Dismissed

S T Srinivasa v. Smt S R Seethamma

Karnataka HC13 Feb 2024RSA/955/2019

Case brief

AI extract

What is this about?

Second appeal by defendants against confirmation of a final decree allotting the plaintiff's enhanced 1/9th share in partition suit properties. Objections on non-joinder of purchasers and alleged payment were rejected; the Commissioner's unopposed report stood accepted. The High Court found no substantial question of law and dismissed the appeal.

What the court decided

AI extract

S T Srinivasa Vs Smt S R Seethamma — Partition | Karnataka HC (2024)

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NC: 2024:KHC:6036 RSA No. 955 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE M.G.S. KAMAL

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REGULAR SECOND APPEAL No. 955 OF 2019 (PAR)

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BETWEEN:

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S. T. SRINIVASA, S/O LATE S.R.THIMMAIAH, AGED ABOUT 51 YEARS, R/AT N.T. ROAD, (NEAR MANGALORE POVA MILL) SHIVAMOGGA-577202

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S.T. VASUDEVA S/O LATE S.R. THIMMAIAH, AGED ABOUT 53 YEARS, R/AT N.T. ROAD, SHIVAMOGGA-577202

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…APPELLANTS

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Digitally signed by SUMA B N Location: High Court of Karnataka

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(BY SRI RAMA MOORTHY B. V., ADVOCATE)

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AND:

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SMT. S. R. SEETHAMMA, W/O LATE S.R.RANGAIAH, AGED ABOUT 63 YEARS, R/AT SRI LAKSHMI RANGANATHA NILAYA, OPP:STATE BANK OF INDIA, N.T. ROAD, SHIVAMOGGA-577202.

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PRASANNA KUMAR T.S., S/O LATE T.L. SHIVANNA, AGED ABOUT 58 YEARS, R/AT 'SAI KRUPA', No.736, 7^TH CROSS,

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NC: 2024:KHC:6036 RSA No. 955 of 2019

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6^TH MAIN, 4^TH STAGE, PEML LAYOUT, RAJARAJESHWARI NAGAR, BANGALORE-560098.

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SURESH KUMAR T.S., S/O LATE T.L. SHIVANNA, AGED ABOUT 50 YEARS, R/AT 'BHAGYA NILAYAA, No.28, 1^ST CROSS, GANDINAGARA, SHIVAMOGGA-577202.

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SMT. BHAGYASHRI A.PARIL, W/O AMARASIMHA PATIL, AGED ABOUT 53 YEARS, R/AT BEHIND MAHALAKSHMI TEMPLE, SUBHASH MARKET, HINDWADI, BELAGAVI-590001.

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SMT. S.P.NAGAMMA, W/O LATE S.R.THIMMAIAH, AGED ABOUT 70 YEARS, R/AT NEAR MANGALORE POVA MILL, N.T. ROAD, SHIVAMOGGA-577202.

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SMT. NAGAMMA, W/O LATE SHIVASHANKARA, AGED ABOUT 65 YEARS, R/AT OPP. STATE BANK OF MYSORE, N.T. ROAD, SHIVAMOGGA-577202.

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SMT. S.T.HEMALATHA, D/O LATE S.R.THIMMAIAH, AGED ABOUT 49 YEARS, R/AT NEAR MANGALORE POVA MILL, N.T. ROAD, SHIVAMOGGA-577202.

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SMT. S.T. CHAYADEVI, D/O LATE S.R.THIMMAIAH, AGED ABOUT 47 YEARS, R/AT NEAR MANGALORE POVA MILL,

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3 - NC: 2024:KHC:6036 RSA No. 955 of 2019

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N.T. ROAD, SHIVAMOGGA-577202.

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SMT. S.T. KAVITHA, D/O LATE S.R.THIMMAIAH, AGED ABOUT 45 YEARS, R/AT NEAR MANGALORE POVA MILL, N.T. ROAD, SHIVAMOGGA-577202.

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SMT. SHIVAMMA, W/O LATE RAMANNA, AGED ABOUT 62 YEARS, R/AT OPP: STATE BANK OF MYSORE, N.T. ROAD, SHIVAMOGGA-577202.

