Karnataka High Court
Shri Bhaskar Dattobrao Deshpande vs Shri Vasudevarao on 6 March, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6 t h DAY OF MARCH, 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
REGULAR SECOND APPEAL No.5192/2008 (DEC. & INJ.)
BETWEEN:
Shri. Bhaskar Dattobrao De shpande
Rept. By GPA Holder Smt. S. D. Deshpande
Age: 64 years, Occ: Pensioner
R/o. Deshpande Galli Shukrawar Peth
Dharwad
Since deceased by legal representatives.
1A. Laxmibai
W/o. Bhaskar Rao Deshpande
Age: 58 years, Occ: Household work
1B. Vinayak
S/o. Bhaskar Rao Deshpande
Age: 26 years, Occ: Business
1C. Seetabai
D/o. Dattatraya De shpande
Age: 68 years, Occ: Household work
All are R/o. C/o. V. B. Deshpande
Shukrawarpeth, Deshpande Galli
Dharwad.
... APPELLANTS
(By Sri.Mahesh Wodeyar, Advocate)
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AND:
1. Shri. Vasudevarao
S/o. Ramarao Deshpande
Age: Major, Occ: Pensioner
2. Rajeev, S/o. Vasudevarao Deshpande
Age: Major, Occ: Business
Both R/o. Rama Nivas Narayanpur Dharwad
... RESPONDENTS
(By Sri. Srikant T. Patil, Advocate)
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THIS APPEAL IS FILED UNDER SECTION 100 OF
CPC AGAINST THE JUDMENT AND DECREE DATED
24.07.2008 PASSED IN R.A.NO.89/2002 ON THE
FILE OF THE II ADDL. CIVIL JUDGE (SR.DN.),
DHARWAD DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
1.1.2002 PASSED IN OS.NO.380/1996 ON THE FILE
OF THE I ADDL. CIVIL JDUGE (JR.DN.), DHARWAD.
THIS APPEAL COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Concurrent findings of an original suit bearing O.S.No.380/1996, which was pending on the file of the I Addl. Civil Judge (Jr.Dn.), Dharwad and Regular Appeal No.89/2002, which was pending on the file of 3 the II Addl. Civil Judge (Sr.Dn.), Dharwad, are called in question before this Court under Section 100 of CPC.
2. Appellant herein was the plaintiff in the said suit bearing O.S.No.380/1996. Respondents herein were the defendants in the said suit.
3. Suit had been filed for the reliefs of declaration of title and permanent injunction in respect of the properties as described in the schedule appended to the plaint. Suit had been filed in respect of 4.19 aces of land in block No.20 carved out of survey No.21 situated in Sannasomapur village, Dharwad taluk.
4. The case of the plaintiff as put forth before the trial Court is that, he has been allotted schedule property as a share pursuant to a compromise entered into in an original suit which was pending on the file of the Civil Judge Court at Dharwad, vide 4 Special suit No.23/1949. Allotment of share pursuant to compromise entered into in the said suit is not seriously disputed by the defendants. What is disputed by the defendants is that, the said decree has not been acted upon by filing necessary final decree proceedings and that the share so allotted has not been actually demarcated by metes and bounds. The said contention has been accepted by the trial Court. Consequently, the suit in O.S.No.38/1996 was dismissed.
5. Against the said judgment and decree, an appeal was filed in R.A.No.89/2002 before the Court of II Addl. Senior Civil Judge, Dharwad. The said appeal has also been dismissed by a considered judgment dated 24.07.2008. It is these concurrent findings, which are called in question on various grounds.
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6. In a suit for partition and separate possession, preliminary decree will be passed by the Court declaring the shares of the parties. The shares so allotted in the preliminary decree will have to be worked out by filing necessary Final Decree Proceedings as contemplated under Section 54 of CPC, if they are assessed to land revenue or Order 20 Rule 18 of CPC, if they are properties that are not assessed to land revenue.
7. The decree passed in a suit for partition and possession becomes final only when the final decree is engrossed on stamp paper. Till such time, there will be no finality to the said partition decrees.
8. What is submitted by the learned Counsel for the appellants is that, his parties may be permitted to work out remedies in accordance with law pursuant to the share allotted in the compromise decree. He has submitted that, there is no limitation 6 to file a final decree petition arising out of a suit for partition and separate possession. If there is scope for his parties, i.e., appellants to workout their remedy, the Court need not give any liberty as such.
9. Learned Counsel for the respondents submits that, a suit has already been filed in O.S.No.12/2004 before the Court of III Addl. Senior Civil Judge, Dharwad and it is pending. What is the effect of such suit in the light of a decree already granted in 1949 could be considered by the Court in which O.S.No.12/2004 is pending.
10. Suffice to state that, if the appellants are ready to get their share demarcated per Section 54 of CPC and if limitation is not applicable, they are at liberty to do so. With these observations, the appeal will have to be dismissed.
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ORDER Appeal filed under Section 100 of CPC is dismissed by holding the judgment of the trial Court as well as the First Appellate Court. Notwithstanding the dismissal of the appeal, the plaintiffs are at liberty to pursue their remedy by filing necessary FDP as contemplated under Section 56 of CPC, if they are of the opinion that no limitation is applicable and preliminary decree has remained intact for all practical purposes and till the same is finalised by means of final decree being engrossed on stamp paper.
Anyhow, the observation made by this Court will not come in the way of the III Additional Senior Civil Judge Court, Dharwad dealing with O.S.No.12/2004.
There is no order as to costs.
Sd/-
JUDGE gab/-