Dismissed

Smt.M.M.Padmavathi v. Sri.M.R.Nagaraja Rao

Karnataka HC13 Feb 2023RSA/1881/2021

Case brief

AI extract

What is this about?

The High Court dismissed a second appeal challenging a regular appeal and final decree procedure. The court ruled that the Commissioner's report and final decree proceedings correctly excluded the 'B' schedule properties (self-acquired) from partition, limiting the partition to 'A' schedule properties as per the preliminary decree. The appellant's contention that 'B' schedule properties were incor

What did the court decide?

The appeal was dismissed; the interlocutory application for stay was disposed of without consideration.

Smt.M.M.Padmavathi Vs Sri.M.R.Nagaraja Rao — Partition | Karnataka HC (2023)

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1 - RSA No. 1881 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO. 1881 OF 2021 (PAR)

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BETWEEN:

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SMT. M.M.PADMAVATHI AGED ABOUT 83 YEARS W/O LATE SRI M.R.MOHAN RAO

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SMT. VEENA AGED ABOUT 59 YEARS D/O LATE SRI M.R. MOHAN RAO R/O FLAT NO.212, KALPATARU APARTMENTS PUTTENAHALLI J.P. NAGAR 7^TH PHASE BENGALURU - 560078

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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SRI M.M. VIJAYA KUMAR AGED ABOUT 51 YEARS S/O LATE M.R. MOHAN RAO

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SRI SURESH KUMAR AGED ABOUT 50 YEARS S/O LATE M.R. MOHAN RAO

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APPELLANTS 1, 3 AND 4 ARE RESIDENTS OF SODLURU KATTEMADU VILLAGE -571251 MADIKERI TALUK KODAGU DISTRICT

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

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RSA No. 1881 of 2021

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AND:

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SRI.M.R.NAGARAJA RAO AGED ABOUT 75 YEARS S/O LATE M. RAMA RAO NO.39/111, I ‘D’ CROSS ROAD REMCO LAYOUT, VIJAYANAGAR BENGALURU – 560 040.

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MISS. M.R. NAGARATHNA AGED ABOUT 63 YEARS D/O LATE M. RAOA RAO STAFF NURSE, ROOM NO.16A, NURSE HOSTEL, K.R.HOSPITAL MYSURU - 570001

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SMT. M.R. JAMUNA AGED ABOUT 59 YEARS W/O THARANATHA RAO NO.2931/E, CHORD ROAD EST VIJAYANAGAR, BENGALURU-560040

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SRI M.R. JAGADISH AGED ABOUT 56 YEARS S/O LATE RAMA RAO NO.4747, UPSTAIRS GANESH TEMPLE STREET N.R. MOHALLA , MYSURU -570007

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SMT. M.R. GOWRAMMA AGED ABOUT 54 YEARS D/O LATE M.RAMA RAO NO.4747, UPSTAIRS GANESH TEMPLE STREET N.R. MOHALLA , MYSURU -570007

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SRI RAGHAVENDRA D. RAO AGED ABOUT 39 YEARS S/O LATE DIWAKARA S. RAO SHREE PRASAD APARTMENTS NO.A – 201, NEAR BHAVIKAI HIGH SCHOOL PARSIK ROAD, PAKHADI

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RSA No. 1881 of 2021

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KHAREGAON, KALWA WEST THANE - 400605 , MAHARASHTRA

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SMT. APARNA NAVEEN RAO D/O LATE DIWARAKA S RAO W/O NAVEEN RAO AGED ABOUT 44 YEARS NO.14/3, ‘GURU KRUPA’ B-WING, NEAR WATER TANK GANAPATHI TEMPLE ROAD DOMBIVILI EAST MAHARSHTRA 421201

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SANTHOSH KUMAR AGED ABOUT 34 YEARS S/O LATE P.S. VARADAIAH R/O BLOCK NO.10, J.SEETHA NIVAS 1 FLOOR, PATKAR ROAD DOMBIVILI EAST-421201 MAHARASTHRA

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SMT. PADMA S. RAO AGED ABOUT 49 YEARS W/O LATE P. SADANANDA RAO NO.501, ‘VASANTHA VIHAR’ BALA RAJESHAR ROAD VYSHALI NAGAR, MULUND MUMBAI - 400080

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NITHIN S.RAO S/O LATE P.SADANANDA RAO AGED ABOUT 34 YEARS NO.501, ‘VASANTHA VIHAR’ BALA RAJESHWAR ROAD VYSHALINAGAR, MULUND MUMBAI - 400080

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SMT. SAROJA NATWARLAL W/O NATWARLAL KOYA AGED ABOUT 64 YEARS R/O KRISHNA KUNJ , GROUND FLOOR OPP. TO NEW BHAJI MARKET KALYAN, MAHARASTHRA

