Karnataka High Court
Irene Menezes Nee Fernandes vs Lilly Fernandes on 11 November, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF NOVEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
M.S.A.NO.92/2007
BETWEEN:
IRENE MENEZES NEE FERNANDES
D/O FRANCIS FERNANDES
AGED ABOUT 56 YEARS
R/O: 02/8, BANGUR NAGAR
GOREGAUM,
MUMBAI. ..APPELLANT
(BY SRI.CYRIL PRASAD PAIS, ADVOCATE)
AND:
1.LILLY FERNANDES
AGED 62 YEARS
W/O LATE SEVERINE FERNANDES
R/O MACHAR HOUSE
BADAGA YEKKARU VILLAGE
NEERUDE
MANGALORE TALUK
2.ALBERT FERNANDES
MAJOR
R/AT MOCHAR HOUSE,
NEERUDE POST
MANGALORE TALUK
2
3.FELIX FERNANDES
SINCE DEAD BY LRS
3(a)THERESA FERNANDES,
W/O FELIX FERNANDES
AGED 62 YEARS,
R/AT MOCHAR HOUSE,
NEERUDE POST
MANGALORE TALUK
3(b)FELCY GRACY FERNANDES
AGED 38 YEARS
D/O LATE FELIX FERNANDES
R/AT MOCHAR HOUSE,
NEERUDE POST
MANGALORE TALUK
3(c)WRERMY CYNTHI FERNANDES
AGED 32 YEARS
S/O LATE FELIX FERNANDES
R/AT MOCHAR HOUSE,
NEERUDE POST
MANGALORE TALUK
3(d)WILMA FERNANDES
AGED 29 YEARS
D/O LATE FELIX FERNANDES
R/AT MOCHAR HOUSE,
NEERUDE POST
MANGALORE TALUK
4.NATHALIAN SEQUIERA NEE
FERNANDES
S/OF LATE FRANCIS
MAJOR
R/AT KOLLOLI HOUSE,
3
BAJAVAI POST 574 163
VIA KATIPALLA,
MANGALORE TALUK
5.BENEDICT DIAS NEE
FERNANDES
S/O LATE FRANCIS
MAJOR
R/AT P.O.BOX NO. 54173
P.CODE NO 85862
JIEEB-A1-SHOUYOKH KUWAIT
BAJAVAI POST 574 163
VIA KATIPALLA
MANGALORE TALUK
6.STEPHANIA CUTINHA NEE
FERNANDES
S/OF LATE FRANCIS
MAJOR
R/AT KALLOLI HOUSE,
BAJAVAI POST 574 163
VIA KATIPALLA,
MANGALORE TALUK
7.LESLI FERNANDES
S/O PAUL FERNANDES
MAJOR
R/O P.O. BOX NO 538
DAMMAM 31421
SAUDI ARABIA
8.LEIZEE CRSTAO
S/O PAUL FERNANDES
MAJOR
R/O P.O. BOX NO 538
DAMMAM 31421
SAUDI ARABIA
4
9.STEVEN FERNANDES
S/O PAUL FERNANDES
MAJOR
R/O P.O. BOX NO 538
DAMMAM 31421
SAUDI ARABIA
10.JYOTHI REBELLO
A.L. 5B, 16/5, SECTOR-5
AIROLI,
NEW BOMBAY 400 078
11.NARAYANA KARKERA
HUSBAND OF LATE LUCY KARKERA
NEE FERNANDES,
MAJOR
R/O BUILDING NO. 150/4555,
KANAMWAR NAGAR,
VIKROLI EAST,
MUMBAI -400 083
12.LILLY FERNANDES @ ASHA
D/OF LATE LUCY KARKERA NEE
FERNANDES,
MAJOR
R/O BUILDING NO.150/4555,
KANAMWAR NAGAR,
VIKROLI EAST,
MUMBAI-400 083
13.BABU KARKERA
S/OF LATE LUCY KARKERA
NEE FERNANDES,
MAJOR
R/O BUILDING NO. 150/4555,
KANAMWAR NAGAR,
5
VIKROLI EAST,
MUMBAI -400 083
14.USHA LOKHANDI
D/OF LATE LUCY KARKERA
NEE FERNANDES,
MAJOR
R/O SASVDI 161/6031,
KANNAMWAR NAGAR-1
VIKROLI EAST,
MUMBAI 400 083
15.SAMUEL JOHN SALDANHA
FATHER'S NAME NOT KNWON
MAJOR
R/O HILL TOP
GUTTAKADU ROAD,
KINNIGOLI POST,
MANGALORE TALUK- 574160
16.MAXIM EDWARD FERNANDES
S/OF LATE SEVERINE FERNANDES
MAJOR
R/AT MACAHR GURKAR'S HOUSE
NEERUDE POST 574 163
VIA GANJIMUTT
MANGALORE TALUK
17.LANCY MICHEL FERNANDES
D/O LATE SEVERINE FERNANDS
R/O SHETTY BETTU HOUSE
SANCHARIPETE POST 576 128
MUNDKUR VILLAGE (POSHRAL)
KARKALA TALUK
18.VINCENT FERNANDES
S/O LATE SEVERINE FERNANDES
6
R/O SHETTY BETTU HOUSE
SANCHARIPETE POST 576 128
MUNDKUR VILLAGE
(POSHRAL)
KARKALA TALUK
19.ELCY THEMA PINTO
D/O LATE SEVERINE FERNANDES
R/O SHETTY BETTU HOUSE
SANCHARIPETE POST 576 128
MUNDKUR VILLAGE
(POSHRAL)
KARKALA TALUK ..RESPONDENTS
(BY SRI.PUNDIKAI ISHWARA BHAT, ADVOCATE FOR R-1,
NOTICE TO R-2 TO R-19 DISPENSED WITH VIDE ORDER
DATED 25.10.2007)
THIS MSA IS FILED U/O 43 R 1(u) OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 02.12.2006 PASSED
IN R.A.NO.38/2005 ON THE FILE OF THE I ADDL. CIVIL
JUDGE (SR.DN), AND CJM, MANGALORE, ALLOWING THE
APPEAL AND SETTING ASIDE THE ORDER DATED
03.02.2005 PASSED IN FDP NO.20/2002 ON THE FILE OF
THE PRL. CIVIL JUDGE (JR.DN), MANGALORE D.K,
ALLOWING THE PETITION FILED U/O 20 R 18 R/W
SECTION 151 OF CPC TO APPOINT A COURT
COMMISSIONER.
THIS MSA COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
