Dismissed

Smt Anusuyamma v. Smt Lakshmamma @ Dodda Lakshmamma

Karnataka HC13 Sept 2023RFA/2032/2022

Case brief

AI extract

What is this about?

This regular first appeal challenges a Trial Court order appointing ADLR to conduct a resurvey of partitioned property ensuring road access for all sharers by a margin of 30 feet. The High Court dismissed the appeal, finding the process was transparent, notices were issued, and the appellant failed to clarify objections regarding service.

What did the court decide?

The appeal was dismissed.

Smt Anusuyamma Vs Smt Lakshmamma @ Dodda Lakshmamma — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:33056 RFA No. 2032 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR FIRST APPEAL NO. 2032 OF 2022 (PAR)

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BETWEEN:

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SMT ANUSUYAMMA W/O VENKATESHAPPA, AGED ABOUT 61 YEARS, R/AT THERUBEEDI, MELINAPETE, NEAR POORNA CHICKEN CENTRE, HOSKOTE TOWN, HOSKOTE, BENGALURU RURAL DISTRICT-562114

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…APPELLANT

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(BY SRI. RAHUL.S.REDDY., ADVOCATE)

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AND:

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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SMT. LAKSHMAMMA @ DODDA LAKSHMAMMA D/O GARE NARAYANAPPA, W/O LATE CHIKKA ANJINAPPA, AGED ABOUT 72 YEARS, R/A VARADAPURA VILLAGE, KASABA HOBLI, HOSKOTE TALUK, BENGALURU RURAL DISTRICT-562114

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SMT LAKSHMAMMA

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W/O LATE GARE NARAYANAPPA DEAD BY HER LRS

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SMT. SUNANDAMMA, W./O MUNIVENKATAPPA, AGED ABOUT 67 YEARS,

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2 - NC: 2023:KHC:33056 RFA No. 2032 of 2022

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SMT NAGARATHNAMMA W/O PENDRA, AGED ABOUT 62 YEARS,

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RESPONDENT NOS. 2 AND 3 ARE R/AT THERUBEEDI, MELINAPETE, NEAR POORNA CHICKEN CENTER, HOSKOTE TOWN, HOSKOTE, BENGALURU RURAL DISTRICT-562114

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SMT ANURADHA N W/O LATE SRINIVAS NAIDU, AGED ABOUT 53 YEARS,

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SRI SANTOSH KUMAR S S/O LATE SRINIVAS NAIDU, AGED ABOUT 29 YEARS,

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SRI JANARDHANA S/O LATE SRINIVAS NAIDU, AGED ABOUT 26 YEARS,

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RESPONDENT NOS. 4 TO 6 ARE RESIDING AT NO.72, MUDDALAPPA STREET, LALBAGH MAIN GATE, DODDAMAVALLI, BENGALURU-560004

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SRI NARAYANA MURTHY S/O LATE M ANANTHA PADMANABHA NAIDU, AGED ABOUT 56 YEARS, R/AT NO.52, 2ND FLOOR, YELLAPPA STREET, LALBAGH WEST GATE, CHIKAMAVALLI, BASAVANGUDI, BENGALURU-560004

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SRI SATHISH KUMAR S/O LATE M. ANANTHA

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3 - NC: 2023:KHC:33056 RFA No. 2032 of 2022

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PADMANABHA NAIDU, AGED ABOUT 56 YEARS, R/AT NO.12/2, KRUMBIGAL ROAD, R V PUBLIC SCHOOL, UPPARAHALLI, BASAVANAGUDI, BENGALURU-560004.

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…RESPONDENTS

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(BY SRI DAYANANDA K.G., ADVOCATE FOR R1,

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R2 HELD SUFFICIENT, VIDE ORDER DATED 29.08.2023, SRI P.M.GOPI ADVOCATE FOR

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SRI P.M.SIDDAMALLAPPA, ADVOCATE FOR R3 TO R8)

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THIS RFA IS FILED UNDER SEC.96 OF CPC., 1908 AGAINST JUDGMENT DATED 07.06.2022 PASSED IN FDP NO.41/2013 ON THE FILE OF THE C/C II ADDITIONAL SENIOR CIVIL JUDGE BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING THE PETITION FILED UNDER ORDER 18 RULE 20 OF CPC.

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

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JUDGMENT

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Heard the learned counsel for appellant and counsel appearing for the respondent. This matter is listed for admission.

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This appeal is filed challenging the order of the Trial Court passed in FDP No.41/2013 wherein the Trial Court appointed the ADLR to measure the property and show the road to access for each sharers of the parties since earlier reports not contains any road for access to

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NC: 2023:KHC:33056 RFA No. 2032 of 2022

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each of the parties and said order was passed on 02.03.2022. The said order is passed When these appellants have objected for the commissioner report stating that no margin is left for ingress and egress in respect of all 5 identified shares, when the said submission was made and also taking into the said submission, the report is set aside to the extent of non showing of proper road to each sharer and directed ADLR, Hosakote to resurvey the decreetal property and ensure that all 5 sharers get accessible road margin measuring 30 feet towards eastern side, before that ADLR is directed to issue notice to all the parties concerned and also respective counsel if the address of the counsel furnished to ADLR. Thereafter the ADLR visited the spot and issued notice on 28.03.2022 and specifically mentioned that these appellants have not taken the notice and also while conducting the mahazar specifically mentioned that notices are given to the parties as well as advocates. Now, the counsel appearing for the appellant would contend that no notice was served on them.

