Karnataka High Court
Sri Ishwarappa S/O Shankrappa ... vs Smt. Mahadevi W/O. Shivashankrappa ... on 23 October, 2024
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NC: 2024:KHC-D:15336
RSA No. 100568 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 100568 OF 2023 (PAR/POS)
BETWEEN:
SRI. ISHWARAPPA S/O. SHANKRAPPA LINGASHETTI.
AGE: 48 yEARS, OCC. AGRICULTURE,
R/O. LAKSHMESHWAR, TQ. LAKSHMESHWAR,
DIST. GADAG-582116.
...APPELLANT
Digitally signed by
VISHAL NINGAPPA
PATTIHAL
(BY SRI. A. VERANNA, ADVOCATE FOR SRI. S N BANAKAR)
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH
AND:
1. SMT. MAHADEVI
W/O. SHIVASHANKRAPPA MULGUND,
AGE: 46YEARS, OCC. HOUSEHOLD WORK,
R/O. HIREGUNJAL, TQ. KUNDAGOL,
DIST. DHARWAD-581117.
2. SMT. GOURAVVA
W/O. SHANKRAPPA LINGASHETTI
AGE: 61 YEARS, OCC. HOUSEHOLD WORK,
R/O. LAKSHMESHWAR, TQ. LAKSHMESHWAR,
DIST. GADAG-582116.
3. SRI. MANJAPPA
S/O. SHANKRAPPA LINGASHETTI,
AGE: 44 YEARS, OCC. AGRICULTURIST,
R/O. PETH BANA, LAKSHMESHWAR,
TQ. LAKSHMESHWAR, DIST. GADAG-582116.
4. SMT. SHANTAVVA
W/O. GONEPPA LINGASHETTI,
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NC: 2024:KHC-D:15336
RSA No. 100568 of 2023
AGE: 71 YEARS,
OCC. AGRICULTURE AND HOUSEHOLD WORK,
R/O. PETH BANA, LAKSHMESHWAR,
TQ. LAKSHMESHWAR, DIST. GADAG-582116.
5. SRI. SHIVANAND
S/O. GONEPPA LINGASHETI,
AGE: 46 YEARS, OCC. AGRICULTURE,
R/O. PETH BANA, LAKSHMESHWAR,
TQ. LAKSHMESHWAR, DIST. GADAG-582116.
6. SRI. RAVI
S/O. GONEPPA LINGASHETTI,
AGE: 46 YEARS, OCC. AGRICULTURE,
R/O. PETH BANA, LAKSHMESHWAR,
TQ. LAKSHMESHWAR, DIST. GADAG-582116.
7. SMT. KASTUREVVA
W/O. JAYAPRAKASH GADAG,
AGE: 51 YEARS, OCC. HOUSEHOLD WORK,
R/O. PETH BANA, LAKSHMESHWAR,
TQ. LAKSHMESHWAR, DIST. GADAG-582116.
8. SRI. CHANDRASHEKHAR
S/O. GONEPPA LINGASHETTI,
AGE: 36 YEARS, OCC. SERVICE,
R/O. PETH BANA, LAKSHMESHWAR,
TQ. LAKSHMESHWAR, DIST. GADAG-582116.
9. SMT. AKKAMMA
D/O. GONEPPA LINGASHETTI,
AGE: 44 YEARS, OCC. HOUSEHOLD WORK,
R/O. PETH BANA, LAKSHMESHWAR,
TQ. LAKSHMESHWAR, DIST. GADAG-582116.
10. SRI. SOMASHEKHARAPPA
S/O. GONEPPA LINGASHETTI
AGE: 36 YEARS, OCC. SERVICE,
R/O. PETH BANA, LAKSHMESHWAR,
TQ. LAKSHMESHWAR, DIST. GADAG-582116.
11. SMT. SHANTAVVA
W/O. GANGAPPA LINGASHETTI,
AGE: 66 YEARS, OCC. HOUSEHOLD WORK,
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NC: 2024:KHC-D:15336
RSA No. 100568 of 2023
R/O. PETH BANA, LAKSHMESHWAR,
TQ. LAKSHMESHWAR, DIST. GADAG-582116.
12. SMT. RENAVVA
W/O. SHANKRAPPA ANNIGERI
AGE: 46 YEARS, OCC. HOUSEHOLD WORK,
R/O. SHIGLI, TQ. LAKSHMESHWAR,
DIST. GADAG-582116.
13. SRI. ANAND
S/O. GANGAPPA LINGASHETTI
AGE: 44 YEARS, OCC. AGRICULTURE,
R/O. PETH BANA, LAKSHMESHWAR,
TQ. LAKSHMESHWAR, DIST. GADAG-582116.
