Partly allowed

H Srinivas Pai v. Rathna D Hegde

Karnataka HC1 Sept 2023RSA/339/2023

Case brief

AI extract

What is this about?

In this regular second appeal against a dismissal, the High Court of Karnataka refused admission to challenge the partition scheme. The appellants argued the 5-meter internal road was insufficient per Zonal Regulations, but the Court found no ground for interference as the lower courts did not act perversely in rejecting the claim for a wider pathway.

What did the court decide?

Admission of the second appeal refused and the appeal dismissed.

H Srinivas Pai Vs Rathna D Hegde — Partition | Karnataka HC (2023)

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NC: 2023:KHC:31645 RSA No. 339 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST 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 SECOND APPEAL NO. 339 OF 2023 (PAR)

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BETWEEN:

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H. SRINIVAS PAI S/O LATE H. SRIDHAR PAI, AGED ABOUT 60 YEARS,

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H. SATHISH PAI S/O LATE H. SRIDHAR PAI, AGED ABOUT 59 YEARS,

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BOTH ARE THE SONS OF LATE H. SRIDHAR PAI RESIDING AT DOOR NO 6-1-14, BAILUR WARD OF UDUPI CITY MUNICIPALITY OPP. TALUK OFFICE, UDUPI - 576 101.

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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…APPELLANTS

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(BY SRI YESHU MISHRA, ADVOCATE FOR SRI SANDEEP LAHARI & SMT. DEEPIKA JOSHI, ADVOCATES)

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AND:

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RATHNA D. HEGDE AGED ABOUT 71 YEARS, D/O LATE H. VITTAL PAI, W/O DAMODAR HEGDE, RESIDING AT 2C, POOJAPURA APARTMENTS, 130 ST. MARY’S ROAD, CHENNAI - 600 018.

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LATHA HARSHA CHANDRASHEKAR AGED ABOUT 61 YEARS, D/O LATE H VITTAL PAI, W/O HARSHA CHHANDRASHEKAR, HULAGADRI 418, 11^TH MAIN 1^ST CROSS, SARASWATHIPURAM MYSORE - 570 009.

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…RESPONDENTS

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(BY SRI A. RAVISHANKAR, ADVOCATE FOR R1 AND R2)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 28.09.2022 PASSED IN R.A.No.14/2022 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, UDUPI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 03.12.2021 PASSED IN FDP NO.8/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, UDUPI, ALLOWING THE PETITION FILED UNDER ORDER XX RULE 12 AND 18 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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This matter is listed for admission.

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Heard the appellants counsel and also the counsel appearing for the respondents.

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The factual matrix of the case of the parties are, originally suit is filed for the relief of partition in O.S.No.15/1991 wherein 1/3^rd share is claimed and delivery of the same to the plaintiffs with the share of income from

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12.02.1990 till delivery of the same. The suit of the plaintiffs was decreed granting 1/3^rd share in the plaint ‘A’ schedule property and accordingly the defendants are directed to divide the plaint ‘A’ schedule property into 3 equal shares by metes and bounds and to allot 1/3^rd share to the plaintiffs. Consequently, FPD No.8/2011 is filed wherein Commissioner was also appointed and in terms of the Commissioner’s report, he got measured the property and demarcated the property.

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The Trial Court having considered the Court Commissioner’s report, accepted the report and ordered to draw the final decree and drawing of final decree is based on the Commissioner’s report dated 21.8.2015 and also further Court Commissioner’s report dated 19.7.2019 and sketch. After taking necessary stamp duty from the concerned parties, ‘A’ schedule of Commissioner’s report dated 21.8.2015 allotted to the share of the plaintiffs and ‘B’ and ‘C’ schedule property in terms of the Commissioner’s report dated 21.8.2015 allotted to the share of respondents/defendants. ‘D’ schedule reserved as road for access to all the ‘A’ to ‘C’ schedule lands as per Commissioner’s report dated 21.8.2015. The parties are also

