Karnataka High Court
Sri K S Ashokappa vs Sri Shivalingappa Died By Lrs on 7 December, 2020
Author: R Devdas
Bench: R Devdas
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF DECEMBER, 2020
BEFORE
THE HON' BLE MR.JUSTICE R DEVDAS
R.S.A. NO.2173 OF 2018 (PAR)
BETWEEN
SRI K S ASHOKAPPA
S/O SHIVALINGAPPA
MAJOR, AGRICULTURIST
R/O GARAGA VILLAGE
CHANNAGIRI TQ 577213.
...APPELLANT
(BY SMT SARITHA KULKARNI, ADVOCATE)
AND
1. SRI SHIVALINGAPPA DIED BY LRS
SHANKUNTALA, W/O SANGAPPA
MAJOR
R/O D B HALLI VILAGE,
KALLIHAL POST
BHADRAVATHI TQ., 577301
2. ANASUYA
W/O NINGAPPA
MAJOR
R/O JAMAPURA VILLAGE,
MEDUGONDANAHALLI POST
CHANNAGIRI TQ.,-577213
3. JAYAMMA
W/O SHANKRAPPA
MAJOR
R/O AGARABANNIHATTI VILLAGE,
CHANNAGIRI TQ-577213
4. KOMALA
W/O ASHOKAPPA
MAJOR
2
R/O BALEKOPPA ROAD,
SHIMOGA TQ-577201
5. YASHODAMMA
W/O SHANKARAPPA
MAJOR
R/O RAMAGATTA VILLAGE,
HOLALKERE TQ
CHITRADURGA DIST-577501
6. DRAKSHAYANI
W/O MAHANTESHAPPA
MAJOR
R/O CHIKKAKANDAVADI VILLAGE,
HOLALKERE TQ
CHITRADURGA DIST-577501
7. BHARATHI
W/O INDUDARA
MAJOR
R/O GULLALI VILLAGE,
CHANNAGIRI TQ-577213
8. SRI CHANNABASAPPA
S/O SHIVALINGAPPA
AGED ABOUT 49 YEARS,
OCC:AGRICULTURIST
R/O GARAGA VILLAGE,
CHANNAGIRI TQ-577213
9. SRI JAGADISH
S/O SHIVALINGAPPA
AGED ABOUT 45 YEARS
OCC:AGRICULTURIST
R/O GARGA VILLAGE,
CHANNAGIRI TALUK -577213
10 . KUMARI KUSUMA
W/O GIRISH
MAJOR
R/O GANGAGONDANAHALLI
TAVARAKERE POST
CHANNAGIRI TQ-577213
...RESPONDENTS
(BY SRI R PRAMOD, ADVOCATE FOR R1 TO R10 )
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THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE ORDER DATED 06.09.2018 PASSED ON IA IN
RA.NO.24/2017, ON THE FILE THE SENIOR CIVIL JUDGE
AND JMFC., CHANNAGIRI, REJECTING THE IA UNDER
ORDER 41 RULE 3[A] R/W SEC.5 OF THE LIMITATION ACT &
HOLDING THAT THE APPEAL DOES NOT SURVIVE FOR
CONSIDERATION FILED AGAINST THE ORDER DATED
31.01.2012 PASSED IN FDP NO.6/2009 ON THE FILE OF THE
PRL.CIVIL [JR.DIV] CHANNAGIRI.
THIS RSA IS COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
R. DEVDAS J., (ORAL):
The appellants and respondents are brothers and sisters, being born to late Sri. Shivalingappa and Smt. Parvathamma. A suit in O.S.No.81/2005 was filed by the appellant herein seeking a decree of partition and separate possession. A preliminary decree was passed on 01.04.2008. The Final Decree Proceedings in FDP No.6/2009 was drawn on 31.01.2012. However, it is the contention of the appellant that he was not aware about the FDP proceedings and the proposal of allotment of shares made by the Court Commissioner. It is therefore the contention of the appellant that the allotment of 4 shares in terms of the report submitted by the Court Commissioner has been made without the knowledge of the appellant herein. It is submitted that during the 2nd week of November, 2017 while demarcation in terms of the final decree was undertaken by the respondents, the appellant herein came to know about the final decree drawn by the Civil Court in FDP No.6/2009. The appellant immediately applied for certified copies of the FDP proceedings and came to know that he was allotted 39 guntas of land in item No.1 of the schedule property bearing Sy.No.155/1 where there is dry bore well and there is no areca trees existing.