7
JUDGMENT
Petitioner in FDP Proceedings 20/2002 is questioning the correctness and legality of the Judgment and decree passed by I Additional Civil Judge, (Senior Division) & CJM, Mangalore dated 02.12.2006 in R.A.38/2005 whereunder lower Appellate court has set aside the order passed by Principal Civil Judge (Jr.Dn), Mangalore, D.K dated 03.02.2005 in FDP 20/2002 accepting the report of the court commissioner and remanded the matter for adjudication afresh.
2. It is the contention of Sri.Cyril Prasad Pais, learned counsel appearing for appellant that Judgment and decree passed by lower Appellate Court remanding the matter to be adjudicated afresh by setting aside the order of acceptance of court commissioner's report by trial court is erroneous inasmuch as it has not considered the fact that shares allotted by the court commissioner as per Judgment and 8 decree passed by the trial court allotting 1/9th share to each of the parties was based on respective parties being in possession of those lands. He would also draw the attention of the court to statement of objections filed by 15th respondent in FDP proceedings wherein legal heirs of deceased defendant No.3 (15th respondent in FDP) had sought for allotment of lands which is said to be in their possession as morefully described in the schedule to the said statement of objections and contends that by taking note of the statement of objections as also the claim made before the court commissioner, who had visited all the properties and had ascertained the views of the parties and considered objections raised by them at the time of conducting spot inspection and after ascertaining as to whether they were in possession of portions of land claimed by them, partition came to be effected by metes and bounds and contends that after ascertaining the same and considering the pleas put forward by the parties claim to be in possession of the lands has filed a report which came to be accepted by trial court 9 rightly and hence he contends that appellate court was not justified in reversing the finding of the trial court. He would also contend that lower Appellate court failed to notice even when spot inspection was conducted by court commissioner, first respondent had requested the court commissioner to note the possession and enjoyment and improvements made by legal heirs of defendant No.3 and allotment of shares as per respective possession was sought for and accordingly the report came to be made by the court commissioner in his report which did not call for interference and lower appellate court as such could not have reversed the finding recorded by trial court accepting the court commissioner's report. He would contend that lower appellate court erred in arriving at a conclusion that court commissioner ought to have valued entire property before recommending for partition based on possession inasmuch as suit properties are all agricultural properties and when first respondent has herself claimed that she should be allotted lands which is in her possession wherein she had made vast improvements she cannot 10 contend that valuation was not made by court commissioner and as such there is improper allotment of shares. He would also contend that lower Appellate Court failed to note that there was equitable division of the properties made by the court commissioner taking into consideration the vast improvements made by the parties of the lands in which they were in their possession and as such it cannot be construed that there was inequitable partition. On these grounds he seeks for setting aside the order passed by lower Appellate court and allowing the appeal.