14. SRI. ASHOK
S/O. GANGAPPA LINGASHETTI
AGE: 43 YEARS, OCC. TEACHER,
UMA VIDYALAYA HIGH SCHOOL,
LAKSHMESHWAR, TQ. LAKSHMESHWAR,
DIST. GADAG-582116.
15. SMT. SHOBHA
W/O. SHIVAPPA GADDI,
AGE: 41 YEARS, OCC. HOUSEHOLD WORK,
R/O. KOMBALI, TQ. HUVINAHADAGALI,
DIST. BELLARI-583219.
16. SRI. CHANNAPPA
S/O. BASAPPA LINGASHETTI
AGE: 66 YEARS, OCC. AGRICULTURE,
R/O. PETH BANA, LAKSHMESHWAR,
TQ. LAKSHMESHWAR, DIST. GADAG-582116.
17. SRI. KASHAPPA
S/O. BASAPPA LINGASHETTI
AGE: 61 YEARS, OCC. AGRICULTURE,
R/O. PETH BANA, LAKSHMESHWAR,
TQ. LAKSHMESHWAR, DIST. GADAG-582116.
18. SRI. RAMANNA
S/O. BASAPPA LINGASHETTI
AGE. 56 YEARS, OCC. AGRICULTURE,
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NC: 2024:KHC-D:15336
RSA No. 100568 of 2023
R/O. PETH BANA, LAKSHMESHWAR,
TQ. LAKSHMESHWAR, DIST. GADAG-582116.
19. SRI. YALLAPPA
S/O. BASAPPA LINGASHETTI
AGE: 56 YEARS, OCC. AGRICULTURE,
R/O. PETH BANA, LAKSHMESHWAR,
TQ. LAKSHMESHWAR, DIST. GADAG-582116.
20. SMT. NIRMALA
W/O. MANJUNATH LINGASHETTI
AGE: 42 YEARS, OCC. AGRICULTURE,
R/O. PETH BANA, LAKSHMESHWAR,
TQ. LAKSHMESHWAR, DIST. GADAG-582116.
...RESPONDENTS
(BY SRI. PRASHANT S. KADADEVAR, ADVOCATE FOR C/R1;
R4, R7, R9, R11 TO 19-NOTICE SERVED;
SERVICE OF NOTICE TO R2, R3, R5, R6, R8, R10 AND R20 IS HELD
SUFFICIENT)
THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO CALL
FOR RECORDS ON THE FILE OF SENIOR CIVIL JUDGE AND
J.M.F..C., LAXMESHWAR IN O.S.NO.58/2017 (OLD NO.109/2015)
DISPOSED OF ON 04.10.2018. CALL FOR RECORDS ON THE FILE
OF I ADDL PRINCIPAL JUDGE, FAMILY COURT GADAG IN
R.A.NO.55/2018 DATED 29.05.2023. AND TO SET ASIDE THE
IMPUGNED JUDGMENT AND DECREE PASSED O.S.NO.58/2017 (OLD
NO.109/2015) PASSED BY THE SENIOR CIVIL JUDGE AND
J.M.F..C., LAXMESHWAR DATED 04.10.2018. SO ALSO TO SET
ASIDE THE IMPUGNED JUDGMENT AND DECREE PASSED BY THE I
ADDL PRINCIPAL JUDGE, FAMILY COURT GADAG IN
R.A.NO.55/2018 DATED 29.05.2023., ALLOW THIS APPEAL WITH
EXEMPLARY COST AND TO DISMISS THE SUIT IN O.S.NO.58/2017
AND R.A.NO.55/2018 BY ALLOWING THIS R.S.A. TO MEET THE END
OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
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NC: 2024:KHC-D:15336
RSA No. 100568 of 2023
ORAL JUDGMENT
1. Defendant No.3 is before this Court in this Regular Second Appeal assailing the legality and correctness of the concurrent findings of facts recorded by the Courts below, whereby, the suit seeking for partition and separate possession came to be decreed holding that the plaintiffs are entitled for 1/4th share in the suit item Nos.2(a) to 2(e) and 2(g) to 2(i).
2. Brief facts of the case are that, Suit for partition and separate possession contending that the suit properties are the joint family properties of the plaintiffs and defendants and the plaintiffs are entitled for 1/4th share in the suit properties.
