Sri Suresha Vs Sri N C Venkatesh

SRI. M.S. YOGESH S/O LATE SHAMBULINGAPPA AGED ABOUT 70 YEARS R/AT NO.3064, <SHIVADHAMA= NEAR CHENNAPPA LAYOUT DEVIRAMMANAHLLI NANJANGUD TOWN MYSURU DISTRICT-571 301.

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&RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.01.2024 PASSED IN R.A.NO.147/2022 ON THE FILE OF THE V ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 07.04.2022 PASSED IN FDP.NO.24/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, NANJANGUD.

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

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission and I have heard learned counsel for the appellants.

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This second appeal is filed against the concurrent finding of the Trial Court.

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The factual matrix of case of the plaintiffs while seeking the relief of partition and separate possession is that the Trial Court granted the relief in respect of item Nos.1 to 3 and 6 and 7 and dismissed the suit in respect of item Nos.4 and 5 while passing the in FDP No.24/2014. The same was challenged before the First Appellate Court in R.A.No.111/2020. The First Appellate Court having considered the material on record, remanded the same by setting aside the order passed in FDP vide order dated 02.12.2019, wherein a direction was given to appoint an Engineer to effect partition of item Nos.1, 4 to 7 of the schedule property.

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The Trial Court having considered the order passed by the First Appellate Court, reconsidered the material in FDP

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No.24/2014 and vide order dated 30.01.2024, having considered the order passed in R.A.No.111/2020, taken note of dismissal of earlier suit in respect of item Nos.4 and 5 and found some error in passing the order in R.A.No.111/2020 in respect of item Nos.4 and 5 and clarified that decree has been drawn only in respect of item Nos.1, 6 and 7 of the schedule property which has been discussed in paragraph Nos.19 to 23 and detailed order was passed to effect division by appointing a commissioner and commissioner report was also considered. As per the commissioner report, when the schedule No.1 was being measured for partition, the defendant No.2 and counsel were present and they have not allowed to measure the said property. However, the measurement work is completed and commissioner report is also taken note of that no cooperation with regard to measurement of the said partition as per decree and in detail taking into note of the same in paragraph Nos.31, 32 and 33, an observation is made in paragraph No.33 that it can be gathered from the material on record, there is no prejudice or inconvenience caused to the appellants/respondent Nos.2 to 4, they got their share in the suit schedule property. The share and the rights of respondent Nos.1 and 2/plaintiffs is

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confirmed by the High Court of Karnataka. As per the confirmation of the right, the Trial Court has drawn the final decree and allotted share to the plaintiffs.

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Having considered the material on record comes to the conclusion that no ground is made out to set aside the decree in respect of item No.3 is concerned and the same is not the subject matter of order dated 07.04.2022 which has attained its finality vide order dated 02.12.2019. Having considered the same comes to the conclusion that Trial Court has properly drawn the decree on appreciating the entire records. The First Appellate Court also considering the material on record comes to the conclusion that there is no error on the part of the Trial Court in considering the material on record, since the Trial Court has also considered the matter in respect of the issue for which it was remitted and passed an order and there was no order in respect of item Nos.2 and 3 and taken note of the fact that order was only in respect of item Nos.1, 6 and 7 order. Having considered the reasoning of the Trial Court in FDP and also the First Appellate Court, the present second appeal is filed before this court.

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The main contention of learned counsel appearing for the appellants before this Court is that both the Courts were not justified in allowing the FDP when there is no land for partition in item No.3 of the schedule property which is classified as 8B9 kharab in the revenue records. It is also contented that when the plaintiffs themselves have filed the objection to the Commissioner9s report in respect of item No.1 of the schedule property where there is no pathway to reach the share allotted by the Court Commissioner, wherein a public road constructed on the suit schedule property that is belonging to Devirammanahalli Village Panchayath and the said land was converted prior to filing of the suit, the Court ought not to have passed such an order. The First Appellate Court also committed an error in re-appreciating the material on record. Hence, it requires interference of this Court.