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NC: 2023:KHC:31645 RSA No. 339 of 2023

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directed to remove 8 coconut trees and 3 jack fruit trees and compound wall touching the Tar road as stated by the Commissioner. Further report dated 19.7.2019 for enjoying the ‘A’, ‘B’, ‘C’, schedule property for the respective sharers. The respondents are also directed to allow the appellants to draw water by installation of necessary pipe connecting to the pipe located in ‘C’ schedule property. The same is challenged in R.A.No.14/2022 and the First Appellate Court having considered the grounds urged in the appeal formulated the points, whether the scheme of partition submitted by the Court Commissioner is not proper and whether the impugned order of the Trial Court is perverse, capricious and unsustainable under law. Is there any necessity to intervene in the impugned order of the Trial Court. The First Appellate Court having reconsidered the material available on record including considering the Commissioner report and also considering the ‘A’, ‘B’, ‘C’, schedule as well as ‘D’ schedule property, which is pathway and the same is part and parcel of a single piece of land i.e. ‘A’, ‘B’, ‘C’ properties and also the ‘D’ schedule property and discussed in detail in paragraph Nos.15, 16, 17 and 18 and turned down the claim of the appellants herein to provide 7.5

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meters road i.e. ‘D’ schedule property and dismissed the appeal in coming to the conclusion that the Trial Court order not warrants any interference and also taken note of the property which is the single property and located attached to the main road where there is a provision made to 5 meters road which leads to ‘B’ and ‘C’ schedule property and dismissed the appeal. Hence, the present second appeal is filed before this Court.

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The main contention of the counsel appearing for the appellants that the judgment dated 28.09.2022 is perverse, erroneous and liable to be set aside and the First Appellate Court has not considered the grounds urged by the appellants in its proper perspective.

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The counsel also would vehemently contend that, the First Appellate Court has failed to set aside the final decree by rejecting the unjust, unfair, inequitable, unreasonable and ambiguous report filed by the Court Commissioner. It has ignored the fact that the Court Commissioner on his own showing grossly erred in dividing the property in question without properly valuing the shares carved out by him having regard to the frontage, valuation, proximity to the main road.

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It is also contended that the schedule property has been divided into 3 equal shares by the Commissioner in the FDP Proceedings of 14 ½ cents each. A perusal of Annexure C, C1 and C2 would show that, ‘A’ schedule property therein abutting the main road has fallen to the share of the respondents, ‘B’ and ‘C’ schedule property which are at the rear portion has fallen to the share of the appellants and ‘D’ schedule property is a pathway to facilitate ingress and egress to the ‘B’ and ‘C’ schedule properties and for the common use of the appellants and the respondents. The impugned order fails to consider that the Court Commissioner’s report does not disclose the value of the schedule property and the effect of partition on the value of the property.

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The counsel also vehemently contend that the First Appellate Court fails to consider that the ‘D’ schedule property i.e. 5 meter pathway left to the use of the appellants is impractical and unfavourable to the appellants. The ‘B’ and ‘C’ schedule property is left without sufficient ingress and egress thereby reducing its value and limiting the options for future development and optimal utilization of the property. It is also contended by the counsel that, as per the Zonal Regulations

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and Master Plan prepared by the Udupi Urban Development Authority, pathway of minimum 7.5 meters is necessary, without which development of the property is not possible. Without considering the same, the Court Commissioner has arbitrarily provided for 5 meter pathway, according to which the final decree has been passed by the Trial Court is erroneous, perverse and Appellate Court also failed to consider the same and hence, it requires interference. The counsel also placed the rough sketch document before the Court while arguing the same.

