Prithvisingh Narayansingh Raput Vs Sunita D/O Tesingh Raput

SUCHITA D/O TEJSINGH RAJPUT AFTER MARRIAGE SUCHITA W/O AMIT BHINGURDE, AGE: 48 YEARS, OCC: HOUSE HOLD, R/O: 201, SHIVALAYA, 4 GREEN PARK, HOUSING SOCIETY, BANER, PUNE-411007, MAHARASTRA STATE.

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MRS. SHAKUNTALA W/O DR. JAIKUMARSINGH RAJPUT, AGE: 75 YEARS, OCC: HOUSE HOLD R/O: 360, CHALUWAMBA AGRAHAR MYSYRU-571511.

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STAR COMPANY A BUSINESS CONCERN AT GANAPAT GALLI, BELAGAVI-590001.

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…RESPONDENTS

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(BY SRI. G.B.NAIK & SMT. P.G.NAIK, ADVS FOR R1 & R2, NOTICE TO R3 IS SERVED & R4 IS HELD SUFFICIENT)

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HC-KAR

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THIS MSA IS FILED U/SEC.43 RULE 1(u) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 08.03.2017 PASSED IN R.A. NO.175/2015 ON THE FILE OF THE IX ADDL. DISTRICT & SESSIONS JUDGE, BELAGAVI, ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 04.07.2015 PASSED IN FDP NO.1/1994, ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, BELAGAVI, ALLOWING THE PETITION FILED UNDER ORDER 20 RULE 16 AND RULE 18 OF CPC..

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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This Miscellaneous Second Appeal is filed by the

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appellant challenging the judgment and decree in R.A. No.175/2015 dated 08.03.2017, by the learned IX Additional District and Sessions Judge, Belagavi.

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For convenience, the parties are referred to

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based on their rankings before the FDP Court. The appellant was the petitioner, and the respondents herein were the respondents before the FDP court.

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3 -

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HC-KAR

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Brief facts, leading rise to the filing of this appeal

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are as follows:

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3.1 The petitioner filed a suit against the respondents in O.S. No.46/1984 for a partition and separate possession and for taking accounts. After a fullfledged trial, the suit was decreed vide Judgment dated 20.07.1993, holding that the petitioner is entitled to a 1/3^rd share in item No.1 of the ‘B’ and ‘D’ schedule properties, and also a 1/4^th share in item Nos.2 to 4 of the ‘B’ schedule properties. The Respondents, aggrieved by the Judgment and preliminary decree passed in O.S.No.46/1984, preferred an appeal in RFA No.282/1993 before this Court. The said appeal was partly allowed, and the Judgment and preliminary decree passed in the aforesaid suit was modified. The Respondents ,aggrieved by the Judgment and decree passed by this Court in RFA No.282/1993, preferred a Special Leave Petition before Hon’ble

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Apex Court in SLP No.5011/1997, which came to be dismissed. The petitioner is not entitled to any share in item Nos.2 to 4 of the ‘B’ schedule properties. The petitioner filed a Final Decree Proceedings in FDP No.1/1994 on the file of the

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learned I Addl. Senior Civil Judge, Belagavi. The respondents appeared through their counsel, and filed their common objections, and accordingly, prays to dismiss the petition.

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3.2 The FDP Court appointed two Court

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Commissioners to ascertain the share in the commercial establishment, i.e., respondent No.6Company, including profit, etc., and directed to take the assistance of an expert Engineer and the

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chartered accountants. The two Commissioners submitted a report, which was opposed by Respondents Nos. 1 and 4. The Court Commissioners were examined as CW-1 and CW2, and no documents were marked.

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HC-KAR

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3.3 The FDP Court allowed the petition with costs vide order dated 04.07.2015, and the Commissioners’ report was fully accepted regarding all suit schedule properties. It was ordered that the plaintiffs and defendant No.2 shall put in possession of their respective portions shown by the Court Commissioners, subject to the provisions of the Cantonment Act. It is also held that the petitioner is entitled to recover a sum of Rs.35,20,498/- along with interest at the rate of 12% per annum from 04.05.2011 till realization against the respondent No.1, and also held that defendant No.2 is entitled to recover a sum of Rs.9,18,717/- from defendant No.1. The plaintiff is also entitled to receive Rs.14,916/- along with interest at the rate of 12% per annum from 29.08.2011 till realization against respondent No.1, as per the clause 7 of the decree passed by this Court in RFA No.282/1993. Respondent Nos

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HC-KAR

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1,4, and 5, aggrieved by the final decree passed

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in FDP No.1/1994 preferred an appeal in R.A.No.175/2015 on the file of the learned IX Additional District and Sessions Judge, Belagavi.

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The First Appellate Court, after hearing the learned counsel for the parties, and reappreciating the entire evidence on record, allowed the appeal vide judgement dated 08.03.2017, and set aside the final decree dated 04.07.2015, and remitted the matter to the trial Court with a direction to appoint the Tahasildar, Belagavi, as Court Commissioner to submit the partition proposal of the plaintiff’s share in the ‘D’ schedule property, and to appoint the very same Court Commissioner, Sri A.G. Kankanwadi, Advocate, or any other Advocate, to submit the partition proposal regarding house properties, and the commercial establishment as per the preliminary decree passed in RFA No.282/1993, and disposed of the matter afresh in accordance with law. The petitioner, aggrieved by

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the judgment passed in R.A. No.175/2015, filed this Miscellaneous Second Appeal.

