Allowed

Shantaraj Shivayya Nayak v. Janardhan Shivayya Nayak

Karnataka HC5 Jul 2024WP/101103/2024

Case brief

AI extract

What is this about?

The High Court allowed a writ petition questioning orders in final decree proceedings regarding a property partition scheme. The Court quashed the orders for procedural flaws and lack of jurisdiction, permitting cross-examination of the Court Commissioner.

What did the court decide?

The impugned orders dated 05.02.2024 and 08.02.2024 quashed; petitioners permitted to apply for leave to cross-examine the Court Commissioner.

Shantaraj Shivayya Nayak Vs Janardhan Shivayya Nayak — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:9237 WP No. 101103 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 5^TH DAY OF JULY, 2024 BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 101103 OF 2024 (GM-CPC)

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BETWEEN:

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SHANTARAJ SHIVAYYA NAYAK, A/A 69 YEARS, AGRICULTURIST, R/O KAGAL, TAL: KUMTA, UTTARA KANNADA DISTRICT.

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SHRIKANT SHIVAYYA NAYAK, A/A 55 YEARS, AGRICULTURIST, R/O SANDOLLI, KODAMBALE,

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TAL: KUMTA, UTTARA KANNADA DISTRICT.

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…PETITIONER

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(BY SRI. A.P. HEGDE, ADVOCATE)

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AND:

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JINACHANDRA SHIVAYYA NAYAK, A/A 56 YEARS, AGRICULTURIST, R/O SANDALLI, PO: KODAMBALE,

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TAL: KUMTA, UTTARA KANNADA DISTRICT-581343.

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YASHAVANT NARAYANKAR

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Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DEVARAJ SHIVAYYA NAYAK, A/A 67 YEARS, AGRICULTURIST, R/O KAGAL, TAL: KUMTA,

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UTTARA KANNADA DISTRICT-581343.

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DHANAPAL SHIVAYYA NAYAK, A/A 62 YEARS, AGRICULTURIST, R/O KAGAL, TAL: KUMTA,

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UTTARA KANNADA DISTRICT-581343.

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U.F.M. SMT. JAYAVATI W/O. PADMARAJ NAYAK, A/A 60 YEARS, AGRICULTURIST, R/O KAGAL, TAL: KUMTA, UTTARA KANNADA DISTRICT-581343.

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ADAMMA D/O. SHIVAYYA NAYAK DECEASED BY LR’S.

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2 - NC: 2024:KHC-D:9237 WP No. 101103 of 2024

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DEKAPPA M.J. S/O. JATTAYYA, A/A 66 YEARS, RETIRED, R/O FLAT NO.D-304, FRIENDS PARADISE, # 2550, 2551/1, 9^TH CROSS ROAD, 30^TH MAIN ROAD, SAHAKARA NAGAR, “E” BLOCK, BBMP, BANGALORE NORTH-560092.

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KIRANKUMAR D. S/O. DAKAPPA, A/A 46 YEARS, BUSINESS, R/O FLAT NO.D-304, FRIENDS PARADISE, # 2550, 2551/1, 9^TH CROSS ROAD, 30^TH MAIN ROAD, SAHAKARA NAGAR, “E” BLOCK, BBMP, BANGALORE NORTH-560092.

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PRAVINKUMAR. D. S/O. DAKAPPA, A/A 39 YEARS, PRIVATE JOB, R/O FLAT NO.D-304, FRIENDS PARADISE, # 2550, 2551/1, 9^TH CROSS ROAD, 30^TH MAIN ROAD, SAHAKARA NAGAR, “E” BLOCK, BBMP, BANGALORE NORTH-560092.

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SMT. GOURAMMA D/O. SHIVAYYA NAYAK, @ SHASHIKALA W/O. ANANTRAJ GAONKAR, A/A 53 YEARS, HOUSEHOLD, R/O KAGAL, TAL: KUMTA, UTTARA KANNADA DISTRICT-581343.

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…RESPONDENTS

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(BY SRI. CHETAN MUNNOLLI, ADV. FOR R1; R2-R8 ARE SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE APPROPRIATE WRIT, ORDER OR DIRECTION IN THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER PASSED BY HON’BLE SENIOR CIVIL JUDGE KUMTA DATED 5-2-2024 PASSED IN F.D.P.NO.2/2020 ACCEPTING THE SCHEME OF PARTITION SUGGESTED BY A.D.L.R. KUMTA WITH RESPECT TO A SCHEDULE PROPERTIES AND ITEM NO.1 TO 3 OF C SCHEDULE PROPERTIES (ANNEXURE-L) AND FURTHER ORDER DATED 8-2-2024 ISSUING POSSESSION WARRANT TO THE BAILIFF TO HAND OVER THE POSSESSION OF A SCHEDULE PROPERTIES AND ITEM NO.1 TO OF C SCHEDULE PROPERTIES WITH

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3 - NC: 2024:KHC-D:9237 WP No. 101103 of 2024

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THE ASSISTANCE OF TALUKA SURVEY OR KUMTA AS PER SCHEME OF PARTITION (ANNEXURE-M.

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THIS PETITION IS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners/respondents in Final Decree Proceedings are assailing the order of the FDP Court accepting the scheme of partition and consequent order in issuing the delivery warrant. The respondents based on preliminary decree, have initiated final decree proceedings in FDP No.2/2020. The Court proceeded to appoint the Court Commissioner. The Court Commissioner has submitted feasibility report.

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The present petitioners contend that they have tendered their objections to the Commissioner report and having questioned the feasibility report, have also tendered an alternate partition scheme, which is documented at Annexure-K to the writ petition. These two orders are liable to be quashed on two counts.

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Firstly, the petitioners have tendered detailed objection objecting the Commissioner's report. Therefore, this Court is of the view that petitioners are entitled to crossexamine the Commissioner and substantiate that how the

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4 - NC: 2024:KHC-D:9237 WP No. 101103 of 2024

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feasibility report is not workable and is detrimental to the interest of petitioners. The FDP Court, without adverting to the objections tendered by the petitioners and affording opportunity to petitioners to cross- examine the Commissioner on feasibility report, has accepted the scheme of partition submitted by the Commissioner. There is a procedural flaw and therefore, the order is not sustainable. If petitioners have tendered their objections, they are entitled to cross-examine the Commissioner.

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Secondly, the consequent order dated 08.02.2024 is also one without jurisdiction. Before drawing final decree, the Court had no jurisdiction to issue possession warrant. The said order is also not sustainable. For the foregoing reasons, this Court passes the following:

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ORDER

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i) Writ petition is allowed.

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ii) The impugned orders 05.02.2024 and 08.02.2024 vide Annexures-L and M, are hereby quashed.

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5 - NC: 2024:KHC-D:9237 WP No. 101103 of 2024

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iii) The petitioners are permitted to file appropriate application and seek leave of the Court to cross-examine the Court commissioner subject to payment of Rs.5,000/- payable to respondents on the next date of hearing. If such an application is filed, learned Judge shall permit the petitioners to cross-examine the Commissioner.

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Sd/JUDGE

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List No.: 1 Sl No.: 16

Shantaraj Shivayya Nayak v. Janardhan Shivayya Nayak

Case brief

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Shantaraj Shivayya Nayak v. Janardhan Shivayya Nayak

Case brief

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