Karnataka High Court
Sri B N Jamkhandi S/O Late Narayana Rao vs Smt. Shaila W/O Late Ramesh J. Jamkhandi on 19 February, 2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY 2016
BEFORE
THE HON'BLE MR.JUSTICE PRADEEP D. WAINGANKAR
REGULAR FIRST APPEAL NO.425/2012
BETWEEN:-
SRI. B.N. JAMKHANDI
S/O LATE NARAYANA RAO
AGED ABOUT 71 YEARS
R/AT. PORTION OF NO.114 B
24TH CROSS, RAJAJINAGAR II BLOCK
BANGALORE - 560 010.
... APPELLANT
(BY SRI: A.S. GUPTA, ADV.,)
AND:-
1. SMT. SHAILA
W/O LATE RAMESH J. JAMKHANDI
AGED ABOUT 58 YEARS.
2. KUM. TRUPTI
D/O LATE RAMESH J. JAMKHANDI
AGED ABOUT 26 YEARS.
BOTH R/AT. PORTION OF NO. 114 B
24TH CROSS, RAJAJINAGAR II BLOCK
BANGALORE - 560 010.
... RESPONDENTS
(BY SRI: K. SATHISH, ADV., FOR
SRI: B. JANARDHANA, ADV., FOR R-1 & R-2)
2
THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE
ORDERS DATED:03.12.2011 PASSED IN FDP 69/2008 ON THE
FILE OF THE XXII-ADDL. CITY CIVIL JUDGE, BANGALORE,
ACCEPTING THE COMMISSIONERS REPORT.
THIS RFA HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 27.01.2016, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is arising out of the FDP No.65/2008 on the file of the 22nd Additional City Civil Judge, Bangalore, wherein by order dated 03.12.2011 a final decree is ordered to be drawn. The appellant/defendant aggrieved by the said order has preferred this appeal.
2. The appellant is the defendant in O.S.No.8891/2005 on the file of the 22nd Additional City Civil Judge, Bangalore. The respondents were the plaintiffs. The plaintiffs filed a suit for partition and separate possession of their ½ share in the schedule property by metes and bounds in O.S.No.8891/2005. Upon merits, the suit came to be decreed by judgment and decree dated 26.03.2008. The 3 defendant did not challenge the decree. As such, the plaintiffs filed FDP No.69/2008 for actual partition of the schedule property as per preliminary decree by metes and bounds. In the final decree proceedings, the Commissioner was appointed for division of the property. The Commissioner visited the suit schedule property and submitted his report dated 23.03.2011 along with four sketches appended thereto suggesting four options for division of the property. Upon going through the Commissioner's report and sketches appended to the report showing the different options for partition of the schedule property between the plaintiffs and defendants, the Court accepted the Commissioner's report and sketch No.II appended thereto and ordered to draw a final decree in terms of the report of the Commissioner and the sketch No.II appended thereto. As per sketch No.II rear portion is allotted to the plaintiffs shown as A, B, C, D, E, measuring 624 sq. ft. and front portion facing road to the defendant 4 shown as D, C, X, E measuring 519.75 sq. ft. for which the Commission has assigned proper reasons.
3. Aggrieved by the acceptance of the report of the Commissioner and drawing up of final decree, this appeal is preferred by defendant on the ground that there was previous partition between the parties and as per the previous partition, the property was divided into two shares and the parties were put in possession of their respective shares. In pursuance of the same, entries were effected in the Corporation Records and the parties have been paying taxes in respect of their property allotted to them. The appellant has produced all these documents but there was no registered partition deed as such. What was done appears to be a family arrangement. But the defendant has not produced said document at the time of the trial. Nor he cross-examined the witnesses examined on behalf of the plaintiffs nor led his evidence. So also, the defendant has not challenged the 5 preliminary decree passed by the Court below. Plaintiffs filed final decree proceedings and a final decree has been ordered to be drawn. Under such circumstances, these documents now sought to be produced by the defendant/appellant cannot be taken into consideration. Even otherwise, the property has been partitioned by the Commissioner by metes and bounds equitably and the same has been accepted by the Court. The appeal is devoid of merits.
Hence, the appeal is dismissed.
Sd/-
JUDGE PMR