Sri Krishnappa Vs Smt. Munivenkatamma

SMT.GOWRAMMA W/O KRISHNAPPA AGED ABOUT 55 YEARS R/AT GATTIGANABBE ROAD NEAR NANDASHREE KALYANA MANTAPA HOSAKOTE TOWN BANGALORE RURAL DISTRICT - 562114

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SMT.VENKATALAKSHMMA W/O CHIKKOWAAPPA AGED ABOUT 53 YEARS R/AT SULIBELE VILLAGE AND HOBLI HOSAKOTE TALUK BANGALORE RURAL DISTRICT - 562114

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SMT.SHANTHAMMA W/O VENKATESHAPPA AGED ABOUT 47 YEARS R/AT CHIMANDAHALLI VILLAGE KASABA HOBLI, HOSAKOTE TALUK BANGALORE RURAL DISTRICT - 562114

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SMT.DODDANARAYANAMMA W/O LATE B.HULLURAPPA SINCE DEAD BY HER LRS

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SRI. SRINIVAS S/O LATE HULLURAPPA AGED ABOUT 53 YEARS R/AT HIRANDAHALLI VILLAGE BIDARAHALLI HOBLI BENGALURU SOUTH TALUK BENGALURU 560049

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SMT.SUMA D/O LATE HULLURAPPA AGED ABOUT 35 YEARS R/AT KANEKALLU VILLAGE HOSAKOTE TALUK BENGALURU RURAL DISTRICT - 562114

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…RESPONDENTS

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(BY SRI. B RAMESH, ADVOCATE FOR R.1 TO R.5; SRI.C.RAJANNA, ADVOCATE FOR R.6 AND R.7)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE ORDER DATED 30.01.2025 PASSED IN FDP NO.34/2022 (OLD NO.19/2019) ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, HOSAKOTE ALLOWING THE PETITION FILED UNDER ORDER 20 RULE 18 OF CPC., SEEKING FOR DRAWING UP OF FINAL DECREE IN CONSONANCE WITH PRELIMINARY DECREE PASSED IN OS NO.1293/2008 AND ETC.

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

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal arises out of the final decree proceedings in F.D.P. No.34/2022, which emanates from the preliminary decree passed in O.S. No.1293/2008. The

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appellant–plaintiff is aggrieved by the manner in which the final decree has been drawn.

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This Court has heard the learned counsel

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appearing for the appellant and the learned counsel appearing for the respondents. The submissions advanced on behalf of the respondents merit appreciation for their fairness.

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Learned counsel appearing for the respondents, on instructions, have fairly submitted that the respondents have no serious objection if the appeal is allowed, the final decree is set aside, and the matter is remitted to the Court dealing with the final decree proceedings. He would submit that the principal grievance of the appellant–plaintiff pertains to the non-provision of access to the residential house allotted to him in Item No.4 under the final decree. Learned counsels would further submit that though the respondents are willing to give up their claim over the entirety of Item No.4 to resolve the dispute, the extent so

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given up would have to be suitably compensated by the appellant–plaintiff in the remaining joint family properties.

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Per contra , learned counsel appearing for the appellant–plaintiff would submit that his client would be satisfied if a proper and reasonable access is provided to the residential house allotted to his share in Item No.4. He further submits that in the event additional open space is required to be earmarked towards such access, the appellant–plaintiff is willing to compensate the respondents by way of adjustment in other properties.

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Having considered the submissions of the learned counsel appearing for both sides and bearing in mind that the present appeal arises out of final decree proceedings, this Court is of the considered view that the final decree drawn by the Trial Court, without adverting to the plaintiff’s right of access to the residential house allotted to his share in Item No.4, calls for interference. The controversy between the parties lies within a narrow

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compass and appears capable of being resolved by

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appropriate directions in the final decree proceedings.

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In the light of the rival submissions urged and the material on record, the following points arise for consideration:

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(i) Whether the final decree drawn by the Trial Court in F.D.P. No.34/2022 warrants interference at the hands of this Court?

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(ii) What order?

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Findings on point No.(i):-

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On a careful examination of the records pertaining to the final decree proceedings, this Court is of the considered view that the appellant–plaintiff is essentially aggrieved by the manner in which the final decree has been drawn. Though the residential house constructed by the appellant–plaintiff has been allotted to his share on equitable considerations, his principal grievance is that no access to the said residential house is

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either identified or demarcated in the final decree proceedings. The absence of such access renders the allotment illusory and incapable of effective enjoyment. This grievance is fairly acknowledged by the learned counsel appearing for the respondents.

