Karnataka High Court
Smt. C Gayathramma vs N.R.Bhadrachalam on 7 March, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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WP No. 47879 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 47879 OF 2017 (GM-CPC)
BETWEEN:
1. SMT. C GAYATHRAMMA,
AGED ABOUT 53 YEARS,
W/O LATE GAVIRANGASWAMY
2. SRI G. R. SANDEEP,
AGED ABOUT 28 YEARS,
S/O LATE GAVIRANGASWAMY
3. KUM. SHUSHMA G. R.
AGED ABOUT 25 YEARS
D/O LATE GAVIRANGASWAMY
Digitally signed by
NARASIMHA
ALL ARE RESIDING AT
MURTHY
VANAMALA NO.271, 6TH BLOCK,
Location: HIGH
COURT OF
7TH CROSS, 2ND STAGE,
KARNATAKA
NAGARABHAVI, BENGALURU - 560 072.
...PETITIONERS
(BY SMT. LATHA S SHETTY, ADVOCATE)
AND:
N. R. BHADRACHALAM,
S/O LATE RAJAPPA,
AGED 56 YEARS,
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WP No. 47879 of 2017
RESIDING AT NO.3362,
13TH CROSS, 2ND MAIN ROAD,
SHASTRINAGAR, NEW K.R.ROAD
BENGALORE-560 028
...RESPONDENT
(BY SRI. M. ARUN PONAPPA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ACCEPTANCE OF COMMISSIONER'S
REPORT IN ORDER DATED 17.7.2017 MADE IN FDP
CASE NO. 208/2011 PASSED BY THE LEARNED
PRINCIPAL CITY CIVIL JUDGE AT BENGALURU
(ANNEXURE-A). QUASH THE COURT COMMISSIONER
REPORT DATED 26.10.2016 AND SKETCH DATED
03.10.2016 FILED IN FDP CASE NO.208/2011 ON THE
FILE OF THE LEARNED PRINCIPAL CITY CIVIL JUDGE
AT BENGALURU (ANNEXURE-B AND B1).
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN "B" GROUP, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
The petitioners, who are the legal heirs of Sri. Gavirangaswamy, the original defendant in O.S.No.7482/2008, are aggrieved by the order dated 17.07.2017 in the final decree proceedings in F.D.P.No.208/2011 on the file of the XXXVIII Additional City Civil and Sessions Judge, Bengaluru City (for short, 'the civil Court').
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2. The civil Court by this order has allowed the respondent's application under Order XX Rule 18 of the Code of Civil Procedure, 1906 (for short, 'CPC') with directions to its office to draw final decree in terms of the Commissioner's report according to the preliminary decree in O.S.No.7482/2008 collecting requisite stamp duty. Smt. Latha S. Shetty and Sri. M.Arun Ponappa, the learned counsels for the parties, are heard and the records perused.
3. The respondent's suit in O.S.No.7482/2008 against Sri. Gavirangaswamy for partition is decreed on 20.08.2011, and this judgment and decree is carried in appeal before this Court in R.F.A.No.1829/2011. This Court has disposed of the appeal observing that the respondent and Sri. Gavirangaswamy have jointly acquired the subject property and the respondent is entitled to half a portion while Sri. Gavirangaswamy would be entitled to the other half a portion. It is after this -4- WP No. 47879 of 2017 Court's judgment in the aforesaid appeal, the respondent has commenced final decree proceedings in F.D.P.No.208/2011. In the final decree proceedings, a Court Commissioner is appointed, who has visited the property and filed his report. The civil Court has accepted the Commissioner's report in the light of the preliminary decree observing that this Court's observation in R.F.A.No.1829/2011 has not been called in question.
4. It is undisputed that the subject property measures 30 ft: North to South and 40 ft: East to West, and the Eastern portion is built up and is in the occupation of the petitioners who have succeeded to Sri Gavirangaswamy's interest. The Commissioner has filed his report, on visiting the property, proposing division into two halves i.e., Eastern and Western halves with a common passage measuring 1.5 meters on the Northern side. This larger property is bounded on the West by road.
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5. The petitioners' grievance with the Commissioner's report and therefore, the impugned order for drawing decree in terms thereof is on grounds such as, the Commissioner has filed a report without visiting the property and without drawing mahazar. However, if the material facts such as, the dimension of the property and location are undisputed, this Court cannot opine that the petitioners must succeed on grounds such as, report is filed without visiting the property or without proper mahazar being drawn. The grounds urged would seem rather lame in the facts and circumstances of the case.
6. At this stage, the learned counsel for the petitioners, while drawing this Court's attention to the failed mediation efforts, submits that there could be another effort for settlement given the relationship of the parties, and the parties could agree upon dividing the property vertically into two halves as -6- WP No. 47879 of 2017 against a horizontal division that is proposed by the Commissioner. It is undisputed that because of the pendency of the present petition, the decree is not yet drawn and registered, and possession is also not yet delivered to the respondent. If the petitioners could pursue a settlement with the respondent, they could always pursue such settlement but there is no reason for this petition to survive. Hence, the petition stands disposed of without interfering with the impugned order.
SD/-
JUDGE RB