3. During the pendency of the suit, defendant No.1 the father of the plaintiff and defendant Nos.3 and 4 died.
4. Defendant No.4 filed written statement which was adopted by defendant No.2, contending that the suit schedule 2(f) property is the self acquired property of -6- NC: 2024:KHC-D:15336 RSA No. 100568 of 2023 defendant No.21 - Nirmala and neither the plaintiff nor the defendant Nos.1 to 4 have any right over the said suit item No.2(f). The other properties being the joint family properties as contended by the plaintiff is admitted by defendant Nos.2 and 4.
5. Defendant No.3 is the contesting respondent filed written statement contending that suit schedule properties 2(a) to 2(c) and 2(e) to 2(i) are the joint family properties of the plaintiffs and defendants. Suit schedule 2(f) properties have been purchased out of joint family nucleus in the name of Nirmala, wife of defendant No.4.
Further, defendant No.3 separated from the father long back and out of his own earnings, he has purchased suit schedule 2(d) and neither the plaintiffs nor defendant Nos.1, 2 and 4 have contributed for purchase of the said property. Defendant No.3 contended that defendant Nos.1, 2 and 4 have no right or share in the suit item Nos.2(d) and sought to allot share in item Nos.2(a) to 2(c) and 2(e) to 2(i).
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6. The trial Court framed necessary issues and arrived at a conclusion that the plaintiff and defendants are the members of the joint family and further held that defendant Nos.2 to 4 and 21 have proved that the suit item No.2(f) property is the self acquired property of defendant No.21 - Nirmala wife of defendant No.4. Further, defendant No.3 has failed to prove that the suit item No.2(d) property is the self acquired property of defendant No.3.
7. The trial Court by the judgment and decree held that the plaintiff is entitled for 1/4th share in all the suit properties except suit item No.2(f) property which was held to be the exclusive property of defendant No.21 - Nirmala, wife of defendant No.4. Aggrieved, defendant No.3 preferred appeal before the First Appellate Court. The First appellate Court while re-appreciating and reconsidering the entire oral and documentary evidence concurred with the judgment and decree of the trial Court. Aggrieved, defendant No.3 is before this Court in this Regular Second Appeal.
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8. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. Perused the materials available on record.
9. Learned counsel for the respondents brings to the notice of this Court that FDP No.5/2018 preferred by the plaintiffs have been concluded on 31.07.2024 and the final decree has been drawn.
10. The Apex Court in the case of SHUB KARAN BUBNA @ SHUB KARAN PRASAD BUBNA VS. SITA SARAN BUBNA AND OTHERS1 has observed at paragraph No.18.3, 20, 21, 22, 31 as under:
18.3. As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit.
The suit continues to be pending until partition, that is, division by metes and bounds takes place by passing a final decree. An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh 1 (2009) 9 SCC 689 -9- NC: 2024:KHC-D:15336 RSA No. 100568 of 2023 relief (falling under Article 137 of the Limitation Act). It is only a reminder to the court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion.
20. On the other hand, in a partition suit the preliminary decrees only decide a part of the suit and therefore an application for passing a final decree is only an application in a pending suit, seeking further progress. In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court. In fact, several applications for final decree are permissible in a partition suit. A decree in a partition suit enures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree.
21. A preliminary decree for partition only identifies the properties to be subjected to partition, defines and declares the shares/rights of the parties. That part of the prayer relating to actual division by metes and bounds and allotment is left for being completed under the final decree proceedings. Thus the application for final decree as and when made is considered to be an
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NC: 2024:KHC-D:15336 RSA No. 100568 of 2023 application in a pending suit for granting the relief of division by metes and bounds.
22. Therefore, the concept of final decree in a partition suit is different from the concept of final decree in a mortgage suit. Consequently an application for a final decree in a mortgage suit is different from an application for final decree in partition suits.
Conclusion
31. Insofar as final decree proceedings are concerned, we see no reason for even legislative intervention. As the provisions of the Code stand at present, initiation of final decree proceedings does not depend upon an application for final decree for initiation (unless the local amendments require the same). As noticed above, the Code does not contemplate filing an application for final decree. Therefore, when a preliminary decree is passed in a partition suit, the proceedings should be continued by fixing dates for further proceedings till a final decree is passed. It is the duty and function of the court. Performance of such function does not require a reminder or nudge from the litigant. The mindset should be to expedite the process of dispute resolution."
