Karnataka High Court
Bassappa S/O Tippanna Pujari vs Mareamma W/O Late Hanmanthraya Pujari ... on 6 June, 2016
Author: Raghvendra S.Chauhan
Bench: Raghvendra S. Chauhan
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 06TH DAY OF JUNE 2016
BEFORE
THE HON'BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN
WRIT PETITION No. 203496/2014 (GM-CPC)
BETWEEN:
Bassappa S/o Tippanna Pujari
Age about 30 years, Occ: Agriculture
R/o Shakapur S.H. Taluk Shorapur
... Petitioner
(By Sri. N. Krishnacharya, Adv.,)
AND:
1. Mareamma W/o Late Hanmanthraya Pujari
Age 45 years, Occ: Agriculture
and Household affairs
R/o Halgera Taluk Shorapur - 585 223.
2. Sharnappa S/o Gundappa Pujari
Age 48 years, Occ: Agriculture
R/o Halgera Taluk Shorapur
3. Hanmayya S/o Hosamani
Age 27 years, Occ: Agriculture
R/o Halgera Taluk Shorapur
... Respondents
********
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This petition is filed under Articles 226 and 227 of the
Constitution of India praying to issue a writ of certiorari to
quash the impugned order passed by the Civil Judge (Jr.
Division), Shorapur in FDP No. 7/2006 dated: 24.05.2012 as
per Annexure-'B' and etc.,
This petition coming on for Preliminary Hearing this
day, the Court made the following:
ORDER
The petitioner, Mr.Basappa, has challenged the legality of the order dated 24.05.2012 passed by the Civil Judge (Junior Division), Shorapur, whereby the learned Civil Judge has directed that the final decree as per the preliminary decree drawn in O.S.No.108/2004 should be drawn up and the decree should be in accordance with the Commissioner's report.
2. The brief facts of the case are that one Ms. Mareamma, respondent No.1 had filed a suit for declaration, partition and separate possession of land bearing Sy.No.108 admeasuring 12 Acres 15 Guntas situated at Halgera village, Shorapur Taluk against the petitioner and against Sharnappa and Hanmayya, respondent Nos.2 and 3 before this court. The said suit was decreed exparte on 26.08.2004. 3 Thereafter, the plaintiff/respondent No.1 initiated the proceedings for the final decree, namely FDP No.7/2006 before the said court. According to the petitioners, the notices in the final decree proceedings were not served upon the petitioners.
3. During the pendency of proceedings before the learned court, the plaintiff-respondent No.1 filed an application under Section 54 of CPC, for appointment of a Commissioner in order to give effect to the partition by metes and bounds, as per the preliminary decree passed by the learned trial court. By order dated 24.05.2012, the learned court allowed the said application. Therefore, the present petition before this court.
4. Mr. N. Krishnacharya, the learned counsel for petitioner has vehemently raised the following contentions before this court:-
Firstly, although notices were issued by the learned court, in the final decree proceedings, the same were not served upon the petitioner. Therefore, the petitioner had no 4 information that the proceedings in the FDP has been initiated by the plaintiff-respondent No.1.
Secondly, the Commissioner had not issued any notice to the petitioner while inspecting the suit property. Therefore, the entire Commissioner's report deserves to be set aside.
Thirdly, that on the basis of Commissioner's report, the revenue records have been changed by deleting the petitioner's name, and by taking the plaintiff-respondent revenue records. Therefore, the impugned order dated 24.05.2012, and the subsequent proceedings deserve to be set aside by this court.
5. Heard the learned counsel for petitioner and perused the order sheets, and the impugned order produced by the petitioner.
6. The stand taken by the petitioner is bellied by the order sheets themselves. Although the petitioner claims that notices were never served upon him, but the order dated 5 19.04.2008, clearly reveals that the learned court has recorded the fact that respondent No.1, 2 and 3 were duly served. Moreover, on 03.01.2009, an Advocate had filed his Vakalath on their behalf, and had sought time to file the objections. Similarly on 07.02.2009, time was sought by the counsel for petitioner for filing his objections. Even on 04.04.2009, the petitioner's counsel had sought time to file his objections. However, the said prayer was turned down by the learned trial court. Therefore, the learned counsel for petitioner is unjustified in pleading that no notice was served upon the petitioner in the Final Decree Proceedings.
7. The order dated 24.05.2012 further reveals that the petitioner did not file any objection to the application filed by the plaintiff-respondent No.1 under Section 54 CPC, for appointment of a Commissioner. Since, no objection was raised, the learned court was certainly justified in appointing the Tahsildar as the Court Commissioner for effecting partition with metes and bounds as per the preliminary decree dated 10.03.2006.
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8. A bare perusal of the order sheets further reveals that, according to the order sheet dated 24.05.2012, both the parties, i.e., the decree holder and the judgment debtors which would include the petitioner, had accepted the Commissioner's report. In case, the Commissioner had not issued any notice to the petitioner, and had submitted his report, naturally the petitioner would have protested against the acceptance of the Commissioner's report. Yet, according to the learned court, the petitioner did not raise any objection as to the acceptance of Commissioner's report on 24.05.2012. Therefore, the contention raised by the learned counsel that the Commissioner did not issue any notice to the petitioner is bellied by the order dated 24.05.2012 itself.
9. As far as the last contention is concerned, suffice it to say that no prayer has been made for setting aside the entry made in the revenue records. Moreover, no such prayer could be made before this court. Therefore, the last contention is unworthy of acceptance by this court. 7
10. For the reasons stated above, this court does not find any merit in the writ petition. It is, hereby, dismissed.
Sd/-
JUDGE Np/-