A regular second appeal challenging a final decree in a partition suit allotting the plaintiff a 1/5th share was dismissed at admission stage, no substantial question of law arising; the courts below had accepted an unopposed Court Commissioner's report dividing the property.
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NC: 2024:KHC:31824 RSA No. 502 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.502 OF 2024 (PAR)
BETWEEN:
BOTH ARE RESIDING AT RAILWAY STATION ROAD, 2ND CROSS, GANDHI NAGAR, TUMAKURU, .NOW RESIDING AT NO.1131, TUDA LAYOUT, MELEKOTE, TUMAKURU - 572105.
Digitally signed by ARUNKUMAR M S Location: High Court of Karnataka
(BY SRI. BALAKRISHNA K., ADVOCATE)
…APPELLANTS
AND:
…RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 15.12.2023 PASSED IN R.A. NO.36 OF 2023 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 03.01.2023 PASSED IN FDP NO.25 OF 2017 (OS.NO.335 OF 2010) ON THE FILE OF THE IV ADDITIONAL CIVIL JUDGE AND JMFC, TUMAKURU. ALLOWING THE PETITION FILED UNDER SECTION 54 OF CPC.
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 filed by the respondent No.1 in FDP No.25 of 2017, challenging the judgment and decree dated 15.12.2023 passed in RA.No.36 of 2023 on the file of the III Additional Senior Civil Judge and JMFC, Tumakuru, dismissing the appeal and confirming the order 03.01.2023 passed in FDP No.25 of 2017 (OS No.335 of 2010) on the file of the IV Additional Civil Judge and JMFC, Tumakuru, for drawing up the final decree.
schedule property and the said suit came to be decreed on 09.08.2017, whereby, it is held that, the plaintiff/petitioner is entitled for 1/5th share in the suit schedule property. Thereafter, the plaintiff/petitioner filed FDP No.25 of 2017 seeking passing of final decree in terms of the preliminary decree passed in OS No.335 of 2010. The Trial Court, after the considering the report of the Court Commissioner, accepted the same, and thereby, allowed the petition as per order dated 03.01.2023. Being aggrieved by the same, the respondent Nos. and 2 have filed RA No.36 of 2023 before the First Appellate Court. The said appeal was resisted by the respondents therein. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 15.12.2023 dismissed the appeal and confirmed order passed by the trial Court in FDP No.25 of 2023. Being aggrieved by the judgment and decree passed by the
Courts below, the respondent/appellants have
preferred this Regular Second Appeal under Section 100 of CPC.
for the appellants, I have carefully examined the finding recorded by the both the courts below. It is not
in dispute that the plaintiff/petitioner has filed OS No.335 of 2010, which came to be decreed on 09.08.2017 and it was held that the petitioner/plaintiff is entitled for 1/5th share in the suit schedule property.
It is also argued by the learned counsel for the appellants that, the judgment and decree in OS No.335 of 2010 came to be confirmed in RA No.54 of 2022 on the file of II Additional Senior Civil Judge,
Tumakuru dated 09.03.2022. The said judgment has reached finality. In that view of the matter, the appellants cannot challenge the share made in favour of the petitioner/plaintiff. Insofar as the impugned
judgment and decree of the Trial Court is concerned, the Trial Court in Final Decree proceedings appointed the Thasildar, Tumakuru as Court Commissioner to measure and bifurcate the suit property and as there was no objection filed by the petitioner or the respondents therein, to the report submitted by the
Court Commissioner and accordingly, same was accepted and therefore, the finding recorded by the Trial Court by judgment and decree dated 03.01.2023 in FDP No. 25 of 2017 is just and proper. The First
Appellate Court, after re-appreciating the material on record, rightly confirmed the same and therefore, I do
not find material illegality or perversity in the judgment and decree passed by the Courts below and accordingly, the Regular Second Appeal is liable to be dismissed . Since, the respondents/appellants have not made out grounds for formulation of substantial question of law as required under Section 100 of Code
of Civil Procedure, appeal is liable to be dismissed at
the Admission stage itself, accordingly, appeal is
dismissed .
SD/(E.S.INDIRESH) JUDGE
SB
List No.: 1 Sl No.: 46
1 issue framed by the court
Whether the final decree order in FDP No.25 of 2017, confirming the petitioner's 1/5th share based on the Commissioner's report, warranted interference under Section 100 CPC?
2 provisions across 1 enactments
Smt. Sanjeevamma
Sri. Narasimhamurthy K.
Smt. Siddamma
Smt. Lakshminarasamma
Smt. G. Manjula
E.S.Indiresh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
