Karnataka High Court
G K Yalloji vs G K Murulidhara on 12 June, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12th DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.Nos. 9547-9548/2017 (GM-CPC)
BETWEEN:
G K YALLOJI
S/O BUTHOJI @ PAKKIRAPPA
AGED ABOUT 61 YEARS
AGRICULTURIST
R/AT KAMALAPURA VILLAGE,
CHANDRAGUTTI HOBLI,
SORABA TALUK-577429
SHIMOGA DISTRICT
... PETITIONER
(BY SRI.SACHIN B S, ADVOCATE)
AND:
1. G K MURULIDHARA
S/O BUTHOJI @ PAKKIRAPPA
AGED ABOUT 51 YEARS,
R/AT KAMALAPURA VILLAGE
CHANDRAGUTTI HOBLI,
SORABA TLAUK-577429
SHIMOGA DISTRICT.
2. G K RAMACHANDRAPPA
S/O BUTHOJI @ PAKKIRAPPA
AGED ABOUT 41 YEARS,
AGRICULTURIST
R/AT KAMALAPURA VILLAGE
CHANDRAGUTTI HOBLI,
SORABA TLAUK-577429
SHIMOGA DISTRICT.
2
3. SMT. SANNAMMA
W/O RAMAPPA
AGED ABOUT 66 YEARS,
R/A MUDADEEVALIGE VILLAGE,
SORAB TALUK
SHIMOGA DISTRICT-577429
4. SMT. PUTTAMMA
W/O PARASHURAMAPPA
AGED ABOUT 52 YEARS,
OCC: AGRICULTURIST
R/AT YADURU BAILU VILLAGE,
SIRISI TALUK
UTTAR KANNADA DISTRICT-581401
5. SMT.NAGAMMA
W/O B D SHIVAJI RAO
AGED ABOUT 51 YEARS,
R/AT GELAGANI
SHIMOGA DISTRICT-577201
... RESPONDENTS
(VIDE ORDER DATED 12.06.2017 R-1 TO R-4 SERVICE
HELD SUFFICIENT)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH IMPUGNED ORDER DTD:8.12.2016 AND ORDER
DTD:25.1.2017 PASSED ON I.A.NO.20 AND 21 IN FDP
NO.2/2005 ON THE FILE OF CIVIL JUDGE AND JMFC
SHIMOGA AS PER ANENXURE-A AND CONSEQUENTLY
ALLOW IA NO.20 AND 21 AS PRAYED FOR.
THESE PETITIONS COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
Heard Sri B S .Sachin, learned Advocate appearing for petitioner and perused the records. Rejection of applications- I.A.Nos. 20 & 21 filed by writ petitioner (respondent No.2 before Final Decree Court) for recall of the commission warrant till the disposal of the objections raised with regard to item No.8 of the suit schedule property in the final decree proceedings is the subject matter of this writ petition.
2. Writ petitioner herein is the second defendant in final decree proceedings i.e. FDP No.2/2005 which has been initiated by first respondent herein. An application - I.A.No.14 under Order 13 Rule 10 CPC was filed by the petitioner to summon records from the Office of the Secretary, Nyarsi Gram Panchayat contending interalia that property described as the property No.8 in the final decree proceedings is not in existence and petitioner's property which is entirely different is sought to be partitioned. Said application came to be rejected by order dated 02.11.2015 which 4 was assailed in W.P.No.23047/2016. This Court by order dated 26.04.2016 while rejecting the said writ petition observed as under:
"However, dismissal of the application - I.A.No.14 by trial Court and its affirming by this Court in present writ petition would not come in the way of petitioner producing records sought for in the impugned application after obtaining certified copies of same and establish his claim, if any, with regard to item No.8 of suit schedule properties which would be subject to objection, if any, that may be raised by contesting parties. Hence, xxx hereinabove."