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NC: 2024:KHC-D:15336 RSA No. 100568 of 2023
11. The Apex Court in the case of Kattukandi Edathil Krishnan and another Vs. Kattukandi Edathil Valsan and others2 while reiterating the observations made in the earlier ruling in Shub Karan Bubna (cited supra), has held down as follows:
"33. Final decree proceedings can be initiated at any point of time. There is no limitation for initiating final decree proceedings. Either of the parties to the suit can move an application for preparation of a final decree and, any of the defendants can also move application for the purpose. By mere passing of a preliminary decree the suit is not disposed of. (See : Shub Karan Bubna v. Sita Saran Bubna [Shub Karan Bubna v. Sita Saran Bubna, (2009) 9 SCC 689 :
(2009) 3 SCC (Civ) 820] ; Bimal
Kumar v. Shakuntala Debi [Bimal
Kumar v. Shakuntala Debi, (2012) 3 SCC 548 :
(2012) 2 SCC (Civ) 312] .)
34. Since there is no limitation for initiating final decree proceedings, the litigants tend to take their own sweet time for initiating final decree proceedings. In some States, the courts after passing a preliminary decree adjourn the suit sine 2 2022 SCC OnLine SC 737
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NC: 2024:KHC-D:15336 RSA No. 100568 of 2023 die with liberty to the parties for applying for final decree proceedings like the present case. In some other States, a fresh final decree proceedings have to be initiated under Order 20 Rule 18. However, this practice is to be discouraged as there is no point in declaring the rights of the parties in one proceedings and requiring initiation of separate proceedings for quantification and ascertainment of the relief. This will only delay the realisation of the fruits of the decree. This Court, in Shub Karan Bubna [Shub Karan Bubna v. Sita Saran Bubna, (2009) 9 SCC 689 : (2009) 3 SCC (Civ) 820] , had pointed out the defects in the procedure in this regard and suggested for appropriate amendment to CPC. The discussion of this Court is in paras 23 to 29 which are as under : (SCC pp. 698-700) "A suggestion for debate and legislative action
23. The century old civil procedure contemplates judgments, decrees, preliminary decrees and final decrees and execution of decrees. They provide for a "pause" between a decree and execution. A "pause" has also developed by practice between a preliminary decree and a final decree. The "pause" is to enable the defendant to voluntarily comply with the decree or declaration contained in the preliminary decree. The ground reality is that defendants normally do not comply with decrees
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NC: 2024:KHC-D:15336 RSA No. 100568 of 2023 without the pursuance of an execution. In very few cases the defendants in a partition suit voluntarily divide the property on the passing of a preliminary decree. In very few cases, defendants in money suits pay the decretal amount as per the decrees. Consequently, it is necessary to go to the second stage, that is, levy of execution, or applications for final decree followed by levy of execution in almost all cases.
24. A litigant coming to court seeking relief is not interested in receiving a paper decree when he succeeds in establishing his case. What he wants is relief. If it is a suit for money, he wants the money. If it is a suit for property, he wants the property. He naturally wonders why when he files a suit for recovery of money, he should first engage a lawyer and obtain a decree and then again engage a lawyer and execute the decree. Similarly, when he files a suit for partition, he wonders why he has to first secure a preliminary decree, then file an application and obtain a final decree and then file an execution to get the actual relief. The commonsensical query is : why not a continuous process? The litigant is perplexed as to why when a money decree is passed, the court does not fix the date for payment and if it is not paid, proceed with the execution; when a preliminary decree is passed in a partition suit, why the court does not forthwith fix a date for
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NC: 2024:KHC-D:15336 RSA No. 100568 of 2023 appointment of a Commissioner for division and make a final decree and deliver actual possession of his separated share. Why is it necessary for him to remind the court and approach the court at different stages?
25. Because of the artificial division of suits into preliminary decree proceedings, final decree proceedings and execution proceedings, many trial Judges tend to believe that adjudication of the right being the judicial function, they should concentrate on that part. Consequently, adequate importance is not given to the final decree proceedings and execution proceedings which are considered to be ministerial functions. The focus is on disposing of cases rather than ensuring that the litigant gets the relief. But the focus should not only be on early disposal of cases, but also on early and easy securement of relief for which the party approaches the court. Even among lawyers, importance is given only to securing of a decree, not securing of relief. Many lawyers handle suits only till preliminary decree is made, then hand it over to their juniors to conduct the final decree proceedings and then give it to their clerks for conducting the execution proceedings.
26. Many a time, a party exhausts his finances and energy by the time he secures the preliminary
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NC: 2024:KHC-D:15336 RSA No. 100568 of 2023 decree and has neither the capacity nor the energy to pursue the matter to get the final relief. As a consequence, we have found cases where a suit is decreed or a preliminary decree is granted within a year or two, the final decree proceeding and execution takes decades for completion. This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice system. Courts and lawyers should give as much importance to final decree proceedings and executions, as they give to the main suits.