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Having heard learned counsel for the appellants, the main contention of learned counsel appearing for the appellants before this Court is in respect of item Nos.2 and 3 is concerned i.e., even in the earlier order passed in R.A.No.111/2020, no discussion was made with regard to the

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same. Apart from that, the counsel would vehemently contend that when the order was set aside by the First Appellate Court in R.A.No.111/2020, the same is in respect of entire order passed in FDP and not in respect of item Nos.2 and 3 is concerned and direction given by the First Appellate Court in respect of only item Nos.1, 4 to 7 of the suit schedule property is not correct. The said contention cannot be accepted for the reason that when such order has been passed, particularly in respect of item Nos.1, 4 to 7 of the suit schedule property and the said order has attained its finality and the earlier order dated 02.12.2019 passed in FDP No.24/2014 was also taken note of by the Trial Court as well as the First Appellate Court and nothing is discussed with regard to setting aside the decree in respect of item Nos.2 and 3 of the suit schedule property. When such being the case, the very contention of learned counsel for the appellants cannot be accepted.

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The other contention that granting share in respect of item Nos.1, 6 and 7 of suit schedule property is also not correct cannot be accepted, since as directed by the First Appellate Court by appointing an Engineer, partition was

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effected in respect of item Nos.1, 6 and 7 and the order was passed by the Trial Court, wherein the operative portion is very clear that in continuation of the order dated 02.12.2019, regarding remaining item properties in the petition schedule properties which has already attained finality, this order is passed in respect of item Nos.1, 4 and 5 of properties, which are respectively suit schedule item Nos.1, 6 and 7 properties and also taken note of report dated 11.03.2022 filed by the Court Commissioner, who is a Civil Engineer and the same is accepted by overruling the objections filed by respondent Nos.2 and 3 and detailed order was passed. The same was reconsidered by the First Appellate Court while reassessing the material available on record and taken note of the very contention of learned counsel and in detail discussed from paragraph Nos.19 to 33 and comes to the conclusion that when the earlier order passed in FDP has attained its finality, only issue is in respect of item Nos.1, 6 and 7, since the very suit is dismissed in respect of item Nos.4 and 5 and also earlier order in respect of item Nos.2 and 3 has attained its finality and all these factors were taken note of, particularly in paragraph Nos. 19 to 23 and in paragraph Nos.25 and 26, discussed the same

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that partition is made only in respect of item Nos.1, 6 and 7 and in paragraph No.26 also taken note that item Nos.1, 6 and 7 are only subject matter of partition and also taken note of the fact that Commissioner has submitted his report in respect of item No.1 after the remand order was passed in R.A.No.111/2020 and as per the commissioner9s report itself, when schedule item No.1 is being measured for partition, the defendant No.2 and counsel were present and they have not allowed to measure the said property. However, the measurement work is completed is also taken note of. Hence, it is very clear that these appellants have also not co-operated even after remand also for division of the property. The Trial Court after remand also taken note that with the assistance of Engineer as directed by the First Appellate Court partitioned the property and even in paragraph No.33 of the judgment of First Appellate Court also, it is very clear that it is a third round of litigation which has started from 2006. There is no illegality or impropriety found in the order of the Trial Court again to reconsider the order of the Trial Court and set aside the same. It can be gathered from the material on record also there is no prejudice or inconvenience caused to the appellants/respondent

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Nos.2 to 4, they got their share in the suit schedule property and considering the material on record dismissed the appeal. When such being the reasoning given by the Trial Court and the First Appellate Court while considering the case of the appellants and the very contention of the learned counsel for the appellants that no finding with regard to item Nos.2 and 3 of the suit schedule property cannot be accepted which has already attained its finality and the same is taken note of by the Trial Court as well as the First Appellate Court and no ground is made out to invoke Section 100 of CPC.

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