3. Per contra, Sri.Pundikai Ishwara Bhat, learned counsel appearing for first respondent (legal heir of defendant No.3) would contend that order of remand passed by lower appellate court is just and proper since trial court order accepting court commissioner's report was contrary to statutory provision namely Order XXVI Rule 14 of CPC and contends when there is partition of the properties the valuation of shares has to be ascertained by the executing 11 court and it should ensure that there is equitable distribution of shares depending upon the valuation and non consideration of this aspect has resulted in erroneously accepting the report of court commissioner by trial court and as such lower appellate court was completely justified in interfering with the said order passed by trial court and setting aside the same and remanding the matter back to the trial court for adjudication afresh.
4. Having heard the learned advocates appearing for the parties and on perusal of the Judgment and decree passed by lower appellate court in R.A.38/2005 dated 02.12.2006 I am of the considered view that following point would arise for my consideration:
"1. Whether the order of remand dated 02.12.2006 passed by lower appellate court in R.A.38/2005 by setting aside the order of trial court dated
03.02.2005 accepting the court commissioner's report is in accordance with the provisions of C.P.C 12 or contrary to same and as such it would call for interference at the hands of this court?
2. What order?"
5. It is not in dispute that in a suit filed by appellant herein for partition and separate possession of joint family properties in O.S.245/1999 same came to be decreed and in order to enjoy the fruits of the said decree whereunder the parties were allotted 1/9th share in the suit schedule properties Final Decree Proceedings in FDP 20/2002 came to be filed. For reasons best known the said proceedings have been pending before trial court and lower appellate court for 11 long years. Plaintiff filed an application under order XX Rule 18 read with section 151 of C.P.C seeking for appointment of court commissioner for division of plaint `A' schedule property as per preliminary decree passed in O.S.245/1999 allotting 1/9th share in the plaint schedule to the plaintiff and seeking for handing over possession of the same and for other reliefs. Said petition came to be opposed 13 by first respondent herein (one of the legal heir of defendant No.3) by filing statement of objections. Thereafter a learned member of the Bar came to be appointed as court commissioner and after visiting the spot by issuing notice to all the parties and after considering the points raised by them both orally and in writing submitted a report to the trial court on 16.07.2004 enclosing therein sketch prepared by the surveyor who assisted the court commissioner as per the orders of court. Objections to the court commissioner's report came to be filed by first respondent herein (one of the legal heirs of defendant no.3). A specific contention had been taken up in paragraph 13 of statement of objections that first respondent is in actual possession and enjoyment of Sy.No.100. Trial court after considering the objections and also after examining the rival contentions raised by learned advocates appearing for respective parties accepted the report of court commissioner and allotted shares in favour of petitioner and respondent as mentioned and recommended in 14 the court commissioner's report and in the annexed map thereto.
6. Lower appellate court held acceptance of court commissioner's report by trial court or in other words court commissioner's report has not been considered in proper perspective and contrary to the law laid down by the Hon'ble Apex Court in the case of M.L.Subbaraya Setty and others Vs M.L.Nagappa Setty and others reported in AIR 2002 SC 2066 and as such it has set aside order of trial court which is under challenge in this appeal.