27. In the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintiff will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore, to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant.
28. We hope that the Law Commission and Parliament will bestow their attention on this issue
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NC: 2024:KHC-D:15336 RSA No. 100568 of 2023 and make appropriate recommendations /amendments so that the suit will be a continuous process from the stage of its initiation to the stage of securing actual relief.
29. The present system involving a proceeding for declaration of the right, a separate proceeding for quantification or ascertainment of relief, and another separate proceeding for enforcement of the decree to secure the relief, is outmoded and unsuited for present requirements. If there is a practice of assigning separate numbers for final decree proceedings, that should be avoided. Issuing fresh notices to the defendants at each stage should also be avoided. The Civil Procedure Code should provide for a continuous and seamless process from the stage of filing of suit to the stage of getting relief."
The Apex Court in the decision stated supra has held that once a preliminary decree is passed by the Trial court, the court should proceed with the case for drawing final decree suo moto and that there is no need to file a separate final decree proceedings. Further, the trial courts were directed to list the matter for taking steps under Order XX Rule 18 of the CPC, soon after passing of the preliminary decree for partition and separate possession of the property suo moto
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NC: 2024:KHC-D:15336 RSA No. 100568 of 2023 and without requiring initiation of any separate proceedings.
From the decisions stated supra, it is clear that once the final decree is drawn, the Court suo moto shall take steps to draw the final decree in the absence of any stay against the preliminary decree. The preliminary decree has culminated into final decree in FDP No.5/2018.
The relationship between the parties is not in dispute.
It is also not in dispute that suit item Nos.2(a) to 2(c), 2(e) and 2(g) to 2(i) properties are the joint family properties of the plaintiffs and defendants.
The family genealogy is as under:
Shankrappa (defendant No.1) Gouravva (defendant No.2) Ishwarappa Manjappa Mahadevi (Deft. No.3) (Deft. No.4) (deft pltf)
12. Defendant No.3 set up a plea that suit 2(f) property is purchased in the name of defendant No.21 -
Nirmala wife of defendant No.4 out of the joint family funds
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NC: 2024:KHC-D:15336 RSA No. 100568 of 2023 and further that suit item No.2(d) property is purchased out of his own earnings. Ex.D5 is the sale deed which reveals that suit item No.2(f) property has been purchased by defendant No.21 by paying sale consideration of Rs.1,52,000/-.
13. Defendant No.3 who contended that the item No.2(f) is purchased out of the joint family funds, other than the mere assertion of defendant No.3, no materials are available on record to indicate that Shankarappa-defendant No.1 had contributed for the purchase of item No.2(f) or the nucleus of the family property was utilized to purchase item No.2(f) in the name of defendant No.21. In the absence of any material, the trial Court and the First Appellate Court were justified in holding that item Nos.2(f) property is the exclusive property of defendant No.21.
14. Insofar as Item No.2(d) of the suit property is concerned, it is the case of defendant No.3 that it is his self acquired property purchased out of his own income. No corroborative oral or documentary evidence is forthcoming
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NC: 2024:KHC-D:15336 RSA No. 100568 of 2023 to show that defendant No.3 had independent source of income to purchase item No.2(d). It is also relevant to state that the defendant No.3 is the eldest member of the family and the joint family had joint family property which is indicated at item Nos.2(a) to 2(c), 2(e) and 2(g) to 2(i) and had sufficient income to purchase item No.2(d) and the burden which was initially on the plaintiff has been discharged that the joint family possessed joint family properties and purchased item No.2(d) out of the income from the joint family property and the burden having discharged, the onus shifts on defendant No.3 to establish that the purchase of Item No.2(d) is out of the self-
acquisition. No materials are forthcoming to show any independent source of income of defendant No.3, in the said circumstances, the trial Court and the First Appellate Court rightly arrived at a conclusion that the plaintiff is entitled for 1/5th share in the suit Item No.2(a) to 2(e) and 2(g) to 2(i) and there is no perversity and illegality in the judgment and decree of the Courts below warranting any interference under Section 100 CPC and no substantial
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NC: 2024:KHC-D:15336 RSA No. 100568 of 2023 question of law arises for consideration in the present second appeal, accordingly this Court pass the following:
ORDER
(i) The regular second appeal is hereby dismissed.
(ii) The judgment and decree of the Courts below stand confirmed.
Pending interlocutory applications, if any, do not survive for consideration in light of the dismissal of the second appeal.
Sd/-
______________________ (JUSTICE K.S. HEMALEKHA) VNP - till para 6;
RH - from para 7;
LIST NO.: 2 SL NO.: 15