 2017

¶4

BEFORE

¶5

THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

¶6

R.S.A. NO.100556/2016(DEC, MAN.INJ & PER.INJ)

¶7

BETWEEN:

¶8

KASHINATH KRISHNA BANDEKAR, AGE:77 YEARS, OCC. AGRICULTURE, R/O TEACHER’S COLONY, PO:NANDANGADDA, BAAD, KARWAR

¶9

... APPELLANT

¶10

(BY SRI. F V PATIL, ADVOCATE)

¶11

AND

¶12

SADANAND NARAYAN MESTRI DEAD BY HIS LRS

¶13

1A) KALPANA W/O SADANAND MESTRI, AGE:77 YEARS, OCC. HOUSEHOLD, R/O TEACHER’S COLONY, NANDAGADDA, BAAD, KARWAR

¶14

1B) PRADEEP S/O SADANAND MESTRI, AGE:55 YEARS, OCC. AGRICULTURIST, R/O TEACHER’S COLONY, NANDAGADDA, BAAD, KARWAR

¶15

1C) DILEEP S/O SADANAND MESTRI, AGE:44 YEARS, OCC. AGRICULTURIST, R/O TEACHER’S COLONY, NANDAGADDA, BAAD, KARWAR

¶16

: 2 :

¶17

1D) SUBODH S/O SADANAND MESTRI, AGE:44 YEARS, OCC. AGRICULTURIST, R/O TEACHER’S COLONY, NANDAGADDA, BAAD, KARWAR

¶18

1E) RASHMI W/O RAJANIKANT MASURKAR, AGE:51 YEARS, OCC. HOUSEHOLD, R/O TEACHER’S COLONY, NANDAGADDA, BAAD, KARWAR

¶19

1F) SHEETAL W/O ASHOK KALAMKAR, AGE:49 YEARS, OCC. HOUSEHOLD, R/O TEACHER’S COLONY, NANDAGADDA, BAAD, KARWAR ALL ARE NOW RESIDING AT 2/3, CHITAMANI CO-OPERATIVE SOCIETY, NATU PARANJAPE-COLONY, MITH BUNDER ROAD, THANE, EAST, MAHARASHTRA 400603.

¶20

... RESPONDENTS

¶21

THIS RSA IS FILED U/S. 100 OF CPC, 1908, AGAINST THE JUDGMENT AND DECREE DATED:12.04.2016, PASSED IN R.A.NO.20/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE KARWAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 11.08.2014 AND THE DECREE PASSED IN O.S.NO.49/2000 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, KARWAR, DECREEING SUIT FILED FOR DECLARATION, MANDATORY INJUNCTION AND PERMANENT INJUNCTION.

¶22

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THIS COURT, DELIVERED THE FOLLOWING:

¶23

: 3 :

¶24

JUDGMENT

¶25

This appeal is filed by the defendant in O.S. No.49/2000 on the file of the Principal Civil Judge, Karwar. The legal heirs of the plaintiff in the suit are the respondents here.

¶26

The original plaintiff, Sadanand Narayan Mestri, brought a suit for declaration that the defendant has no right, title, claim or interest of any kind or nature in agricultural land to an extent of 09 Guntas in Survey No.351 of Baad village, Karwar Taluk. He has also sought for mandatory direction to demolish a house constructed in the encroached portion of the said land and to hand over the possession of the encroached land. The defendant appeared before the Court, but failed to file written statement despite sufficient opportunity being given. Therefore, the Trial Court, on the basis of the proof produced by the plaintiff, decreed the suit of the plaintiff.

¶27

Challenging the said judgment and decree, the defendant preferred an appeal, RA No. 20/2014, to the Court of Principal Senior Civil Judge, Karwar. The said appeal was

¶28

: 4 :

¶29

also dismissed on 12.04.2016 confirming the judgment of the Trial Court. Aggrieved by the said judgment, the defendant has preferred this appeal.

¶30

The learned counsel for the appellant/defendant submits now that the occupancy right in respect of 09 Guntas of land was granted by the tribunal to the plaintiff and likewise, occupancy right in respect of another 09 Guntas land was granted in favour of the defendant. Therefore, totally 18 Guntas of land had been granted both to the plaintiff and the defendant. But going by the survey records, the actual extent of land available was only 16 Guntas 08 Annas. So, in this regard, he refers to Section 48A(vi) of the Land Reforms Act to argue that in case of any clerical or arithmetical mistakes in the order of the Land Tribunal, the Tribunal can correct it or the parties can approach the Tribunal seeking correction. The reason for referring to this Section is that when 18 Guntas of land was not available, both the plaintiff and the defendant could have approached the Land Tribunal seeking clarification and correction and if they had done, each one would have got 08 Guntas of land. Therefore, he submits that though this fact

¶31

: 5 :

¶32

was brought to the notice of the First Appellate Court, it was not considered at all. Therefore, it is his argument that the appellant has made out a ground for admission of this appeal.

¶33

Indeed, the argument of learned counsel can be appreciated if the defendant had taken up this contention before the Civil Court. The case of the plaintiff is that he is, absolute owner of 09 Guntas of land. If according to the defendant, the Tribunal had committed a mistake and therefore the plaintiff should have approached the Land Tribunal seeking correction, the defendant should have taken up a contention in the written statement. But the defendant failed to submit his written statement and in these circumstances, decree came to be passed. The First Appellate Court, therefore, cannot be at fault in confirming the judgment of the Trial Court. Under these circumstances, I do not find any ground for admitting this appeal, as substantial question of law does not arise.

¶34

However, learned counsel for the appellant has referred to the judgment of this Court in the case of

¶35

A.Kannana (deceased) by LRs v/s Smt Khatun Bee and

¶36

: 6 :

¶37

another, [2005 (2) KCCR 821) to argue that since the suit is one for mandatory injunction also, the Trial Court could have considered equity, in that the Trial Court could have directed the defendant to part with his piece of land to the plaintiff, so that the house constructed by the defendant could be saved from demolition. But this point cannot be considered here now because substantial question of law does not arise at all. However, because he submits that the plaintiff has already initiated execution proceedings and liberty can be given to the defendant to raise this point in the Execution Court.

¶38

The Execution Court cannot go beyond the decree. But in view of the submission made by the appellant’s counsel, if the parties feel that they can settle the matter between themselves by adjusting the equities, the Execution Court can consider it to arrive at a satisfaction of the decree according to Section 47 of C.P.C. So, with this observation, this appeal is dismissed.

¶39

Sd/JUDGE

¶40

yan

Kashinath Krishna Bandekar v. Sadanand Narayan Mestri Dead by His Lrs

Case brief

What is this about?

What the court decided

Kashinath Krishna Bandekar v. Sadanand Narayan Mestri Dead by His Lrs

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Hubli-Dharwad Municipal Corporation Vs Lalji

Smt.Anubai Vs Machendra

Sri Rudrappa S/O Mahadevappa @ Mallappa Astagi Vs Sri Mahadevappa S/O Tavanappa Astagi

Shri.Kallappa Koneri Gurav @ Bhuttewadkar Vs Shri.Subhash Jivappa Patil

The Municipality, Ranebennur, Vs Sri.Naaganandeshwar Educational Trust

Shamshuddin S/O Fakeersab Reshmi, Vs Smt.Irene W/O Assis Rodrigues