Regular second appeal against confirmation of final decree proceedings in a partition suit. The High Court found both courts below had rightly accepted the Court Commissioner's survey report dividing the suit property per the preliminary decree and dismissed the appeal at admission for want of a substantial question of law.
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NC: 2024:KHC:30884 RSA NO.1060 OF 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH REGULAR SECOND APPEAL NO.1060 OF 2019 (PAR)
BETWEEN:
BOTH ARE RESIDENTS OF BALENAHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT - 583 131.
…APPELLANTS
(BY SRI. PRAVEENA H., ADVOCATE SRI. M.R. HIREMATHAD, ADVOCATE)
Digitally signed by ARUNKUMAR M S Location: High Court of Karnataka
AND:
SRI. D. JAYAPPA S/O HANUMANTHAPPA AGED ABOUT 64 YEARS, EMPLOYEE OF BIRLA FACTORY, HARIHARA, R/O 1ST MAIN, 3RD CROSS, 'B' BLOCK, VIDYANAGARA, HARIHARA TOWN, DAVANGERE DISTRICT - 577 601.
…RESPONDENT
(BY SRI. S.V. BHOJARAJA, ADVOCATE)
NC: 2024:KHC:30884 RSA NO.1060 OF 2019
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND DECREE DATED 14TH MARCH, 2019 PASSED IN REGULAR APPEAL NO.9 OF 2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., HARAPANAHALLI DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 04TH JULY, 2018 PASSED IN F.D.P. NO.1 OF 2007 ON THE FILE OF THE CIVIL JUDGE AND JMFC., HARAPANAHALLI, PARTLY ALLOWING THE PETITION FILED UNDER SECTION 34 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE FOR PARTITION AND SEPARATE POSSESSION IN THE SUIT SCHEDULE PROPETY AS PER THE PRELIMINARY DECREE PASSED IN ORIGINAL SUIT NO.246 OF 1992 DATED 08TH JANUARY, 1998.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH
ORAL JUDGMENT
This appeal is preferred by the respondents in F.D.P. No.1
of 2007 on the file of the Civil Judge and JMFC., Harapanahalli challenging the judgment and decree dated 14th March, 2019 passed in Regular Appeal No.9 of 2018 on the file of the Senior Civil Judge and JMFC., Harapanahalli (for short, hereinafter referred to as 'First Appellate Court'), dismissing the appeal and confirming the order dated 04th July, 2018 passed in F.D.P.
NC: 2024:KHC:30884 RSA NO.1060 OF 2019
No.1 of 2007 on the file of the Civil Judge and JMFC., Harapanahalli (for short, hereinafter referred to as 'Trial Court), wherein the petition filed by the respondent herein came to be allowed in-part.
possession of the suit schedule property as per preliminary decree passed in Original Suit No.246 of 1992. It is the case of the petitioner (son of the plaintiff) in F.D.P. No.1 of 2007 that, as plaintiff is old aged lady, she has been represented by him before the Trial Court. After service of notice, the respondent/appellants herein have entered appearance in Final Decree Proceedings and filed their objections. The Trial Court, based on the pleadings on record, formulated the points for consideration.
NC: 2024:KHC:30884 RSA NO.1060 OF 2019
accepting the report made by the Commissioner. Thereafter, the respondents have preferred appeal in Regular Appeal No.15 of 2017 against the order dated 17th March, 2017 and the said appeal was allowed in-part. The finding recorded by the Trial Court, particularly, in paragraph 9 of the order dated 04th July, 2018 passed in F.D.P. No.1 of 2007, the Taluk Surveyor had visited the suit schedule properties, after giving notice to the parties and divided the properties. Based on the report made by the Commissioner, the Final Decree Proceedings came to be concluded on 04th July, 2018. Being aggrieved by the same, the respondents in F.D.P. No.1 of 2007 have preferred Regular Appeal No.9 of 2018 before the First Appellate Court. The appeal was resisted by the petitioner and the First Appellate Court, after considering the material on record, dismissed the appeal and consequently, confirmed the order dated 04th July, 2018 passed in F.D.P. No.1 of 2007. Being aggrieved by the same, the appellants herein have preferred this Regular Second Appeal.
NC: 2024:KHC:30884 RSA NO.1060 OF 2019
NC: 2024:KHC:30884 RSA NO.1060 OF 2019
Survey the suit schedule property, after issuing notice to the parties. The Court Commissioner has measured the suit schedule property in presence of the parties and report was filed before the Trial Court. The Trial Court, accepting the report made by the Commissioner, had concluded the final decree proceedings on 04th July, 2018. In that view of the matter, as the suit is one for partition and separate possession in respect of the suit schedule property and same is filed in the year 1992, I am of the view that, both the Courts below have accepted the report of the Commissioner in respect of the division of the properties. Therefore, I do not find any merit in the appeal and as the appellants were failed to make out a case for framing of substantial question of law as required under Section 100 of the Code of Civil Procedure, this appeal deserves to be dismissed at the stage of admission itself. Accordingly, Regular Second Appeal is dismissed.
SD/(E.S. INDIRESH) JUDGE
ARK
2 issues framed by the court
Whether the F.D.P. Court erred in accepting the Commissioner's report without verifying compliance with the final decree under Section 54 CPC.
Whether a substantial question of law arose for interference under Section 100 CPC.
3 provisions across 2 enactments
Sri. Talavar Duragappa S/o Kenchappa
Sri. Talavar Thammappa S/o Kenchappa
Sri. D. Jayappa S/o Hanumanthappa
E.S. INDIRESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