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Per contra, the counsel appearing for the respondents would vehemently contend that both the Trial Court and the First Appellate Court while accepting the Commissioner’s report taken note of the Commissioner’s report wherein clearly demarcated the property as ‘A’, ‘B’, ‘C’ and also proposed internal road is to the extent of 5 meters which comes around 16 ½ feet and the Commissioner’s report was not objected by filing statement of objections before the Trial Court. Only adduced the evidence and suggestions are made that 7.5 meters road is ideal to the property of ‘B’ and ‘C’ schedule property and Court has to take note of the F.A.R. and

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when the objection is not filed to the Commissioner’s report, now they cannot contend the same. Even without any objections both the Courts dealt with considering the material on record and also taken note of the Commissioner’s report. The counsel brought to notice of this Court paragraphs No.15, 16, 17 and also 18 with regard to the very claim made by the appellants herein to the extent of 7.5 meters road and the same was not accepted and rejected the claim of the appellants herein. The counsel appearing for the respondents also brought to notice of this Court the finding given by the Appellate Court also in paragraphs No.15, 16 and 17, wherein detailed discussion was made with regard to requirement of 7.5 meters of pathway to reach his property which he has demanded and also taken note of the property is a single piece of property and the same is also a private property and also comes to the conclusion that, 5 meters of road will be more than 16 feet width over which the appellants will also have right of ingress and egress and the very claim of 7.5 meters of road as per Urban Development Rules and FIR policy cannot be considered by this Court and rejected the same. Both the Courts have given the finding based on the material on record and the same

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is not suffers from any perversity and it does not requires any ground to interfere with the finding and no ground to admit and frame substantive question of law by admitting the second appeal.

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Having heard the respective counsel and also on perusal of the material available on record, it is not in dispute that the suit is filed for the relief of partition in the year 1991, almost 32 years have been elapsed and also it is the undisputed fact that even parties have also approached the highest Court of this Country i.e. the Apex court and ultimately the judgment was delivered in O.S.No.15/1991 vide order dated 28.8.2010 and thereafter the FDP proceedings also initiated in FDP No.8/2011 and both the parties have heard while passing the final decree petition. It is not in dispute that the Commissioner was appointed before the Final Decree Petition No.8/2011 and Commissioner is also submitted his report. Admittedly, no objection is filed to the Commissioner’s report with regard to the claim of 7.5 meters as claimed in this appeal and also evidence has been led before the Trial Court with regard to the claim of 7.5 meters and the same has been considered by the Final Decree Petition No.8/2011 particularly

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in paragraph No.18. Considering the ‘A’, ‘B’, ‘C’ schedule property and road provided to the said property which is marked as ‘D’ schedule as road and also the Trial Court taken note of the contention of the respondents that Court Commissioner should have shown 7.5 meters road. The Court Commissioner already noted that 8 coconut trees and 3 jack fruit trees have to be removed for the enjoyment of their respective properties and compound wall has to be removed to the extent of width of the road to freely enter ‘D’ schedule road. So far as ‘ Well’ in respect of ‘C’ schedule property is concerned, the same is also taken note of and hence, the claim with regard to 7.5 meters road was declined to grant in favour of the appellants. Being aggrieved of the said order, an appeal is filed and in the appeal also the very same ground has been urged by the appellants and the same is also considered in paragraph No.15 with regard to the claim of 7.5 meters of road.

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The counsel also would vehemently contend that

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the Zonal Regulation and Building Bye-law standards for roads is 7.5 meters, streets in residential area category of streets, minimum right of way and admittedly the present suit schedule