RE: POINT NO.1:
7. In the background of the facts as stated herein above it requires to be noticed that first respondent herein (15th respondent in FDP proceedings) having been served with the notice of FDP proceedings appeared and filed her statement of objections contending interalia that immovable property described in the schedule to the objection statement be 15 allotted to her as she was in possession. In her words objections filed by her in FDP proceedings reads as under:
"1. The petition is false xxx This respondent has been in possession and enjoyment of the immovable property described in the schedule hereinbelow since past many years as per the understanding between the parties. This respondent has effected vast improvements over the said properties. She has been looking after, managing and cultivating the said properties. This respondent has spent more than Rs.3 lakhs for constructing a residential house in the schedule properties by spending her own money".
3. This respondent was working out of India i.e., Saudi Arabia and all her children were working outside India. They have spent huge amounts for the improvements for the as narrated above. They have invested their life savings for the development of the aforesaid properties. Therefore, under equity it is submitted that the aforesaid facts are to be taken into consideration while dividing the property 16 as per the decree. This respondent has been in possession of forest-land".
In the schedule described to the said statement of objections she has specifically stated as under:
ITEM NO. SURVEY NO. EXTENT
A-C
1. 92/1 0-41
2. 92/4 0-93
3. 92/2 0.71
4. 99/1A 3.86
With building, Well, hut and trees growths and with all easementary rights of way and water appurtenant thereto.
Sd/-
15th respondent
8. It has been her specific case before the court below that she is in possession and enjoyment of above referred properties. Court commissioner was appointed by trial court by providing assistance of ADLR and parties were permitted to file work memo before the court commissioner. On report being filed on 16.07.2004 petitioner and respondents 1 and 2 therein have requested the trial court to accept the said 17 report as could be seen from order sheet dated 06.08.2004. Similarly respondent No.5 therein has also filed a memo dated 13.08.2004 that as per supplemental decree passed in the above suit, they may be allotted share taking into account enjoyment of suit property which is in their occupation. However, respondent No.15 therein i.e., first respondent herein filed objections to the commissioner report and opposed the report. In the light of said objections trial court has examined as to whether said objection is to be sustained or otherwise.
9. It requires to be noticed that in the counter filed to the FDP proceedings no where 15th respondent has contended that she is in possession and enjoyment of Sy.No.100. Even in the worksheet produced by her before court commissioner at the time of spot inspection she has not stated that she is in possession of Sy.No.100. Infact it is noticed by court commissioner in his report that she was not in possession of Sy.No.100. On the other hand worksheet filed by her before 18 the court commissioner was in consonance with counter filed by her to the FDP proceedings. Having said so she has attempted to improvise her version stage by stage and step by step. In paragraph 13 to the statement of objections filed to the court commissioner's report she contends that Sy.No.100 totally measures 9.07 acres a prime land situated abutting the main public road and its value is more than 10 times than other lands and "she is in actual possession and enjoyment of the said property". Neither in the counter filed to the FDP proceedings nor in her work sheet filed before the court commissioner such a plea had been raised by her. Infact perusal of the court commissioner report which is available on record would indicate that said court commissioner with the assistance of ADLR has visited each of the survey number which is the subject matter of FDP proceedings for purposes of ascertaining factual matrix and to compare the same with the revenue records produced by the parties and revenue records available with the ADLR and only 19 after such comparison has demarcated the land in possession of the respective parties.
10. Insofar as Sy.No.100 is concerned court commissioner has clearly held that plaintiff is in possession of 2.71 acres, first defendant is in possession of 2.71 acres and second defendant is in possession of 0.46 acres and fifth defendant is in possession of 1.15 acres. Thus, total land in possession of these parties would be 7.03 acres. 2.04 acres which is on northern side of the road as per report of the commissioner which is referred as part V in the sketch is left out since it was noticed said property is a hilly area full of wild trees growth. This would clearly indicate that 15th respondent before FDP court was not in possession and enjoyment of the said property at all. Infact it is not her case also when she filed statement of objections in the first instance that she had asserted to be in possession of Sy.No.100. A stray sentence in paragraph 13 of her statement of objections to commissioner's report which is 20 extracted herein above would not come to her rescue to arrive at a conclusion that she was in possession of Sy.No.100. Plea raised in the said statement of objections is as vague vagueness could be. As such said plea was rightly not entertained by the trial court.
