Karnataka High Court
Monappa Khachu Pawar vs Laxman Khachu Pawar on 20 January, 2024
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NC: 2024:KHC-D:1411
RSA No. 100668 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.100668/2014(PAR)
BETWEEN:
1. MONAPPA KHACHU PAWAR
SINCE DECEASED BY HIS LR'S.
1A. SMT. VANDANA W/O. MONAPPA PAWAR,
AGE: 54 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD,
R/O: H.NO.89, LAXMI GALLI,
SAVAGAON - 590 008,
TQ AND DIST: BELAGAVI.
1B. NARAYAN S/O. MONAPPA PAWAR,
AGE: 35 YEARS, OCC: SERVICE,
R/O: H.NO.89, LAXMI GALLI,
SAVAGAON - 590 008,
TQ AND DIST: BELAGAVI.
1C. MOHAN S/O. MONAPPA PAWAR,
AGE: 31 YEARS, OCC: AGRICULTURE,
Digitally
signed by R/O H.NO.89, LAXMI GALLI,
VINAYAKA SAVAGAON - 590 008,
BV TQ AND DIST: BELAGAVI.
1D. SMT. MINAKSHI W/O. MALLAPPA PATIL,
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O: H.NO.102, SHIVAJI GALLI,
JAFARWADI, POST: KODOLI - 591 143,
TQ AND DIST: BELAGAVI.
...APPELLANTS
(BY SRI RAMESH I. ZIRALI, ADVOCATE)
AND:
LAXMAN KHACHU PAWAR
SINCE DECEASED BY HIS LRS.
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RSA No. 100668 of 2014
1. SMT. PARVATIBAI W/O. LAXMAN PAWAR,
AGE: 76 YEARS, OCC: HOUSEHOLD,
R/O: SAVAGAON - 591 002,
TQ AND DIST: BELAGAVI.
2. TULASHIRAM LAXMAN PAWAR,
AGE: 51 YEARS, OCC: SUTAR(CARPENTER),
R/O: SAVAGAON - 591 002,
TQ AND DIST: BELAGAVI.
3. ASHOK LAXMAN PAWAR,
AGE: 41 YEARS, OCC: SUTAR (CARPENTER),
R/O: SAVAGAON - 591 002,
TQ AND DIST: BELAGAVI.
4. PARASHURAM LAXMAN PAWAR,
AGE: 38 YEARS, OCC: SUTAR (CARPENTER),
R/O: SAVAGAON - 591 002,
TQ AND DIST: BELAGAVI.
5. SMT. MALLAWWA
W/O KUSH @ KRISHNA ATIWADLKAR,
AGE: 36 YEARS, OCC: HOUSEHOLD,
R/O: 179, TAHASILDAR, BELAGAVI - 590001.
HANAMANT KACHU PAWAR
SINCE DECEASED BY HIS LR,
6. SMT. SHANTABAI
W/O. HANAMANT PAWAR,
AGE: 60 YEARS, OCC: HOUSEHOLD,
R/O: SAVAGAON - 591 002,
TQ AND DIST: BELAGAVI.
...RESPONDENTS
(BY SRI VITTAL S. TELI, ADVOCATE FPR R1 TO R5;
SRI SANTHOSH S. HATTIKATAGI, ADVOCATE FOR R6)
THIS REGULAR SECOND APPEAL IS FILED UNDER ORDER XLII
RULE 1 R/W. SECTION 100 OF CPC., 1908, AGAINST THE
JUDGEMENT AND DECREE
DTD: 01.07.2014 PASSED IN R.A.NO.283/2009 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACT COURT-II AND ADDITIONAL
DISTRICT JUDGE, BELAGAVI, DISMISSING THE APPEAL, FILED
AGAINST THE JUDGMENT AND DECREE DTD: 18.10.2003 AND THE
DECREE PASSED IN FDP.NO.19/1995 ON THE FILE OF THE III
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RSA No. 100668 of 2014
ADDITIONAL CIVIL JUDGE (JR.DN.) BELAGAVI, ALLOWING THE
PETITION FILED BY THE PETITIONERS.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular Second appeal is filed by the defendant No.2 (since deceased) in FDP No.19/1995 challenging the final decree dated 18.10.2003 passed therein by the III Additional Civil Judge (Jr. Dvn.), Belgaum (henceforth referred to as 'Final Decree Court') as well as the judgment and decree dated 01.07.2014 passed by the Fast Track Court - II and Additional District Judge, Belgaum (henceforth referred to as 'First Appellate Court') in R.A.No.283/2009, whereby the final decree passed by the Trial Court was upheld.