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S.R. KUMAR, S/O LATE RAMANNA, AGED ABOUT 42 YEARS, R/AT OPP: STATE BANK OF MYSORE, N.T. ROAD, SHIVAMMOGA-577202.

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S.R.LINGARAJU, S/O LATE RAMANNA, AGED ABOUT 45 YEARS, R/AT.OPP: STATE BANK OF MYSORE, N.T. ROAD, SHIVAMOGGA-577202.

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SMT. S.R. ROHINI PRAKASH, D/O LATE RAMANNA, W/O PRAKASH PUTTAPPA, AGED ABOUT 35 YEARS, R/AT OPP: STATE BANK OF MYSORE, N.T.ROAD, SHIVAMOGGA-577202.

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SMT. SHASHIKALA RAMESH, D/O LATE RAMANNA, W/O RAMESH AGED ABOUT 35 YEARS, R/AT OPP: STATE BANK OF MYSORE, N.T. ROAD, SHIVAMOGGA-577202.

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AS PER FDP R/AT NANDA GOKULA,

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No.261/A, DABAS PALYA, RV COLLEGE POST, KENGERI, BANGALORE-560059.

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SMT. YASHASVINI RAVI KUMAR D/O LATE RAMANNA, W/O RAVIKUMAR, AGED ABOUT 35 YEARS, R/AT OPP: STATE BANK OF MYSORE, N.T. ROAD, SHIVAMOGGA-577202.

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AS PER FDP ADDRESS C/O LAKSHMI GOWDA, RETIRED COURT SHIRASTHEDAR, GAYATHRI EXTENSION, CHANNARAYAPATNA, HASSAN DISTRICT-573116.

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SMT. SHOBHA TRILOK, S/O TRILOK, AGED ABOUT 35 YEARS, R/AT OPP: STATE BANK OF MYSORE, N.T. ROAD, SHIVAMOGGA-577202.

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AS PER FDP ENGINEERS AND CONTRACTORS, NEXT TO BHEL, PANTHRA PALYA, MYSORE ROAD, BANGALORE-560039.

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SMT. S.R. SAHANA PATEL, D/O LATE RAMANNA, AGED ABOUT 40 YEARS, R/AT.OPP: STATE BANK OF MYSORE, N.T. ROAD, SHIVAMOGGA-577202.

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S.R. CHANDRAPPA, S/O LATE S.R.RANGAIAH, AGED ABOUT 68 YEARS, R/AT OPP: STATE BANK OF MYSORE, N.T. ROAD, SHIVAMOGGA-577202.

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SMT. K.R. USHA, W/O LATE GAVIYAPPA, AGED ABOUT 53 YEARS, R/AT OPP: STATE BANK OF MYSORE, N.T. ROAD, SHIVAMOGGA-577202.

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S.G. AKSHATH, S/O LATE.GAVIYAPPA AGED ABOUT 26 YEARS, R/AT OPP. STATE BANK OF MYSORE, N.T. ROAD, SHIVAMOGGA-577202.

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SMT. S.G. HARSHITHA, D/O LATE GAVIYAPPA, AGED ABOUT 28 YEARS, R/AT OPP. STATE BANK OF MYSORE, N.T. ROAD, SHIVAMOGGA-577202.

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SMT. S.G. ANUSHA, D/O LATE GAVIYAPPA, AGED ABOUT 54 YEARS, R/AT OPP. STATE BANK OF MYSORE, N.T. ROAD, SHIVAMOGGA-577202.

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H.P.BALAPPA, S/O PYATI SANNABHARMAPPA, AGED ABOUT 65 YEARS, R/AT "SRI.BHEEMAMBIKA NILAYA" 6^TH CROSS, RAVINDRANAGAR, SHIVAMOGGA-577202.

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S.B.SHASHIDHAR, S/O H.P.BALAPPA, AGED ABOUT 45 YEARS, R/AT "SRI BHEEMAMBIKA NILAYA" 6^TH CROSS, RAVINDRANAGAR, SHIVAMOGGA-577202.