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RSA No. 1881 of 2021

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SMT. GULABI MOHAN DHARESHWAR W/O MOHAN DHARESHWAR AGED ABOUT 63 YEARS R/O NO.C-201, POOJA CO-OPERATIVE SOCIETY BEHIND B.M.C.SCHOOL OPP. TO IIT POWAI MUMBAI - 400076

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SMT. RADHA CHIDAMABAR AGED ABOURT 60 YEARS W/O CHIDAMBAR R/O NO.504, TAKSHILA NIRMALA NAGAR NEXT TO KRISHNA MOTORS MULUND WEST MUMBAI - 400080

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RAMAKRISHNA S. RAO AGED ABOUT 57 YEARS S/O LATE P. SRINIVASA RAO R/O BUILDING NO.38 ROOM NO.1213 GROUND FLOOR TAGORE NAGAR DHANALAKSHMI HOUSE CO-OPERATIVE SOCIETY, VIKHROLI EAST MUMBAI - 400083

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SMT. VASUNDARA JAYAWANTH AGED ABOUT 54 YEARS W/O. JAYAWANTH R/O. BUILDING NO.38, ROOM NO.1213 GROUND FLOOR, TAGORE NAGAR DHANALAKSHMI HOUSE CO-OPERATIVE SOCIETY, VIKHROLI EAST MUMBAI - 400083

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SMT. SAROJA V. SHARMA AGED ABOUT 62 YEARS

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RSA No. 1881 of 2021

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D/O LATE P.RAMAKRISHNA RAO W/O VIDYASAGAR SHARMA R/O NO.1-A, DECCAN CORNER APARTMENT VAS LANE MANGALORE – 575002

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SMT SHOBA SATHISH KUMAR AGED ABOUT 59 YEARS D/O LATE P.RAMAKRISHNA RAO W/O SATHISHKUMAR R/O NO.12, “PRASHANTH” CANARA BANK HOUSING SOCIETY PATEL ESTATE, JOGESHWARI WEST MUMBAI - 400102

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SMT.SAVITHA VEERARAGHAVAN AGED ABOUT 56 YEARS D/O LATE S. RAMAKRISHNA RAO W/O VEERARAGHAVAN R/O NO.9/5, SAMARTH NAGAR CHAUNBHATTI MUMBAI – 400022

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SMT. KAMAVVA AGED ABOUT 59 YEARS W/O LATE SADERA CHINGAPPA SUDLUR KATTEMADU VILLAGE-571252 MADIKERI TALUK

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SADERA THIMMAIAH AGED ABOUT 63 YEARS S/O LATE SADERA POOVAIAH R/O SUDLUR KATTEMADU VILLAGE -571252 MADIKERI TALUK

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SADERA THAMMAIAH AGED ABOUT 60 YEARS S/O LATE SADERA POOVAIAH R/O SUDLUR KATTEMADU VILLAGE -571252 MADIKERI TALUK

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RSA No. 1881 of 2021

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SMT. JUBINI @ JUBY AGED ABOUT 44 YEARS S/O LATE SADERA DEVAIAH R/O SUDLUR KATTEMADU VILLAGE -571252 MADIKERI TALUK

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SADERA CHINNAPPA S/O LATE SADERA DEVAIAH AGED ABOUT 28 YEARS R/O SUDLUR KATTEMADU VILLAGE-571252 MADIKERI TALUK

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SMT. CHONDAVVA AGED ABOUT 74 YEARS S/O LATE SADERA MANDAPPA

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R/O SUDLUR KATTEMADU VILLAGE-571252 MADIKERI TALUK

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SADERA M.MONNAPPA AGED ABOUT 46 YEARS S/O LATE SADERA MANDAPP R/O SUDLUR KATTEMADU VILLAGE -571252 MADIKERI TALUK

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SADERA BHEEMAIAH AGED ABOUT 47 YEARS S/O LATE SADERA M.MANGAPPA R/O SUDLUR KATTEMADU VILLAGE-571252 MADIKERI TALUK

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SMT. DEVAMMA AGED ABOUT 49 YEARS D/O LATE SADERA MANDAPPA W/O ARJUN R/O SUDLUR KATTEMADU VILLAGE-571252 MADIKERI TALUK

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SMT. SARASWATHI UMESH AGE: MAJOR, W/O UMESH D/O LATE SADERA MANDAPPA DEVANAGERI VILLAGE AND POST

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RSA No. 1881 of 2021

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VIRAJPET TALUK

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STM. AKKAMMA AGED ABOUT 59 YEARS S/O LATE SADERA KAVERAPPA R/O SUDLUR KATTEMADU VILLAGE-571252 MADIKERI TALUK

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SADERA SUBBAIAH S/O LATE SADERA KAVERAPPA AGED ABOUT 39 YEARS R/O SUDLUR KATTEMADU VILLAGE-571252 MADIKERI TALUK

