Karnataka High Court
Shri. Prakash S/O. Basavaprabhu ... vs Smt. Shalini W/O. Mallikarjun Chinivar on 6 November, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC-D:12929-DB
RFA No. 100432 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100432 OF 2023 (FDP)
BETWEEN:
SHRI. PRAKASH S/O. BASAVAPRABHUCHARATE
AGE: 69 YEARS, OCC: RTD.,
R/O: "PRATIKSHANILAYA", PROFESSORS COLLONY,
VIDYA NAGAR, BAILHONGAL.
...APPELLANT
(BY SRI. SHIVRAJ S. BALLOLLI, ADVOCATE)
AND:
1. SMT. SHALINI W/O. MALLIKARJUNCHINIVAR
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
R/O: CCB NO. 21, BASAVA COLONY,
BELAGAVI, DIST: BELAGAVI- 590010.
2. SMT. SUNITA W/O. SANGEMESHAJJAMPURSHETTRU
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
Digitally signed by K
M SOMASHEKAR
R/O: DOOR NO. 635, P.J. EXTENSION,
Location: HIGH
COURT OF 7TH MAIN, 7TH CROSS, DAVANGERE,
KARNATAKA
DHARWAD BENCH
Date: 2023.11.07
DIST: DAVANAGERE-577002.
10:46:32 +0530
3. SMT. ROOPA W/O. SHANKAR NADENNAVAR
AGE: 47 YEARS, OCC: HOUSEHOLD WORK,
R/O: P.NO. 47 MAHABALESHWAR NAGAR,
BELAGAVI, DIST: BELAGAVI-591108.
...RESPONDENTS
(BY SRI. MRUTYUNJAYA TATA BANGI, ADVOCATE FOR C/R1 AND R3)
THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER
XLI RULE 1 OF CPC., 1908, PRAYING TO, SET ASIDE THE IMPUGNED
JUDGMENT AND DECREE DATED 11.07.2023 PASSED IN FDP
NO.10/2021, BY THE LEARNED SENIOR CIVIL JUDGE, HUKKERI;
PASS ANY SUCH OTHER ORDER AS DEEMED FIT BY THIS HONBLE
COURT.
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NC: 2023:KHC-D:12929-DB
RFA No. 100432 of 2023
THIS RFA, COMING ON FOR ADMISSION, THIS DAY,
H.P. SANDESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned counsel appearing for the appellant and learned counsel appearing for respondents No.1 and 3.
2. This appeal is filed challenging the judgment and decree passed in FDP No.10/2021, wherein the trial Court having considered the Commissioner's report, allowed the final decree proceedings filed under Order XX Rule 18 of Code of Civil Procedure in respect of Schedule 'A' and 'B' properties and partitioned by allotting 1/4th share each to the petitioners as per the Court Commissioner's report.
3. The main contention of the learned counsel appearing for the appellant before this Court is that before conducting the inspection of the property, no notice was given to him. It is also his contention that the ADLR, Hukkeri is appointed as Commissioner, but he has -3- NC: 2023:KHC-D:12929-DB RFA No. 100432 of 2023 delegated powers to ADLR, Chikodi. In spite of it, the trial Court has committed an error in allowing the final decree petition.
4. Learned counsel appearing for respondents No.1 and 3 would contend that the respondents are the sisters and there is no dispute with regard to the relationship between the parties. The counsel also submits that even the preliminary decree passed by the trial Court was confirmed by the Apex Court and the appellant cannot raise technicalities. He also contends that no prejudice is caused to him and the Commissioner conducted the spot inspection and given report and the report has been accepted by the trial Court.
5. Having heard the appellant's counsel and counsel appearing for the respondents and in view of the contention of the appellant's counsel that no notice was served, CW.1 and CW.2 were examined before the trial Court and they have categorically stated that they have issued notice but acknowledgment was not returned and -4- NC: 2023:KHC-D:12929-DB RFA No. 100432 of 2023 notice was sent through a registered post and though the acknowledgment is not produced, the very specific evidence before the trial Court is that even the appellant was present at the time of conducting the spot inspection, but he has refused to affix his signature and the same is taken note of by the trial Court in paragraph No.13 of the judgment. The trial Court has also taken note of the evidence of CW.2 in paragraph No.14. CW.2 also reiterates issuance of notice through a registered post and in paragraph No.15.
6. He also submits that the trial Court has taken note of the very contention with regard to conducting of spot inspection and carrying out of commission work. Though the ADLR, Chikodi has conducted the commission work, the same is also taken note of by the trial Court by observing that he is also a competent person to conduct the inspection and the trial Court also observed that the very ADLR of Chikodi and ADLR of Hukkeri both are -5- NC: 2023:KHC-D:12929-DB RFA No. 100432 of 2023 competent persons to divide the suit schedule property and the same is also drawn as per the preliminary decree.
7. Having perused the grounds urged in the appeal, the main contention is only on technicalities and no substantive ground is raised before the Court on the ground that prejudice is caused in conducting the spot inspection and the survey. No such contention is taken and the counsel for the appellant mainly relies upon the very contention of not issuing notice and also conducting of commissioner work by the ADLR of Chikodi. These contentions cannot be accepted and the Court has to see the substantive justice and not on technicalities and hence we do not find any error committed by the trial Court in partitioning the suit schedule property and the same is based on the Court Commissioner's report and the Court Commissioner is also a competent person who has conducted the spot inspection.
8. It is also relevant to note that notice was also given. Though acknowledgment is not produced, CW.1 and -6- NC: 2023:KHC-D:12929-DB RFA No. 100432 of 2023 CW.2 have categorically reiterated that notice was issued that too through a registered post and hence we do not find any force in the contention of the appellant's counsel. Hence, the appeal is dismissed.
Sd JUDGE Sd JUDGE SH List No.: 1 Sl No.: 30