Dismissed¶55

Mahadevppa v. Smt. Yallavva

Partition – Final decree proceedings

Karnataka HC27 Jan 2025RFA/100076/2020

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What is this about?

Karnataka High Court, Dharwad Bench; RFA No. 100076 of 2020; decided 27.01.2025; Coram: Justices Ashok S. Kinagi and Umesh M Adiga. Partition and separate possession; final decree proceedings FDP No.32/2016 arising from O.S.No.76/2014 (preliminary decree dated 10.06.2016 granting 1/5th share); Court Commissioner's report demarcating shares; appellant failed to file objections to Commissioner's report and led no evidence in the suit; appeal under S.96 CPC against final decree dated 26.03.2019 dismissed; final decree confirmed; no costs. Notice to respondent No.2 abated vide order dated 26.11.2024.

What did the court decide?

None to the appellant; the impugned final decree dated 26.03.2019 in FDP.No.32/2016 was confirmed and no order as to costs was made. ¶55

Mahadevppa Vs Smt. Yallavva — Karnataka HC (2025) — LawSathi Research

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NC: 2025:KHC-D:1587-DB RFA No. 100076 of 2020

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 27^TH DAY OF JANUARY, 2025

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PRESENT

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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AND

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THE HON'BLE MR. JUSTICE UMESH M ADIGA

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REGULAR FIRST APPEAL NO. 100076 OF 2020

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BETWEEN:

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MAHADEVPPA S/O. BEERAPPA YALLEMMI @ DHARMASHALI, AGE: 44 YEARS, OCC: AGRICULTURE, R/O. YARAGATTI, TAL: SAUNDATTI, DIST: BELAGAVI.

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…APPELLANT

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(BY SRI. VITTHAL S. TELI, ADVOCATE)

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AND:

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SMT. YALLAVVA W/O. HANUMANT HUKKERI AGE: 49 YEARS, OCC: HOUSEHOLD WORKS, R/O. YARAGATTI, TAL: SAUNDATTI, DIST: BELAGAVI.

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Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench

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SMT. SIDDAWWA W/O. BEERAPPA YALLEMMI @ DHARMASHALI, AGE: 72 YEARS, OCC: HOUSEHOLD WORKS, R/O. YARAGATTI,

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TAL: SAUNDATTI, DIST: BELAGAVI.

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NAGAPPA S/O. BEERAPPA YALLEMMI @ DHARMASHALI AGE: 43 YEARS, OCC: HOUSEHOLD WORK, R/O. HARALAKATTI, TAL: SAUNDATTI, DIST: BELAGAVI.

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DUNDAPPA S/O. BEERAPPA YALLEMMI @ DHARMASHALI AGE: 37 YEARS, OCC: AGRICULTURE, R/O. YARAGATTI, TAL: SAUNDATTI, DIST: BELAGAVI.

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…RESPONDENTS

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(BY SRI. RAJASHEKAR R. GUNJALLI, ADVOCATE FOR R1; NOTICE TO R3 AND R4 SERVED; NOTICE TO R2 ABATED V/O. DATED 26.11.2024)

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THIS RFA FILED UNDER SEC. 96 OF CPC., 1908, PRAYING TO, SET ASIDE THE JUDGMENT AND DECREE DATED 26.03.2019 PASSED

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2 - NC: 2025:KHC-D:1587-DB RFA No. 100076 of 2020

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IN FDP NO.32/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, SAUNDATTI BY ALLOWING THE APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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

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This regular first appeal is filed by the appellant challenging the final decree dated 26.03.2019 passed in FDP.No.32/2016 by the learned Senior Civil Judge, Saundatti.

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Brief facts leading rise to the filing of this regular first appeal are as follows:

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Respondent No.1 filed a suit in O.S.No.76/2014 for the relief of partition and separate possession. The said suit came to be decreed vide judgment dated 10.06.2016 by granting 1/5^th share. The appellant, preferred an appeal in RFA No.100092/2017 before this court. Meanwhile, respondent No.1 filed FDP No.32/2016. The appellant and

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3 - NC: 2025:KHC-D:1587-DB RFA No. 100076 of 2020

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other respondents appeared through their counsel. They did not file objections to the main petition. The trial court appointed a Court Commissioner, and the Court Commissioner submitted a report demarcating the shares of the appellant as well as the respondents. The appellant herein, had not filed his objections to the report of the Court Commissioner. The trial court accepted the report of the Court Commissioner and, passed the final decree on 26.03.2019. The appellant, aggrieved by the same, filed this regular first appeal.

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Heard the learned counsel for the appellant,

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and the learned counsel for the respondents.

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Learned counsel for the appellant submits that the trial court committed an error in accepting the report of the Court Commissioner, when the Court Commissioner failed to carve out, allot, or demarcate the share to all the parties to the proceedings, as per the preliminary decree.

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Hence, on these grounds, he prays to allow the appeal.

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4 - NC: 2025:KHC-D:1587-DB RFA No. 100076 of 2020

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Per contra, learned counsel for respondent No.1

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supports the impugned final decree passed by the trial court submitting that, the trial court was justified in drawing the final decree dated 26.03.2019. He submits that, the Court Commissioner has strictly followed the preliminary decree and demarcated the shares. Hence, prays to dismiss the appeal.

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Heard, perused the records, and considered the submissions of the learned counsel for the parties. The points that would arise for our consideration are;

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1. Whether the appellant made out a ground to interfere with the impugned final decree?

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1. What order?

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Point No.1.

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It is not in dispute that, respondent No.1/plaintiff filed a suit in O.S.No.76/2014 for the relief of partition and separate possession. The said suit was decreed vide judgment dated 10.06.2016 granting 1/5^th share to respondent No.1 in the suit schedule properties.

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In the said suit, the appellant herein appeared through his counsel and filed written statement, but did not crossexamine P.W.1, and has not lead any evidence. The trial court based on the evidence of P.W.1, and the documents produced by respondent No.1, has decreed the suit and granted 1/5^th share to respondent No.1 in the suit schedule properties. The appellant, aggrieved by the judgment and the preliminary decree passed in O.S.No.76/2014 filed an appeal before this court in RFA No.100092/2017. Respondent No.1 initiated the final decree proceedings. In the said final decree proceedings, a

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Court Commissioner was appointed to demarcate the shares, through sketch, and also to demarcate the properties allotted to the respective parties. The trial court extracted the report of the Court Commissioner in para 8 of the impugned judgment. The appellant did not file his objections to the Court Commissioner’s report. The trial court examining the Court Commissioner’s report, and the findings given in the judgment and the preliminary decree dated 10.06.2016 passed in O.S.No.76/2014, has

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accepted the Court Commissioner’s report, and drawn the final decree. We do not find any error in the impugned final decree passed by the trial court. Accordingly, we answer point No.1 in the negative.

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Point No.2.

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