2. A final decree proceeding was initiated to execute the preliminary decree passed in O.S.No.985/1993. The Final Decree Court called for a report from the Tahsildar. Consequent thereto, a report was drawn and placed before the Final Decree Court, which was accepted and a final decree was ordered to be drawn as per the sketch. This order was challenged by the defendant No.2 before the First Appellate Court in R.A.No.283/2009 on the ground that he was unaware -4- NC: 2024:KHC-D:1411 RSA No. 100668 of 2014 of the final decree proceeding as the Advocate engaged by him had expired. He contended that the Final Decree Court appointed the Tahsildar as commissioner to effect partition of the suit lands and submit a report. The Tahsildar allegedly submitted a report along with a sketch prepared by the Taluka surveyor stating that as per the Watap-takta, the actual possession of the suit property was given to the plaintiff on 28.01.2003 and their names were entered in the revenue records. Later the plaintiffs filed a memo dated 10.10.2003 stating that they would not press for a final decree in report of the house. Consequently, the Final Decree Court allowed the petition and directed a final decree to be drawn. He contended that he was unaware of the survey and demarcation of the shares as no notice was issued to him. He also contended that no notice of survey was issued to him. The First Appellate Court perused the records of the Final Decree Court in FDP No.19/1995 and held that the defendant No.2 had engaged an Advocate, who had filed objections before the Tahsildar on 22.10.2002, which was countersigned by the defendant No.2. It also found that the defendant No.2 had received notice issued by the Tahsildar and that he had filed objections to the -5- NC: 2024:KHC-D:1411 RSA No. 100668 of 2014 said notice. It also noticed that the defendant No.2 was present on 06.09.2002, 19.02.2002 and 26.10.2002 when the survey was conducted to demarcate the shares. Therefore, the First Appellate Court held that the contention of the defendant No.2 that he was not issued with any notice of the proceedings, was unjustified. It also noticed that the defendant No.2 had filed an application to recall the judgment and decree passed in O.S.No.985/1993 and the said application was also dismissed for non-prosecution. It held that the Final Decree Court had sent the file to the Revenue Department for effecting partition in respect of the agricultural properties and after obtaining a report, the same was accepted. It therefore, held that in the absence of any hardship to the defendant No.2, he was not entitled to question the final decree proceedings and consequently, dismissed the appeal.
3. Being aggrieved by the same, the defendant No.2 has filed this Regular Second Appeal.
4. During the pendency of this appeal, the appellant/defendant No.2 died and his legal representatives are brought on record.
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5. The learned counsel for the legal representatives of deceased - defendant No.2 for the first time contended before this Court that under Section 54 of CPC, the division has to be effected by the Court and not by any revenue official and therefore, the memo filed by the plaintiffs dated 10.10.2003 that the possession was handed over by the Tahsildar, is an abuse of process of law. He submits that if a thing has to be done in particular manner as prescribed in law, it has to be done in that manner alone or not at all. He contended that the Final Decree Court therefore, could not have allowed the possession of the property to be delivered by the revenue officer.
6. The learned counsel for the plaintiffs on the other hand contended that an amendment is introduced by the Karnataka State to Section 54 of CPC, which provides that the partition of the estate shall be effected by the Court after obtaining a report of a revenue officer, not below the rank of Tahsildar or such other person as the Court may appoint as Commissioner. He submitted that the question raised by the defendant No.2 in this appeal is raised for the first time and no such contention was either raised before the Final Decree Court -7- NC: 2024:KHC-D:1411 RSA No. 100668 of 2014 or before the First Appellate Court. He contends that division was based on the report of the Assistant Director of Land Records (henceforth referred to as 'ADLR'), who also is of the rank of the Tahsildar and possession of the property was handed over based on a sketch that was accepted by the Court. He therefore, submits that there is no error warranting interference of this Court.
7. I have considered the submissions made by the learned counsel for the legal representatives of deceased - defendant No.2 and the learned counsel for the plaintiffs.
8. As rightly contended by the learned counsel for the plaintiffs, the defendant No.2 did not raise above contention before the Final Decree Court or before the First Appellate Court. Be that as it may, since the defendant No.2 has raised a question of some relevance, the same needs to be considered.
9. A perusal of records of the Final Decree Court would indicate that the Final Decree Court had sought for a report from the Tahsildar regarding partition of the suit properties in accordance with the preliminary decree. On the request of the Tahsildar, the ADLR had prepared a sketch of the suit property and divided it as per the preliminary decree that was passed in -8- NC: 2024:KHC-D:1411 RSA No. 100668 of 2014 O.S.No.985/1993. The defendant No.2 appeared before the Tahsildar on 06.09.2002, 19.02.2002, 26.10.2002 and based on the sketch submitted by the ADLR, the Tahsildar submitted a report before the Final Decree Court. The contention of the defendant No.2 could have been accepted, if the report itself was submitted by an officer who was not the Tahsildar. The Tahsildar did not delegate his responsibility to any other officer but sought assistance from the department of survey to draw up a sketch to scale, partitioning the properties. What is contemplated under Section 54 of CPC is a report of a revenue officer not below the rank of Tahsildar and to prepare such a report, the Tahsildar can obtain inputs from various sources. Therefore, the contention of the defendant No.2 that Tahsildar had sub-delegated his duty to ADLR and that ADLR had in turn sub-delegated his duties to the surveyor, is of no consequence. Under the circumstances, unless it is pointed out by the defendant No.2 that the Final Decree drawn did not correspond to the shares declared in O.S.No.985/1993, the defendant No.2 cannot assail the correctness of the division effected by the Final Decree Court.
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10. In that view of the matter, no question of law arises for consideration in this appeal warranting interference. Consequently, this appeal lacks merit and is dismissed.
11. In view of dismissal of the appeal, pending I.As., if any, do not survive for consideration and the same stand dismissed.
SD/-
JUDGE PMR List No.: 1 Sl No.: 0 CT-ASC