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NC: 2023:KHC:33056 RFA No. 2032 of 2022

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It is not in dispute that when the order was passed by the Trial Court while appointing ADLR to resurvey the decreetal property and ensure that all 5 sharers get accessible road margin measuring 30 feet towards western side, before that the ADLR is directed to issue notice to all the parties concerned and also to the respective counsels if the address of the counsel is furnished to ADLR. Hence it is clear that this order was passed in the presence of the respective parties.

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It is not the case of the appellants that they have furnished the address to the ADLR, when the mahazar is very clear that notice was issued and also when the spot inspection was conducted, first of all they have not received the notice and also the mahazar is very clear that they were not present. No doubt the appellant has also filed the objections to the commissioner report and only contend that no such notice was issued and whether they have furnished the address to the ADLR by

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6 - NC: 2023:KHC:33056 RFA No. 2032 of 2022

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the counsel, not stated anything but only contention that commissioner report is accepted without notice.

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Having perused the material on record, it is not

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in dispute that earlier also Commissioner was appointed and Commissioner report was given and same was also objected and the order is very clear that only in respect of road was not left to access the property of each sharer and only to that extent the earlier report is set aside and ADLR is directed to resurvey before the margin and conducted the mahazar and copy of the same is also produced before the Court, the notice was issued on 28.03.2022 and mahazar is also clear that these appellants have not participated while making the resurvey and sketch is very clear that now in order to access the item No.1 to 3 road margin is also given to each of the sharers and only contention that they have not complied with Section 54 of CPC. The said contention cannot be accepted when they have participated in the earlier survey and only objections was raised with regard

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NC: 2023:KHC:33056 RFA No. 2032 of 2022

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to the no access to the road and subsequently conducted the inspection and shown the road margin to all the parties and given the report as directed by the Court.

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The Trial Court has also taken note of the said aspect accepting the Commissioner report subsequently filed by the ADLR and on perusal of the order of the Trial Court while accepting the commissioner report in paragraph No.13 taken note of earlier commissioner report was received by the Court and the same was set aside on 19.03.2022 by directing the ADLR, Hosakote to conduct the resurvey by ensuring that all 5 sharers get accessible road measuring 30 feet towards western side of all the items. Accordingly, modified survey report was received by the Court on 16.04.2022. The report was prepared on 13.04.2022 which contains signature of all the parties except respondent Nos.2 and 3 i.e., appellants herein who

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did not present when re-survey was conducted.

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The Court has also made an observation that

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there is no hurdle in accepting the commissioner report

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8 - NC: 2023:KHC:33056 RFA No. 2032 of 2022

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and also made an observation that respondent No.2 and 3 have filed objection statement and there is a bad motive in filing objections since they are enjoying the entire extent of properties and they are trying to protract the proceedings as much they can. The records also discloses that objection has also filed to the earlier report and earlier report objection is only with regard to no road is shown to access the property. Hence fresh commissioner was appointed and direction was given and accordingly the ADLR given the report and shown the road access to each of sharers. Hence, the Trial Court taking note of the said fact into consideration drawn the final decree petition.

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The counsel for respondents would also submits that in terms of the FDP order already FDP is drawn and executed the order. Only the contention of the appellant that the ADLR is also not equivalent to the Tahasildar and the said contention cannot be accepted when the ADLR appointed before the Trial Court and the very counsel representing the appellant was also present and their

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9 - NC: 2023:KHC:33056 RFA No. 2032 of 2022

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instance only that earlier commissioner report was set aside only to the ingress and egress the property which was allotted to the sharers and limited purpose only ADLR was appointed and in their presence only order was passed when such being the case, the very contention of the counsel for appellant that Section 54 of CPC has not been complied which cannot be accepted.

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The other contention that no proper service also cannot be accepted, since the notice dated 28.03.2022 is also very clear wherein they have specifically made a reference that they have not taken the notice and mahazar also discloses that not only notice was given to the parties even to the respective counsels also and order of the Trial Court is very clear that the appellants’ counsel has to furnish the correct address to the ADLR and it is not their case that they have furnished the same as directed by the Court. Now, cannot find fault with the report of the ADLR. Hence, I do not find any merit to admit the appeal, the Trial Court has already taking into consideration of

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NC: 2023:KHC:33056 RFA No. 2032 of 2022

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10 -

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material on record comes to the conclusion that the

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appellant herein are protracting in each share since they are enjoying the property and not ready to give shares to the other sharers. Hence, there is no merit to admit the appeal.

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In view of the discussion made above, I pass the following:

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ORDER

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The appeal is dismissed.

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Sd/JUDGE

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RHS

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List No.: 1 Sl No.: 59

Smt Anusuyamma v. Smt Lakshmamma @ Dodda Lakshmamma

Case brief

What is this about?

What did the court decide?

Smt Anusuyamma v. Smt Lakshmamma @ Dodda Lakshmamma

Case brief

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