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property is a private property and the same is a single piece of land which also measures 14 ½ cents and the same has been divided into three parts as ‘A’, ‘B’, ‘C’ property. It is also important to note that when the Commissioner went to the spot and inspected, measured the same and also divided the same as ‘A’ to ‘C’ schedule properties and also earmarked ‘D’ schedule as pathway in order to ingress and egress the ‘B’ and ‘C’ schedule property and the said fact is also taken note of by the First Appellate Court and having taken note of 5 meters is provided as ‘D’ schedule as road taken note of it will be more than 16 feet in width over which the appellants are also right of ingress and egress the pathway i.e. ‘D’ schedule property is for common use of appellants and respondents and when the property itself is small holding, the contention of the respondents that they require 7.5 meters of road as per Urban Development Rules and F.A.R. policy cannot be considered by this Court. The Appellate Court also taken note of the nature of the property as well as the entire extent of the property wherein the same has been divided as ‘A’, ‘B’, and ‘C’ schedule property and road is also for 5 meters will be more than 16 feet in width and easily the two vehicles can move at a time even

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including the truck and the same is also observed in the order. When such concurrent finding is given by the Trial Court in Final Decree Proceedings as well as the First Appellate Court has taken note of 5 meters road has already been provided in order to reach the property of ‘B’ and ‘C’ schedule property and the same is around more than 16 feet and the said road is also made in order to access the ‘B’ and ‘C’ schedule property, which is marked in the Commissioner’s report. When such being the case, the very contention of the appellants counsel ought to have been provided 7.5 meters of road cannot be accepted and the said contention was also not taken at the first instance when the Commissioner’s report was filed. Only during the course of evidence the said contention was raised and in writing while filing objections to report not took the contention, it appears the said contention is taken after thought during the course of evidence and if really the said 5 meters of road causing inconvenience ought to have been taken in the objection statement itself and when such being the case, even when the private property is divided as ‘A’, ‘B’, ‘C’ schedule property and 5 meters has already earmarked to ingress and egress the ‘B’ and ‘C’ schedule property and the very

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contention of the counsel that F.A.R. will be more in respect of the property which is abutting to the main road cannot be accepted at this stage when the Trial Court and First Appellate Court also having taken note of the fact that 5 meters road is enough for ingress and egress of the property of ‘B’ and ‘C’ schedule property and the said contention of the appellants counsel cannot be accepted. Both the Courts have taken note of the location of the property and also the entire measurement of the property and the same has been divided as ‘A’, ‘B’, and ‘C’ schedule property and allotted the said property and now cannot contend that to provide 7.5 meters of road contending that Zonal Regulation Act is applicable and the said contention also cannot be accepted for the reason that the standard for roads is concerned, streets in residential area category of streets is concerned and this provision is made in a private property into ingress and egress of the property belongs to the parties and this property belongs originally single piece of property and provision is made to access the land of ‘A’, ‘B’, and ‘C’ property, which has allotted in favour of the appellants is concerned and hence the very contention that it requires 7.5. meters in terms of the Zonal Regulation cannot be accepted

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and hence, I do not find any error committed by the Trial Court and First Appellate Court and not committed any perversity in considering the case of the appellants and taken note of the existence of the property and road provided to the parties taken note of interest of all the parties and hence, I do not find

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any ground to admit and to frame any substantive question of law in the second appeal.

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The counsel for the appellants also contend that in the Commissioner’s report in respect of ‘D’ schedule property kept as a common road to enter into the property ‘B’ and ‘C’ schedule. The counsel would vehemently contend that the said property exclusively for the use of ‘B’ and ‘C’ property and no such report is filed by the Commissioner that the same should be used exclusively by the owners of the ‘B’ and ‘C’ schedule property and it is only mentioned as ‘D’ schedule property kept as a common road to enter into the property of ‘B’ and ‘C’ schedule property and the same cannot be made as exclusively for the use of ‘B’ and ‘C’ schedule property.

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NC: 2023:KHC:31645 RSA No. 339 of 2023

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In view of the discussions made above, I pass the

following.

ORDER

Appeal is dismissed.

Sd/JUDGE

RHS/AP

List No.: 1 Sl No.: 68

H Srinivas Pai v. Rathna D Hegde

Case brief

What is this about?

What did the court decide?

H Srinivas Pai v. Rathna D Hegde

Case brief

What is this about?

What did the court decide?

What the court decided

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