11. Be that as it may. Lower appellate court found that there was no valuation of the property made by the court commissioner and as such it is contrary to law laid down in the case of M.L.Subbaraya Setty and others Vs M.L.Nagappa Setty and others reported in AIR 2002 SC 2066. Hence, it would be relevant to extract relevant paragraphs of the judgment which has been pressed into service by Sri.Pundikai Ishwara Bhat, learned counsel for respondent No.1 before this court and reads as under:
"28. The Trial court for allotting the Coffee estate and other immovable properties only to the defendants relied upon the underlined sentence in direction No.4 of the earlier decision. The direction has been misconstrued and misinterpreted by the trial court. It 21 is true, as contended by Mr.Shanti Bhushan, that the direction that the plaintiff is entitled to 2/19th share in the joint family property and that he shall be put in separate possession of the properties giving him share by metes and bounds does not mean that every item of the property is to be divided between co-sharers. It is correct that the only requirement is that property allotted to each co-sharer should bear approximately the same value as corresponds to his share. It may also not be necessary that if the properties consist of movable and immovable properties then each party must necessarily be given a share in all movable and immovable properties. While effecting partition of joint family properties, it may not be possible to divide every property by metes and bounds. The allocation of properties of unequal value may come to the share of a member of a joint family at the time of effecting partition but for that necessary adjustments have to be made. It can also happen that some of the co-sharer on partition may not get any share in immovable property. No hard and fast rule can be laid. It depends upon the facts of each case. It depends upon the nature of the immovable property and number of such properties as also the number of members to whom it is 22 required to be divided. Properties of a larger value may go to one member. Property of lesser value may go to another. What is necessary, however, is the adjustment of the value by providing for payment by one who gets property of higher value. In short, there has to be equalization of shares. But that is not what has been done by the Trial court in the present case. The Trial court going by the valuation of July, 1940 has allotted shares and bonds to the plaintiff and immovable property to the defendants and for this partition support was also sought to be drawn from the aforequoted sentence from direction No.4. That was certainly not the intention. It was a case of a total misinterpretation and misconstruction of the decree passed by this Court which has been set right by the High Court in judgment under appeal. It was not the direction of this Court that in each and every survey number of the Coffee estate, the plaintiff should be given 2/19th share by metes and bounds. We do not think that the impugned judgment of the High Court also directs that.
36. The acceptance of the contention now sought to be raised would amount to going behind the preliminary decree. That is not permissible. Before 23 concluding, we wish to clarify that the observation of the High Court that the plaintiff is entitled to share in each of the joint family property does not mean the actual partition of all such properties by metes and bounds. We may also clarify that the direction that the present possession of the parties shall be respected as far as possible also does not mean that if the plaintiff is not in possession of any immovable property and the same are in possession of the defendants, he could not be allotted the immovable property even though he is so entitled as per his share. If that was so, the words "as far as possible" in the said direction would become redundant. When the Court directs that the present possession of the parties shall be respected, it means that if partition of the property is to be effected, then as far as possible the person in possession of a property should be allowed to retain it by equalization of share but it does not mean that a person out of possession of all immovable properties should not be allotted any part of the immovable property whatsoever. In view of the earlier decision and aforesaid discussion, it is not possible to accept the contention that the plaintiff is not entitled to a share in the joint family immovable properties".24
12. In the said case Trial Court while allotting shares to respective parties had proceeded on the basis of valuation of July 1940 ignoring the fact that final decree proceedings was of the year 1999. It is in this background Hon'ble Apex Court has held that valuation as on 1999 ought to have been taken into consideration to avoid any inequitable distribution of properties on account of changes that would have taken place. In fact very provision of CPC Order 26 Rule 14 is clear and unambiguous and it reads as under:
"14. Procedure of Commissioner:-
(1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorized thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.
(2) The Commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of 25 each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the Court; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same.
(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit."
13. A reading of Rule 14 of Order XXVI would indicate a Commissioner appointed to make partition of immovable property can after such enquiry as the case may require divide the property into as many shares as it has been directed by the order and shall allot such shares to the parties and if authorised by the said order also award sums to be paid for the purpose of equalizing the value of shares as per sub-rule (1) of Rule 14. The Commissioner thereafter has to prepare and sign a report appointing the share of each party and distinguishing each share by metes and bounds to 26 the court which issued the commission. Thereafter the court after hearing any objection which the parties may make to the report or reports would confirm, vary or set aside the said report.