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Heard the arguments of the learned counsel for the petitioner and the respondents.

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Learned counsel for the petitioner submits that the First Appellate Court committed an error in remanding the matter to the trial Court. He submits that the Court can act based on the report submitted by the Revenue Officers as per Section 54 of the Code of Civil Procedure (CPC). He also submits that the petitioner is entitled to a 1/3^rd share. The respondents can allot any portion of a 1/3^rd share to the petitioner. The First Appellate Court committed an error in remitting the matter without properly considering the reports submitted by both the Court Commissioners. He further, submits that the Court Commissioner was appointed in the presence of the respondents, and the books of accounts were in the custody of the trial Court, and the chartered accountant, on verification of the

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HC-KAR

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accounts, has submitted a report. Hence, the question of issuing a notice by the Court Commissioner would not arise. Therefore, on these grounds, he prays to allow the appeal.

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Per contra, the learned counsel for the respondents submits that the Court directed the Tahsildar to submit the proposal for a partition, but he delegated his power to the Taluka Surveyor. She submits that the report submitted by the Taluka Surveyor is not in compliance with Section 54 of the CPC. She also submits that the learned Advocate who was appointed as the Court Commissioner did not issue a notice before verifying the accounts. Though, the Commissioners were examined as CW-1 and CW-2, no reports were marked. The trial Court committed an error in placing reliance on the unexhibited reports and thereby passing the final decree. Furthermore, she submits that the Advocate Court Commissioner and the Taluka Surveyor did not visit the site for preparing the report and they prepared the report while sitting in the office. Hence, she submits that the First Appellate Court was justified in remanding the

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matter to the trial Court. Therefore, on these grounds, she

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prays to dismiss the appeal.

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This Court admitted the appeal on 25.07.2017 to consider the following substantial question of law:

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(i) Whether the First Appellate Court was justified in overlooking the reasoned findings of the trial Court in accepting the Commissioner’s report and Auditor's report ?

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(ii) What order or decree ?

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Regarding substantial question of law No.(i)

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There is no dispute that the petitioner filed a suit for a partition and separate possession against the respondents in O.S.No.46/1984. The said suit was decreed vide Judgment dated 20.07.1993. The respondents, aggrieved by the Judgment and preliminary decree, preferred an appeal before this Court in RFA No.282/1993. This Court allowed the appeal in part and modified the Judgment and preliminary decree passed in O.S.No.46/1984. The respondents, aggrieved by the

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HC-KAR

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Judgment passedby this Court, preferred a Special Leave Petition before the Hon’ble Apex Court in SLP

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No.5011/1997, which came to be dismissed.

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After the dismissal of the Special Leave Petition, the petitioner filed a petition under Order XX Rule 18 of the CPC for drawing up of the Final Decree. The respondents filed their objections to the main petition. The FDP Court appointed the Tahsildar and an Advocate as the Court Commissioners to ascertain the proposed partition, demarcate the properties, and submit a report. Although, the FDP Court issued directions to the Tahsildar to carry out the necessary instructions, the Tahsildar delegated his powers to the Taluka Surveyor. The Taluka Surveyor issued a notice to the parties to be present on 10.10.2012; However, he did not come. Neither the Tahasildar nor the Taluka Surveyor visited the spot, and the Surveyor did not ascertain the market value of the properties.

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The Advocate Commissioner was examined as CW-1. He deposed that, as per the directions issued by the FDP Court, he submitted a report regarding the partition proposal regarding the house property and a commercial establishment. However, in the course of crossexamination, he admitted that he had not visited the property bearing CTS No.19 situated at Kapileshwar Road, Belagavi, and CTS No.4915/6. Although, the trial Court had directed the Court Commissioner to submit a report regarding the house properties and a commercial establishment, the Advocate Court Commissioner submitted the report without visiting the spot.

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The FDP Court had directed the Advocate Court Commissioner to inspect the spot and submit a report, and no direction was issued by the FDP Court to completely redelegate his powers to an expert Engineer. The Advocate Court Commissioner has taken the assistance of an expert Engineer, and submitted the report. Furthermore, it is also observed in the impugned judgment of the First Appellate

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Court that the Court Commissioner did not serve notice to appellant No.3 therein, before inspecting the suit properties. At the time of inspection, she was residing in Pune.

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Insofar as the Taluka Surveyor is concerned, he was examined as CW-2. In cross-examination, he admitted that he had not ascertained the actual market value of the property by obtaining the necessary details from the Office of the Sub-Registrar, Belagavi, and also admitted that the commission work had not been carried out as per the provisions of the Revenue Survey Manual. He also admitted that the Tahsildar was appointed as the court commissioner; However, the commission work was carried out by him.

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The First Appellate Court, considering the entire material placed on record, held that the Tahsildar as well as the Advocate Court Commissioner had not carried out the commission work as per the directions issued by the FDP Court. The First Appellate Court also placed reliance on the

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HC-KAR

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Judgment of this Court in the case of Shamanna Shetty Vs.

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B.L. Channegowda reported in ILR 2016 KAR 3588 .

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The reports submitted by the Court

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Commissioners were incomplete. The First Appellate Court was justified in remanding the matter to the FDP Court. Hence, I do not find any error in remitting the matter to the trial Court, appointing the Court Commissioner to submit the partition proposal regarding the house property and a commercial establishment, as per the preliminary decree passed in RFA No.282/1993. Therefore, I answer the substantial question of law No.(i) in the affirmative

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Regarding substantial question of law No.(ii)

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