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MISS. SADERA CEASER AGED ABOUT 42 YEARS D/O LATE SADERA KAVERAPPA R/O SUDLUR KATTEMADU VILLAGE-571252 MADIKERI TALUK

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SADERA POONACHA AGED ABOUT 64 YEARS S/O LATE SADERA KUTTAPPA R/O SUDLUR KATTEMADU VILLAGE-571252 MADIKERI TALUK

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…RESPONDENTS

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(BY SRI. RANJAN KUMAR K., ADVOCATE FOR C/R1)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 10.03.2021 PASSED IN RA.No.09/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADIKERI, DISMISSING THE APPEAL AND FILED AGAINST THE ORDER DATED 25.10.2018 PASSED IN FDP No.3/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, MADIKERI, ALLOWING THE PETITION FILED UNDER SECTION 54 OF CPC.

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

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RSA No. 1881 of 2021

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JUDGMENT

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This matter is listed for admission

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today.

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Heard the learned counsel appearing for the appellants and the learned counsel appearing for caveator/respondent No.1.

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This appeal is filed challenging the judgment and decree dated 10.03.2021 passed in R.A.No.09/2018 on the file of the Senior Civil Judge at Madikeri.

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The factual matrix of the case of plaintiffs before

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the Trial Court is that they have filed a suit for the relief of partition. In the suit schedule, it is described as ‘A’ schedule properties and ‘B’ schedule properties. The defendants took up the specific defense in the written statement is that ‘B’ schedule properties exclusively belongs to defendant No.1 and the same is the self-acquired property. The Trial Court accepted the defense of defendant No.1 and came to the conclusion that ‘B’ schedule properties exclusively belongs to defendant No.1 and granted share only in respect of ‘A’ schedule properties and there were 14 items in the ‘A’ schedule properties.

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RSA No. 1881 of 2021

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The Regular Appeal No.09/2018 filed by the plaintiffs in respect of ‘B’ schedule properties was dismissed and confirmed the judgment of the Trial Court. Thereafter, the final decree proceeding was also initiated and the same is numbered as FDP No.3/2008. The final decree proceeding was also drawn based on the report of the Commissioner.

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Now, the contention of defendant No.1 before this Court is that even ‘B’ schedule properties was also included while partitioning the property in FDP proceedings. Hence, the substantial question of law involves before this Court is that the report of the Commissioner is in variance with the preliminary decree. Hence, this Court has to frame the substantial question of law and drawing up of final decree is also contrary to the judgment and the preliminary decree. Hence, it requires interference.

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Per contra, the learned counsel appearing for caveator/respondent No.1 would submit that no ‘B’ schedule properties are included while partitioning the property and drawing up of the final decree proceedings in FDP No.3/2008. The learned counsel also brought to the notice of this Court

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10 -

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RSA No. 1881 of 2021

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that in the very same survey number, there are different extents of land are available. The Commissioner report is only in respect of what the exact extent is involved in granting the share in respect of ‘A’ schedule properties and ‘B’ schedule property is not included in drawing up of the final decree proceedings.

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Having heard the respective counsel and on perusal of the material available on record, no doubt, both in respect of ‘A’ schedule and ‘B’ schedule properties, the Sy.No.258/1 and Sy.No.261/1 are included, but the extent is different. The extent which was partitioned in terms of the compromise is also to the extent of decree is granted in the preliminary decree. When such being the case, the very contention of the learned counsel for the appellants cannot be accepted.

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The learned counsel appearing for respondent No.1 also would submit that ‘B’ schedule properties was already sold in favour of defendant Nos.7 to 11 and they are also the parties to the final decree proceedings and they have not objected for the partition in terms of the final decree proceedings. The very apprehension of the appellants is that the ‘B’ schedule

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11 -

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RSA No. 1881 of 2021

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properties is also included in the Commissioner Report, cannot be accepted. The Commissioner visited the spot and filed the report. Based on the report, the final decree proceeding was drawn. Hence, I do not find any force in the contention of the learned counsel appearing for the appellants that even ‘B’ schedule properties was also included in the ‘A’ schedule properties, which was the subject matter of the partition. Hence, no merit in the appeal.

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In view of the discussions made above, I pass the

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following:

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ORDER

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The appeal is dismissed.

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In view of dismissal of the appeal, I.A.No.1/2021 for stay

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does not survive for consideration and the same stands disposed of.

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Sd/JUDGE

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CP List No.: 1 Sl No.: 36

Smt.M.M.Padmavathi v. Sri.M.R.Nagaraja Rao

Case brief

What is this about?

What did the court decide?

Smt.M.M.Padmavathi v. Sri.M.R.Nagaraja Rao

Case brief

What is this about?

What did the court decide?

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