14. Keeping the provision in mind when Order passed by Trial Court is examined and the report of Commissioner is perused, it would indicate that Court Commissioner in paragraph 6(c)(ii) has noted the improvements effected by first respondent herein (15th respondent before FDP) to the following effect:
"13. Now let me look in to the xxxxxxxxxxxxxxxx 15th respondent at point No.6(c)(2) as under:
(ii) it is very important to note that on 14.3.2004 the counsel Sri.Pradeep who is representing defendant No.3(Lr's) along with his parties told the undersigned to note the possession and enjoyment of the property and allot the same in their favour. However, till than the defendant No.3(LR's) claimed their share as per the valuation in entire survey number and for 27 getting their share even she is ready to give up her possession and enjoyment of the property. For the purpose of getting her share as per the enjoyment except part 1, which is shown in yellow colour, she gave up the same with improvements over it.
Even she has not objected to allot the same to the defendant No.2(Lr's) Smt Theresa who is in enjoyment of adjacent property of defendant No.3. Therefore, as per the representation made by the defendant (Lr's) No.3 the property which is shown in Green colour is set apart to the share of Theresa towards equalization of the share. That the property shown in yellow colour is in the enjoyment of defendant No.3 referred as part I, measures 0.13 acres. It is an aracnut garden and there is a covered well and electric pump is installed to draw the water. To the western side portion a small portion which is also in the enjoyment of defendant no.3(LR's) referred as par 1 measures 0.05 acres."
(Emphasis supplied by me)
15. Trial Court having noticed this aspect as also the plea put forth by the very same respondent to the final decree 28 proceedings wherein she had sought for allotment of her shares in the property described in the schedule to the objections / counter and found that equalization of shares has been made between defendant No.2 and legal representatives of defendant No.3 with regard to their respective shares. As rightly held by Trial Court the very objection filed by first respondent herein to the Commissioner's report by referring to paragraph 18 that she is willing to exchange property allotted to plaintiff / petitioner in lieu of property allotted to her share, by the Court Commissioner would indicate the malafide intention on her part and as such the court commissioner report was required to be accepted, inasmuch as when first respondent herein claims that she has made vast investments by spending rupees three lakhs, having constructed a residential building and having dug a borewell and made other vast improvements to enhance the potential of the land in her occupation namely survey No.19/A, she cannot be heard to contend that she is prepared to exchange the property in her occupation to the 29 property allotted to petitioner. In fact even before the Court Commissioner in the work sheet submitted she has nowhere stated that valuation is required to be made or only after such valuation is ascertained Court should make equal distribution of the properties. It is also necessary to note that first respondent herein who was the 15th respondent before the Final Decree Proceedings had filed work memo before the court commissioner wherein she has not at all sought for from the Commissioner to note about the valuation of the properties but has only requested the court commissioner to note and report the properties of respondents 15 to 19 and also to note about improvements effected by her over the property in her occupation which was duly taken note of by the Commissioner and accordingly shares came to be allotted. In fact trial court has noticed the improvements made by the parties to the lis and particularly improvements said to have been carried out by first respondent herein and having taken note of said fact, has proceeded to accept the report of Court Commissioner.
30
16. Said order of the trial court does not suffer from any infirmity, inasmuch as on account of acceptance of said report there is no unequal distribution of properties nor the value of property which has been allotted to the share of first respondent herein is neither lesser in value nor property allotted to plaintiff is higher in value, as contended, inasmuch as Trial Court has taken note of improvements made by first respondent herein into consideration at the time of accepting the report of Court Commissioner. Hence, lower appellate court was not justified in passing an order of remand by setting aside the order of Trial Court.
17. Hence, for the reasons discussed hereinabove, I am of the considered view that order of the lower appellate court remanding the matter to the Trial Court, was not called for and it suffers from patent illegality as noted hereinabove.
For the reasons aforestated following is passed: 31
ORDER i. Appeal is hereby allowed.
ii. Judgment and decree passed by I Additional Civil Judge (Sr. Dn.), Mangalore in R.A.No.38/2005 dated 02.12.2006 is hereby set aside.
iii. Order passed by Principal Civil Judge (Jr.Dn.), Mangalore, dated 03.02.2005 in F.D.P.No.20/2002 is hereby restored.
iv. Parties to bear their respective costs.
Sd/-
JUDGE SBN/DR