This appeal against a final decree in partition proceedings was dismissed. The court held that the appellants failed to show inequitable partition or hardship regarding item No.3 of 'A' schedule property, noting a lack of evidence from the appellants during cross-examination of the petitioner.
Appeal dismissed as meritless; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO. 390 OF 2008 (PAR)
BETWEEN:
1(A). SMT. SUVARNA P, W/O. LATE SAMPATH M.P, R/AT NO. 4320, G.M. STREET, CHINNASWAMY NILAYA, PETE BIDI MALAVALLI TOWN, MALAVALLI, MANDYA - 571 430.
Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA
MANDYA - 571 430.
NC: 2023:KHC:43783 RFA No. 390 of 2008
R/AT NO. 4320, G.M. STREET, CHINNASWAMY NILAYA, PETE BIDI MALAVALLI TOWN, MALAVALLI, MANDYA - 571 430.
AGED 25 YEARS,
ALL ARE R/AT CHINNASWAMY NILAYA, G. II ROAD, MALAVALLI TOWN, MANDYA DISTRICT, MANDYA.
…APPELLANTS
(BY SRI. N. VINAYAK KAMATH, ADVOCATE FOR APPELLANT AND ALSO FOR P'SD LRS OF DECEASED A1)
AND:
ALL ARE R/AT NO. 3580, 6TH CROSS, TILAK NAGAR, MANDI MOHALLA, MYSORE.
…RESPONDENTS
(BY SRI. SHANTKUMAR ADVOCATE FOR, SRI. H. M. MANJESH ADVOCATE FOR R1(P/H), SRI. K. L. SREENIVAS ADVOCATE FOR R2 AND R4, R3 - DEAD, R1, R2 AND R4 ARE TREATED AS LRS OF DECEASED R3)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGMENT AND ORDER DATED 30.11.2007 PASSED IN FDP. NO. 9/2006 ON THE FILE OF THE CIVIL JUDGE (SR. DN.) AND JMFC., MALAVALLI, ALLOWING THE PETITION FOR EFFECTING PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri.N.Vinayak Kamath, learned counsel for the appellants and Sri.Shantkumar, learned counsel for respondent No.1.
passed by learned Civil Judge (Senior Division) and JMFC, Malavalli, Mandya district, in FDP No.09/2006 dated 30.11.2007.
Final decree proceedings in FDP No.09/2006 was filed
for division of the properties by meats and bounds
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belonging to the parties in pursuance of the decree passed in O.S.No.40/1992 which has been confirmed in RFA No.778/1996.
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therefore, they filed objections. Petitioner No.1 got herself examined as P.W.1 and raised objections with regard to allotment of the suit properties as per the sketches. However, during the course of cross-examination, certain admissions were obtained and thereafter, learned Trial Judge as per the arguments put forth on behalf of the petitioners, the proposal made by Court commissioner vide Ex.C.1, C.2, C.5 and C.6 were allotted to the parties. However, with regard to item No.1 of ‘A’ schedule property, Commissioner proposed that house situated towards South-east corner being the residential house, which is in occupation of respondents and also taking note that strained relationship among the parties, found it suitable that petitioners be allotted with the house situated at South-East corner as per Ex.C.3.
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them and directed that the said house at South East corner be allotted to the petitioners.
"The petition filed by the petitioners is allowed and their together share of 4/45th is allotted as follows;
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'A' SCHDEULE
1. In item No.1 of 'A' schedule the petitioners are allotted house situated towards southeast corner. The respondents shall get it repaired and well furnished.
2. In item No.2, 3, 4 and 6 the petitioners are allotted their share as proposed in Ex.C2, Ex.C1, Ex.C5 and Ex.C6 respectively.
3. With regard to item No.5 the petitioners are allotted the entire vacant site lying in between properties allotted to them in item No.1 and item No.4.
'B' SCHEDULE
1. The petitioners are allotted the entire extent of item No.4 of 'B' schedule bearing Sy.No.158/7 of Amrutheshwaranahalli measuring 1 acre 22 guntas.
2. The respondents are directed to hand over possession to the petitioners accordingly. The petitioners are entitled to get their name entered in the concerned revenue and municipal records as per share allotted to them in this petition.
3. In case of petitioners intended to sell any of the properties allotted to their share the respondents have got right to purchase the same on the market value prevails on that date.
4. Draw final decree accordingly."
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11. Being aggrieved by the same, defendant Nos.2
to 8 have preferred the present appeal on the following grounds:
NC: 2023:KHC:43783 RFA No. 390 of 2008
NC: 2023:KHC:43783 RFA No. 390 of 2008
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Commissioner is incorrect and sought for dismissal of the appeal.
1. Whether the appellants make out a case that allotment of the share to petitioners in item No.3 of ‘A’ schedule property is inequitable and has caused hardship for the appellants?
2. Whether the impugned order to that extent is suffering from legal infirmity or perversity and thus calls for interference of this Court?
3. What order?
REGARDING POINT NOS.1 AND 2:
the petitioners has been modified by this Court in RFA No.778/1996 in respect of item No.1 of ‘B’ schedule
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property and rest of the decree passed by learned Trial Judge in O.S.No.40/1992 was confirmed.
appellants herein by filing the written objections.
the division made by the Commissioner and therefore, she filed objections and also lead evidence. Petitioner No.1
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has been examined as P.W.1 and she has deposed before the Court as to the inequitable partition proposed by the Court Commissioner.
appellants herein.
to the appellants, nobody got examined on behalf of the
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appellants before the Court in final decree proceedings. Under such circumstances, merely filing objections to final decree proceedings itself would not be sufficient enough to turn with the allotment made by learned Trial Judge in the final decree proceedings in respect of item No.3 of ‘A’ schedule property and it has resulted in inequitable partition.
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negative .
REGARDING POINT NO.3 :
ORDER
(i) Appeal is meritless and hereby dismissed.
(ii) No order as to costs.
Sd/JUDGE
KAV List No.: 1 Sl No.: 43
2 issues framed by the court
Whether the allotment of share to petitioners in item No.3 of 'A' schedule property is inequitable and caused hardship to appellants?
Whether the impugned final decree order suffers from legal infirmity or perversity warranting interference?
Late Sri. Sampath by his LRS
Smt. Suvarna P
Smt. D. P. Prabhavathi
V Sribhananda
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
