Dismissed

Sri Seetharama Shetty v. Smt Lakshmi

Karnataka HC12 Jul 2023RSA/1178/2016

Case brief

AI extract

What is this about?

In this regular second appeal challenging a partition decree, the High Court of Karnataka found no grounds to disturb the findings of the lower courts regarding the allocation of a pond and well. Consequently, no substantial question of law arose, and the appeal was dismissed at the admission stage.

What did the court decide?

The Regular Second Appeal is dismissed at the stage of admission itself as no substantial question of law arises for consideration.

Sri Seetharama Shetty Vs Smt Lakshmi — Partition | Karnataka HC (2023)

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NC: 2023:KHC:24137 RSA No. 1178 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI

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REGULAR SECOND APPEAL NO.1178 OF 2016 (PAR)

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BETWEEN:

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SRI. SEETHARAMA SHETTY AGED ABOUT 58 YEARS, S/O LATE SRI. KITTANNA SHETTY, KOLAKEBAIL, MANJANADY VILLAGE, MANGALURU TALUK, D.K - 575 001.

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…APPELLANT (BY SRI. K.CHANDRANATH ARIGA., ADVOCATE)

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AND:

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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SMT. LAKSHMI AGED ABOUT 59 YEARS, W/O LATE SRI. ANANDA, SHANKAR NIVAS, VIJAYANAGAR ANNEXE, KODIKAL, POST: ASHOK NAGAR, MANGALURU, D.K - 574 007.

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…RESPONDENT

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(BY SRI. G.BALAKRISHNA SHASTRY., ADVOCATE)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC., SEEKING CERTAIN RELIEFS.

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

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NC: 2023:KHC:24137 RSA No. 1178 of 2016

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JUDGMENT

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Sri.K.Chandranath Ariga., learned counsel for appellant and Sri.G.Balakrishna Shastry., learned counsel for respondent have appeared in person.

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This is an appeal from the Court of Principal Senior Civil Judge & CJM, Mangaluru, D.K.

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The suit was filed in O.S.No.166/2012 for the relief of Partition. The suit came to be decreed on 21.01.2012 and it was declared that the petitioner/ appellant is entitled for half share in the suit schedule properties and also half share in the mesne profits derived out of the improvements in the schedule "A" properties. A preliminary Decree was drawn. The respondent initiated Final Decree Proceedings in No.22/2013 on the file of Prl. Civil Judge & JMFC, Mangaluru, D.K. The FDP No.22/2013 came to be allowed vide order dated:18.11.2015. Aggrieved by the order passed in the Final Decree Proceedings, the appellant preferred an appeal in R.A.No.5/2016 on the file of Principal Senior Civil Judge & CJM, Mangaluru, D.K. On appeal, the First Appellate Court dismissed the appeal and confirmed the order passed in the Final Decree Proceedings.

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NC: 2023:KHC:24137 RSA No. 1178 of 2016

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Hence, this Regular Second Appeal is filed under Section 100 of CPC.

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Sri.K.Chandranath Ariga., learned counsel for

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appellant submits that the Order passed in the FDP and the Judgment & Decree passed by the First Appellate Court are perverse and unsustainable.

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Next, he submits that the Decree for partition based on Commissioner Report is perverse and impracticable division.

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A further submission is made that both Courts have not considered the objection by appellant in regard to the impracticable division proposed by the Court Commissioner.

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Sri.Chandranath Ariga., learned counsel vehemently contended that there is only one pond. The right to draw water from the pond to both the parties is contentious issue and it will give scope for further litigation between the parties.

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He also submitted that both Courts have not bestowed its attention to the topography of the area and the way leading to the property of the appellant & the respondent.

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NC: 2023:KHC:24137 RSA No. 1178 of 2016

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Lastly, he submits that viewed from any angle, the Order passed in FDP and Judgment & Decree of First Appellate Court are unsustainable. Hence, this Regular Second Appeal may be admitted by framing substantial questions of law.

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Sri.G.Balakrishna Shastry., learned counsel for respondent justified the order passed in Final Decree Proceedings and the Judgment & Decree of the First Appellate Court. Learned counsel has urged several contentions and lastly, he submits that the appeal does not raise any substantial questions. Hence, the same may be dismissed at the stage of admission itself.

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Heard, the contentions urged on behalf of the respective parties and perused the order passed in Final Decree Proceedings and the Judgment & Decree of the First Appellate Court with utmost care.

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The principal ground on which this Court is asked to frame the question of law is that there is only one pond and right to draw water from the pond to both the parties is contentious.

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5 - NC: 2023:KHC:24137 RSA No. 1178 of 2016

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Learned counsel Sri.K.Chandranath Ariga., in presenting his argument vehemently contended that the Commissioner's Report is not based upon the topography of the area. He also argued by saying that both Courts have not bestowed its attention to the Well situated in the property.

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In reply, learned counsel Sri.G.Balakrishna Shastry., argued that the First Appellate Court in extenso referred to the contentions urged on behalf of the parties and concluded that the Well water can be used by both the parties very conveniently and the parties cannot have any objections to the Commissioner's report.

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I find considerable force in the argument of learned counsel for respondent. I have also perused the Judgment of the First Appellate Court. In paragraph No.15 of the Judgment, the First Appellate Judge has referred to the contentions urged on behalf of the respective parties, in particular to the Commissioner Report and has concluded that though there is one pond situated, however the same can be made use of by the parties conveniently. Suffice it to note that there is a path way to reach the Well, hence, there cannot be any objection

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NC: 2023:KHC:24137 RSA No. 1178 of 2016

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and find fault with the Commissioner's report and compel this Court to intervene in the order passed in the Final Decree Proceedings and also in the Regular Appeal.

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I find no grounds to interfere with the findings recorded in Final Decree Proceedings and also the Judgment & Decree of the First Appellate Court in the Regular Appeal.

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No substantial questions of law raises for consideration. Accordingly, the Regular Second Appeal is dismissed at the stage of admission itself.

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Sd/JUDGE

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TKN List No.: 1 Sl No.: 62

Sri Seetharama Shetty v. Smt Lakshmi

Case brief

What is this about?

What did the court decide?

Sri Seetharama Shetty v. Smt Lakshmi

Case brief

What is this about?

What did the court decide?

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