On such order being passed, writ petitioner did not produce any documents and as such final decree Court by order dated 24.10.2016 directed issue of commission warrant in respect of item Nos. 6 to 8 of petition 'A' schedule property as already ordered by it on 21.03.2016 whereunder commission warrant was ordered to be reissued to Court Commissioner to report his scheme of partition in respect of item Nos. 6 to 8 of portion of petition 'A' schedule properties in a manner that parties can conveniently enjoy their shares and if 5 same cannot be divided into six (6) parts, Commissioner was directed to state as to how many convenient parts can be made in the said properties. Seeking recall of said commission warrant issued, I.A.No.20 came to filed by the writ petitioner i.e., second defendant. Final decree Court has made an observation while rejecting the application - I.A.No.20 that averments made in the plaint, decree passed and the report of the Commissioner does not suggest there being any dispute with regard to the existence of item No.8 and also its identity. However, the Commissioner's report available on record as per Annexure-K would disclose that Commissioner appointed by the final decree Court to execute the warrant has opined that item No.8 of the schedule has been indicated at Sl.No.22, but said Sl.No.22 does not indicate in which village it is situated. The Commissioner has also opined that he is unable to state correctly about the identity of item No.8 of the property. His opinion expressed in the report reads as under:
6
"zÁªÁ 8£Éà ¸ÀéwÛ£À ¸ÀA§AzsÀ ±ÉqÀÆå¯ï£À°è PÀ.æ ¸ÀA.22 JAzÀÄ £ÀªÀÄÆ¢¹zÀÄÝ, CzÀPÉÌ AiÀiÁªÀ UÁæªÀÄzÀ PÀ.æ ¸ÀA.22 JA§ §UÉÎ £ÀªÀÄÆzÀÄ ±ÉqÀÆå¯ï£À°è E®è.
zÁªÁ ±ÉqÀÆå¯ï 8£Éà ¸ÀévÀÄÛ §UÀgï ºÀÄPÀÄA
eÁUÀªA
É zÀÄ ¥À§
æ ®ªÁV ªÁUÁézU
À ¼
À ÀÄ ¸Àܼz
À °
À è
¥ÀPÀëUÁgÀgÀ ªÀÄzsÉå £Àqz
É À PÁgÀt ¤RgÀªÁV zÁªÁ
8£Éà ¸ÀévÀÛ£ÀÄß UÀÄgÀÄw¸ÀĪÀ°è ¤AiÉÆÃVAiÀiÁzÀ £À£U À É C£ÀĪÀiÁ£Á¸Ààzª À ÁV PÀAqÀħA¢gÀĪÀ PÁgÀt, ¸Àzj À ¸ÀévÀÛ£ÀÄß «¨sÁV¸ÀĪÀ PÁAiÀÄðªÀ£ÀÄß PÉÊ©nÖgÀÄvÉÛÃ£É ªÀÄvÀÄÛ ¸Àܼz À ° À è EzÀÝ ¸ÀAUÀwUÀ¼£ À ÀÄß EzÀÝAvÉ ºÁUÀÆ ¸Àܼz À ° À è £Àqz É À «zsÀåªÀiÁ£ÀU¼ À £ À ÀÄß £Àqz É A À vÉ £ÁåAiÀiÁ®AiÀÄPÉÌ ªÀg¢ À ªÀiÁrgÀÄvÉÛãÉ. ¸À¤ß¢ü £ÁåAiÀiÁ®AiÀÄzÀªÀgÀÄ zÁªÁ ±ÉqÀÆå¯ï 8gÀ ¸ÀéwÛ£À ¸ÀA§AzsÀ CzÀÄ ¦vÁæfðvÀ ¸ÀévÉÛÃ? CxÀªÁ §UÀgï ºÀÄPÀÄA eÁUÀªÃÉ ? EzÀ£ÀÄß «¨sÁV¸À¨ÃÉ PÉÃ? CxÀªÁ ¨ÉÃqÀªÃÉ ? JA§ÄzÀ£ÀÄß ¤tð¬Ä¹zÀ £ÀAvÀgÀ ¤AiÉÆÃVAiÀĪÀgÀ ªÀÄÄSÁAvÀgÀ EzÀ£ÀÄß «¨sÁUÀ ªÀiÁqÀ®Ä CªÀPÁ±À ¤ÃqÀ§ºÀÄzÁVzÉ."
Above report of the Commissioner suggests that there is a doubt with regard to the identity of item No.8 of the suit schedule property. This aspect has not been considered by the final decree Court and as such, it has rejected the application - I.A.No.20 filed by writ 7 petitioner - second defendant and same cannot be sustained. In that view of the matter, prayer for setting aside the order passed on I.A.No.21 would not arise.
Hence, I proceed to pass the following:
ORDER
(i) Writ petitions are hereby allowed in part.
(ii) Order dated 08.12.2016 passed by Civil Judge & JMFC, Soraba dismissing I.A.No.20 in FDP No.2/2005 is hereby set aside.
(iii) Matter is remitted back to the final decree Court i.e., Civil Judge & JMFC, Soraba to adjudicate I.A.No.20 after affording opportunity to the parties and keeping in mind observations made herein above as well as report of the Commissioner.
Ordered accordingly.
SD/-
JUDGE *sp