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S.B. INDUDHAR, S/O H.P.BALAPPA, AGED ABOUT 36 YEARS, R/AT SRI BHEEMAMBIKA NILAYA,

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NC: 2024:KHC:6036 RSA No. 955 of 2019

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6^TH CROSS, RAVINDRANAGAR, SHIVAMOGGA-577202.

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SMT. S.P. SAVITHA, W/O SATYANARAYANA AGED ABOUT 45 YEARS, R/AT "SRI. BHEEMAMBIKA NILAYA" 6^TH CROSS, RAVINDRANAGAR, SHIVAMOGGA-577202.

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SMT. S.B. DHANALAKSHMI, W/O S.H.PRASANNA KUMAR AGED ABOUT 38 YEARS, R/AT "SRI. BHEEMAMBIKA NILAYA" 6^TH CROSS, RAVINDRANAGAR, SHIVAMOGGA-577202.

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R. MALLESHAPPA, S/O LATE S.R. RANGAIAH, AGED ABOUT 65 YEARS, R/AT RANGANATHA NILAYA, OPP: STATE BANK OF MYSORE, N.T. ROAD, SHIVAMOGGA - 577202.

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…RESPONDENTS

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(BY SRI CHANDAN M., ADVOCATE A/W SRI H.S. PRASHANTH, ADVOCATE FOR C/R1)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 19.03.2019 PASSED IN RA.NO.03/2016 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 16.11.2015 PASSED IN F.D.P. NO.1/2000 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND MACT -7 AND E.C.C, SHIVAMOGGA PARTLY ALLOWING THE PETITION FOR DRAWING UP OF FINAL DECREE.

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

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NC: 2024:KHC:6036 RSA No. 955 of 2019

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JUDGMENT

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This appeal is by defendant Nos.1(c) and 1(b) against the order dated 16.11.2015 passed in FDP No.1/2000 on the file of the I Additional Senior Civil Judge and CJM, Shivamogga, which is confirmed by order dated 19.03.2019 passed in R.A.No.3/2016 on the file of the II Additional District and Sessions Judge, Shivamogga.

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The aforesaid FDP No.1/2000 was initiated by the respondent, who was plaintiff in O.S.No.198/1988. The said suit in O.S.No.198/1988 had been filed by respondent No.1 herein seeking partition and separate possession of 1/11^th share in the suit schedule properties consisting of 27 items in Schedule-A and 12 items in Schedule-B. The said suit was decreed conferring 1/11^th share. Regular First Appeal in R.F.A. No.399/1995 was filed, which was also dismissed on 09.04.1999. Consequent thereupon, the aforesaid Final Decree Proceedings in FDP No.1/2000 was initiated. The Trial Court appointed a Commissioner, who filed his report. The Trial Court accepting the Commissioner's Report directed partition and allotment of separate share as sought for by order dated 16.11.2015. Being aggrieved by the same, appellants herein

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who are defendants, filed R.A.No.3/2016. On reconsideration of the matter, the First Appellate Court dismissed the appeal confirming the judgment and order passed by the Trial Court in FDP. Aggrieved by the same, present appeal is filed before this Court.

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Learned counsel for the appellants reiterating the grounds urged in the memorandum of appeal submitted that though statement of objections were filed by the appellants in FDP raising issues with regard to non-joinder of necessary parties, requirement of measurement of schedule properties in view of the death of defendant Nos.6 and 10 and the Commissioner not discharging his functions as required under law, the Trial Court and the First Appellate Court without adverting to such statement of objections have allowed the proceedings giving rise to substantial questions of law requiring consideration at the hands of this Court.

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He further submits that the Commissioner ought to have measured all the items of properties to re-adjust, reallocate shares from 1/11^th to 1/9^th in view of the death of defendant Nos.6 and 10. He submits, in view of alienations made by

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NC: 2024:KHC:6036 RSA No. 955 of 2019

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some of the defendants during the pendency of FDP, they ought to have been brought on record and they not having been brought on record, the Court could not have proceeded in their absence. On a query by this Court, learned counsel fairly submits that objections to Commissioner's Report were not filed. He also submits, the Commissioner was also not summoned for cross-examination. However, he submits that the Trial Court and the First Appellate Court ought to have adverted to the objections raised by the appellants in their statement of objections to the proceedings. Hence, seeks allowing of the appeal.