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Learned counsel for the respondents, however, would submit that in the event this Court is inclined to remit the matter to the Court dealing with the final decree proceedings for reworking the equities, the respondents are willing to relinquish their claim over the entirety of Item No.4, subject to the condition that the appellant– plaintiff compensates the excess allotment in Item No.4 by suitable adjustment in the remaining joint family properties. It is further submitted that even if the appellant–plaintiff confines his claim only to an additional extent of land in the nature of access to the residential

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house situated in Item No.4, the respondents seek corresponding compensation in other properties. These submissions demonstrate that the controversy between

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the parties is not intractable and is capable of being resolved by working out equitable adjustments.

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It is also brought to the notice of this Court that Item No.1, being land bearing Survey No.96/6, has been incorrectly treated as measuring 26 guntas in the final decree proceedings, whereas the actual extent is stated to be 24 guntas. In the event of a dispute regarding the actual extent of Item No.1, the final decree Court is required to ascertain the correct extent by securing a fresh measurement through the jurisdictional survey authorities. Both the appellant–plaintiff and the respondents shall extend full co-operation for conducting such measurement, and no party shall seek to protract the proceedings on that score.

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This Court also takes note of the subsequent development that defendant No.1 has died during the pendency of the proceedings. Consequent upon the said death, there is an enlargement of the share of the

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surviving co-sharers, and the parties would be entitled to 1/7th share each instead of 1/8th share. The final decree Court has failed to advert to this material change in circumstances. In such a situation, it is incumbent upon the final decree Court to first take cognizance of the death of one of the parties, re-determine the shares in accordance with law, and draw a fresh preliminary decree, if necessary, before proceeding to work out the equities by metes and bounds.

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In view of the foregoing discussion, this Court is of the considered opinion that the final decree drawn in F.D.P. No.34/2022 suffers from material irregularity and warrants interference. Accordingly, Point No.(i) is answered in the Affirmative .

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Finding on point No.(ii):

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In the result, the matter is remitted to the Court dealing with the final decree proceedings with the following directions:

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(i) The final decree Court shall re-open the final decree proceedings and consider afresh the issue of providing reasonable and effective access to the residential house allotted to the appellant–plaintiff in Item No.4, so as to ensure meaningful enjoyment of the property.

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(ii) While working out the equities, the final decree Court shall consider:

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(a) the respondents’ willingness to relinquish their claim over the entirety of Item No.4, subject to compensation; or in the alternative, the appellant– plaintiff’s claim being restricted to an additional extent required for access, with corresponding adjustment in other joint family properties.

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(iii) Insofar as Item No.1 (Sy. No.96/6) is concerned,

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the final decree Court shall secure a fresh measurement through the competent survey authorities to ascertain the correct extent of the land and proceed on the basis of such measurement.

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(iv) The final decree Court shall take note of the death of the defendant No.1, re-determine the shares of the parties in accordance with law, and draw a fresh preliminary decree, if so required, before proceeding to pass a final decree.

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(v) After ascertaining the correct extent of Item No.1, the final decree Court shall examine both contingencies with regard to the plaintiff’s claim in Item No.4, namely:

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(a) whether it is feasible to allot the entire extent of Item No.4 to the plaintiff, subject to suitable compensation being worked out in favour of the respondents by way of adjustment in Item Nos.1 to 3, if the plaintiff is willing to accept such allotment; or

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(b) in the alternative, if the plaintiff restricts his

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claim only to a portion of Item No.4 in the nature of access to the residential house allotted to his share,

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the equivalent extent shall be adjusted and allotted

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to the respondents from Item Nos.1 to 3.

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For the foregoing reasons, this Court proceeds to pass the following;

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ORDER

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(i) The appeal is allowed .

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(ii) The order dated 30.01.2025 passed in F.D.P. No.34/2022 on the file of the learned Senior Civil Judge and JMFC, Hosakote, is hereby set aside.

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(iii) The matter is remitted to the Court dealing with the final decree proceedings for fresh consideration in terms of the directions issued at para No.12.

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(iv) The final decree Court shall thereafter complete the final decree proceedings and draw the final decree within a period of four months from the date of receipt of a certified copy of this judgment.

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(v) All parties shall extend full co-operation to ensure expeditious disposal of the final decree proceedings.

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(vi) Since the parties are represented by their respective counsel, they shall appear before the final decree Court on 25.02.2026, without awaiting any further notice.

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Sd/-

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(SACHIN SHANKAR MAGADUM) JUDGE

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NBM

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List No.: 1 Sl No.: 6

Sri Krishnappa v. Smt. Munivenkatamma

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Sri Krishnappa v. Smt. Munivenkatamma

Case brief

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