2. The appellant immediately filed R.A.No.24/2017 challenging the FDP proceedings along with an application seeking condonation of delay. The First Appellate Court rejected the application for condonation of delay and consequently dismissed R.A.No.24/2017. 5
3. During the course of these proceedings, since it was submitted at the hands of the respondents that no injustice was meted out to the appellant, nevertheless, therefore both the learned counsels, on instructions from their respective clients agreed for a fresh survey and report to be submitted at the hands of the Assistant Director of Land Records (ADLR). Consequently, this Court, directed the ADLR to conduct a survey in the presence of the parties and in terms of the memorandum of instructions filed by the learned counsels for both the parties.
4. The ADLR conducted a survey in the presence of the parties on 24.06.2020 and has submitted a report along with a sketch.
5. Learned counsel for the appellant submits that as could be seen from the report of the ADLR, the division suggested by the Court Commissioner during the FDP proceedings could not be adhered to since it was found that such a division would not 6 enure to the benefits of any of the parties. Therefore, the parties by consent have divided the property as shown in the survey sketch filed by the ADLR. It is submitted that in terms of the said report it could be seen that the area for residential property has been divided in a manner so as to have a road on the extreme west side of the residential property. Towards the eastern side of the property equal divisions in 12 parts have been made so that all the 12 parties could get a portion which could be utilized for construction of houses with the road falling on the western side.
6. Learned counsel for the appellant submits that the only contention that remains to be decided in this appeal is the house constructed by the appellant herein in Block No.1. The learned counsel for the appellant submits that the house was put up by the appellant during the year 2004 and subsequently in the year 2006 the house has been renovated once again. It is submitted that the appellant also has 7 relevant document such as water bill and electricity bill to show that the appellant has been residing in the house in Block No.1. The learned counsel therefore submits that it would be fair on the part of the respondents to admit the fact that the appellant had put up the construction and therefore he should be permitted to choose Block No.1 along with the house which has been constructed and the issue could be resolved.
7. Per contra, learned counsel Sri R.Pramod, appearing for the respondents would submit that there is nothing on record to show that the appellant had put up the construction in Block No.1. The learned counsel submits that the respondents have informed him that the construction was put up during the times of the father of the parties herein. It is also submitted that all the respondents have agreed that Bock No.1 along with the house should be given to the Smt. Komala, respondent No.4 who is the widowed sister.
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8. Heard the learned counsels and perused the appeal memo and the report submitted by the ADLR before this Court.
9. As could be seen from the report, the ADLR has clearly stated that the portion marked in orange colour in Block No.1 is identified as a house with Mangalore tiles and sheets belongs to the appellant herein. This court has also found out through the learned counsels that the appellant was earlier residing in his in-laws house and other than the house in Block No.1, the appellant does not have any other house.
10. Learned counsel for the respondents submitted that the widowed sister Smt. Komala has been residing with the brothers after the demise of her husband. It is submitted that respondent No.4 also has children to take care of. However, when it is an admitted fact that the appellant has put up the construction or atleast has been residing in the house constructed in Block No.1, it would not be 9 right to ask the appellant to move out of the house and make way for respondent No.4-widowed sister. Moreover the learned counsel for the appellant has submitted that in item No.1 of the schedule property bearing Sy.No.155/1, where 39 guntas was allotted to the appellant, there could be a loan raised by any of the respondents and the appellant comes forward to share the burden of sharing such loan. This Court is required to look into the equities while the property is being divided between the parties. This Court is convinced that the factum of the appellant residing in the house put up in Block No.1 cannot be disputed in view of the report submitted by the ADLR. The respondents have also not come forward to place any material to show that the house was constructed by any of the respondents.
11. In view of the above, this Court deems it appropriate to allow the appeal in part. Since the parties have amicably settled the dispute regarding the division and allotment of the agricultural 10 properties, the division and allotment of the house properties or sites which is the only issue that remains to be considered, is decided by allotting the Block No.1 in terms of the survey sketch submitted by the ADLR. Block No.1 consists of a house with Mangalore tiles and sheets. Therefore, the said Block No.1 along with the house shall be allotted in favour of the appellant herein. With this the decree drawn in the FDP No.6/2009 also stands modified. The parties are permitted to get the respective kathas effected in terms of the allotment of shares as shown in the survey sketch submitted by the ADLR.
Ordered accordingly.
Sd/-
JUDGE KLY/