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In response, learned counsel for respondent No.1 submits that the Trial Court and the First Appellate Court have adverted to every issue raised in the statement of objections filed by the appellants. He submits, since the Commissioner's Report has been accepted without any objections and the proceedings having been completed, nothing survives for consideration in the matter. Hence, seeks for dismissal of the appeal.

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Heard. Perused the records.

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NC: 2024:KHC:6036 RSA No. 955 of 2019

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The Trial Court in the Final Decree Proceedings considering the objections raised by the appellants framed the following points for consideration;

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" Point No.1: Whether the petition is bad for non-joinder of necessary parties?

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Point No.2: Whether the respondents show that subsequent to the preliminary decree, the petitioner has received Rs.1,00,000/- and has ratified the partition deed and hence, the F.D.P., is not maintainable?

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Point No.3: Whether the respondents show that the deceased 6^th and 10^th defendants have sold out their share in the properties and hence, their death will not alter the shares of others now?

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Point No.4: Whether the partition proposed by the court commissioner is reasonable and acceptable?

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Point No.5: What order? "

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On appreciation of oral and documentary evidence made available on record, Trial Court answered Point Nos.1 to 3 in the negative and Point No.4 in the affirmative.

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NC: 2024:KHC:6036 RSA No. 955 of 2019

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One of the contentions raised by the appellants was non-joinder of necessary parties on the premise that some of the properties were sold during the pendency of proceedings and the purchaser of the said properties ought to have been made as party to the proceedings.

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The Trial Court taking note of the fact that even according to the appellants the alienation was made during the pendency of proceedings has come to the conclusion that such alienation would be subject to the result of the proceedings. The Court has also taken note of the fact that the persons who have alienated the properties will have to answer the questions to be raised by the alienee and the same would not affect the persons who have sold their properties.

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As regards the objection raised alleging the petitioner having received a sum of Rs.1,00,000/- and purportedly ratifying the partition, while answering Point No.2, the Trial Court has adverted to the evidence lead and found that the allegation of payment of Rs.1,00,000/- has not been proved by the respondents.

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NC: 2024:KHC:6036 RSA No. 955 of 2019

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As regards Point No.3 of deceased respondent Nos.6 and 10 having sold their shares of the properties, Trial Court has taken note of the fact that 1/11^th share which has been allotted in the Preliminary Decree has been enhanced to 1/9^th upon demise of defendant Nos.6 and 10. The Trial Court has also taken note of the fact that after alteration of the said shares, Commissioner had been appointed to re-measure the shares according to the altered share and accordingly measurement was conducted, report was submitted and that no objections were filed by any of the parties including the appellants herein either to the measurement made by the Commissioner or to the Report submitted by the Commissioner. At paragraph 21 of the order, Trial Court has taken note of the fact that none of the parties had called the Commissioner for examination even the respondents have not called the Commissioner for crossexamination to point out the errors, if any, committed by the Commissioner. Taking note of these aspects of the matter, Trial Court has come to the conclusion accepting the Report submitted by the Commissioner.

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The First Appellate Court on re-appreciating the matter has confirmed the reasoning and findings arrived at by the Trial

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NC: 2024:KHC:6036 RSA No. 955 of 2019

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Court. On a query by this Court regarding objections, if any, filed to the Commissioner's Report, learned counsel for the appellants fairly submitted that no objections have been filed to the Commissioner's Report.

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In view of the fact that all contentions raised by the appellants/defendants with regard to non-joinder of parties, payment of alleged Rs.1,00,000/- to the petitioner not having been included and also in view of the fact that Commissioner's Report having been accepted un-opposed, no fault or irregularity can be found to the reasoning and conclusion arrived at by the trial Court confirmed by the First Appellate Court warranting interference. No substantial question of law would arise in the matter. Accordingly, the appeal is dismissed .

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Sd/JUDGE

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List No.: 2 Sl No.: 23

S T Srinivasa v. Smt S R Seethamma

Case brief

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S T Srinivasa v. Smt S R Seethamma

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