A second appeal against remand of final decree proceedings in a partition suit where land had been acquired for a ring road. The High Court upheld the appellate court's finding that the trial court wrongly accepted a commissioner's report without first identifying the schedule property, and dismissed the appeal.
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.
NC: 2024:KHC:37772 MSA No. 133 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL NO.133 OF 2017 (RO)
BETWEEN:
…APPELLANT
(BY SRI S RUPESH KUMAR, ADVOCATE)
AND:
REPRESENTED BY
Digitally signed by MALATESH K C
Location: HIGH COURT OF KARNATAKA
SRI T.N.NAGESH SON OF LATE N. NANJUNDEGOWDA M/S.KARNATAKA POLICE HOUSING CO-OPERATIVE SOCIETY MADANAHALLI, LALITHADRIPURA POST MYSURU –REPRESENTED BY ITS PRESIDENT SRI T.N.NAGESH AGED ABOUT 49 YEARS R/O POLICE HOUSING CO-OPERATIVE SOCIETY, NETHAJINAGARA ALANAHALLI MYSORE-28 PRESIDENT OF M/S.KARNATAKA POLICE EMPLOYEES HOUSE BUILDING CO-OPERATIVE
NC: 2024:KHC:37772 MSA No. 133 of 2017
SOCIETY
REPONDENT 2 TO 6 ARE R/AT LALITHADRIPURA VILLAGE, VARUNA HOBLI, MYSORE TALUK AND DISTRICT.
…RESPONDENTS
(BY SRI K.R.KRISHNAMURTHY, ADVOCATE FOR R1(A); R2 TO R6 ARE SERVED AND UNREPRESENTED)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF THE CPC., AGAINST THE JUDGMENT AND DECREE DATED 15.09.2017 PASSED IN RA NO.190/2017 ON THE FILE OF THE III ADDITIONAL DISTIRCT JUDGE, AT MYSURU ALLOWING THE APPEAL AND SETTING ASIDE JUDGMENT AND DECREE DATED 22.04.2017 PASSED IN FDP NO.27/2011 ON THE FILE OF THE PRINCIPAL SMALL CAUSES AND SENIOR CIVIL JUDGE, AT
MYSURU ALLOWING THE PETITION UNDER ORDER 20 RULE 18 OF CPC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri Rupesh Kumar, learned counsel for the appellant and K.R. Krishnamurthy, learned counsel for respondent No.1 (a).
NC: 2024:KHC:37772 MSA No. 133 of 2017
preliminary decree and Final Decree Proceedings were initiated in FDP No.27/2011.
NC: 2024:KHC:37772 MSA No. 133 of 2017
“16. Instead of doing this, the Court Commissioner has prepared the sketch for entire extent of 2 Acres 6 Guntas of the Sy.No.19/1 and in the said sketch, he has shown 38 guntas in Blue Colour as having been acquired for Ring Road, 8 ½ guntas in Orange Colour and 5 Guntas in Yellow Colour to have been formed into road and shown the remaining portions of 12 Guntas each in Green and Red Colours to be the vacant land available and 6½ guntas in Black Colour is shown to have been formed into sites by the appellant's society. On this basis, the Court Commissioner has opined that 12 guntas of vacant land shown in Red Colour can be allotted to respondent No.1 and this has been accepted by the court below.
17. The basic error in this approach is that, it is not clear whether 12 guntas of land which has been allotted to respondent No.1 falls within 1 acre 2 guntas which is the petition schedule property. This is because, the Commissioner has not at all demarcated and identified the petition schedule property of 1 Acre 2 Guntas.
18. Without appreciating this fact, the court below committed an error in simply accepting the Commissioner's Report and granting said 12 guntas of land to respondent No.1 without first ascertaining whether said 12 guntas of land is the part of 1 Acre 2 guntas of petition schedule property or not.
19. The court below has held that the petition schedule property measures 1 acre 2 guntas and 2/7th share therein comes to 12 guntas and on this premise allotted 12 guntas to respondent No.1. At this stage, it is relevant to refer to the findings of the court below in its order dated 20.12.2014
NC: 2024:KHC:37772 MSA No. 133 of 2017
while rejecting second Commissioner's Report wherein the court below has observed as follows:-
Para 17: Further, in this case, there is a subsequent event of acquisition of the suit property by the Mysuru Urban Development Authority for formation of Ring Road as well as service road. If the entire land is available for division by 07 equal shares, the plaintiff would be entitled for 12 guntas. When the entire land is not available for partition in view of the subsequent acquisition of land by Mysuru Urban Development Authority for formation of Ring Road as well as Service Road, the Report of the Commissioner by demarcating 12 guntas to the plaintiff alone is contrary to the law as well as the Preliminary Decree. As per the Preliminary Decree, not only the plaintiff, but also the other sharers are also entitled for an extent of 12 guntas if entire land is available for partition. When the CW1/Commissioner is one breath has deposed that the plaintiff is entitled for 12 guntas, in another beach he has deposed that she is entitled for 6 guntas only. His evidence is also full of confusions and he is not certain about the exact extent available for partition. His evidence is also contrary to his report marked as Ex.C2. If his Report is accepted, it is detrimental to the interests of other cosharers, more particularly for defendants 3 and 4, since they have also prayed for carving out of their shares by paying court fee. Hence, the report of the Commissioner cannot be accepted." (Emphasis supplied)
NC: 2024:KHC:37772 MSA No. 133 of 2017
The reason for extracting extensively the said observations of the lower court is that, afore stated orders has attained finality. The Court below n the said orders has correctly observed that, if the entire land is available for division, then respondent No.1 would be entitled to 12 guntas of land.
However, entire land is not available in view of some portions of the land having been acquired for Ring Road. Therefore, it was for the Court Commissioner to identify 1 Acre 2 Guntas of land which is the petition schedule property and then ascertain how much of that land has been acquired for formation of Ring Road and only then, the land which can be allotted to respondent No.1 can be determined. Without adverting to this aspect of the matter, the lower court committed an error in blindly accepting the Commissioner's Report and allotting 12 guntas to respondent No.1, by the impugned judgment.”
acquired by Mysuru Urban Development Authority. Therefore, the parties are entitled for compensation for the acquired portion and in the remaining portion the shares are to be carved out as per the Preliminary Decree.
such an order of the First Appellate Court calling any interference by acting under Order XLIII CPC vested in this Court.
Hence, the following :
ORDER
Appeal is dismissed.
NC: 2024:KHC:37772 MSA No. 133 of 2017
Parties shall appear before the Trial Court on 30.09.2024 and thereafter the Trial Court is directed to proceed with the matter in accordance with law as per the
directions of the First Appellate Court.
Sd/(V SRISHANANDA) JUDGE
MR List No.: 1 Sl No.: 57
1 issue framed by the court
Whether the First Appellate Court was justified in setting aside the final decree allotment and remitting the matter for fresh demarcation after appointing a new Court Commissioner.
2 provisions across 2 enactments
Smt. Siddammannamma
Sri Nanjundegowda (dead) rep. by T.N. Nagesh / Karnataka Police Employees House Building Co-operative Society
Smt Lakshmamma
Smt Siddamma
Smt Devamma
Sri Huchappa
V Srishananda
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
