Karnataka High Court
Shri Appasaheb S/O. Babu Hanchanale vs Smt Mangal Wd/O Sadashiv Hanchanale on 23 July, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2024:KHC-D:10265-DB
RFA No. 100150 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO. 100150 OF 2024 (FDP)
BETWEEN:
1. SHRI. APPASAB
S/O. BABU HANCHANALE
AGE. 74 YEARS, OCC. AGRICULTURE,
R/O. HOUSE TPC NO.3829 OF
SADALAGA VILLAGE,
TAL. CHIKODI, DIST. BELAGAVI-591201.
SHRI. SADASHIV
S/O. BABU HANCHANALE
SINCE DECEASED BY HIS LRS
Digitally signed
by GIRIJA A SHRI. KIRAN
BYAHATTI
Location:
2. S/O. SADASHIV HANCHANALE,
HIGH COURT
OF AGE. 38 YEARS, OCC. AGRICULTURE,
KARNATAKA
R/O. SADALAGA VILLAGE,
TAL. CHIKODI, DIST. BELAGAVI-591201.
3. SHRI. SANDEEP
S/O. SADASHIV HANCHANALE
AGE. 34 YEARS, OCC. AGRICULTURE,
R/O. SADALAGA VILLAGE,
TAL. CHIKODI, DIST. BELAGAVI-591201.
...APPELLANTS
(BY SRI. SANGRAM S. KULKARNI, ADVOCATE)
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NC: 2024:KHC-D:10265-DB
RFA No. 100150 of 2024
AND:
1. SMT. MANGAL
WD/O. SADASHIV HANCHANALE
SINCE DECEASED REPRESENTED BY LRS
AS APPELLANTS NO. 1 AND 2.
2. SHRI. YASHWANT S/O. KALLAPPA
HANCHANALE,
AGE. 68 YEARS, OCC. AGRICULTURE,
R/O. HOUSE TPC NO.3847 OF SADALAGA,
TAL. CHIKODI, DIST. BELAGAVI-591201.
3. SHRI. MAHADEV
S/O. KALLAPPA HANCHANALE,
AGE. 66 YEARS, OCC. AGRICULTURE,
R/O. HOUSE TPC NO.3847 OF SADALAGA,
TAL. CHIKODI, DIST. BELAGAVI-591201
4. SHRI. MAHARUDRA
S/O. KALLAPPA HANCHANALE,
AGE. 62 YEARS, OCC. AGRICULTURE,
R/O. HOUSE TPC NO.3847 OF SADALAGA,
TAL. CHIKODI, DIST. BELAGAVI-591201.
5. SHRI. SURESH
S/O. KALLAPPA HANCHANALE,
AGE. 55 YEARS, OCC. AGRICULTURE,
R/O. HOUSE TPC NO.3847 OF SADALAGA,
TAL. CHIKODI, DIST. BELAGAVI-591201.
6. SHRI. DEELIP S/O. KALLAPPA HANCHANALE,
AGE. 48 YEARS, OCC. AGRICULTURE,
R/O. HOUSE TPC NO.3847 OF SADALAGA,
TAL. CHIKODI, DIST. BELAGAVI-591201.
7. SMT. LEELAWATI W/O. BHIMAGOUDA PATIL,
AGE. 57 YEARS, OCC. AGRICULTURE,
R/O. HOUSE VPC NO.1150 OF KERUR,
TAL. CHIKODI, DIST. BELAGAVI-591201.
8. SMT. LALITA W/O. SUBHASH JEGOJE,
AGE. 46 YEARS, OCC. AGRICULTURE,
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NC: 2024:KHC-D:10265-DB
RFA No. 100150 of 2024
R/O. ANKALI, TAL. CHIKODI,
NOW RESIDING AT TPC NO.3847 OF
SADALAGA VILLAGE,
TAL. CHIKODI, DIST. BELAGAVI-591201.
MALLAPPA S/O. SHIVAPPA HANCHANALE
SINCE DECEASED BY HIS LRS
12 . SHRI. SUBHASH
S/O. SHIVABAL HANCHANALE,
AGE. 56 YEARS, OCC. AGRICULTURE,
R/O. TPC NO.3847/A OF
SADALAGA VILLAGE,
TAL. CHIKODI, DIST. BELAGAVI-591201.
13 . SMT. PHULABAI W/O. SHIVAPPA AMTE,
AGE. 68 YEARS, OCC. AGRICULTURE,
R/O. FARM HOUSE IN
R.S. NO.522/6 OF SIDDAPURWADI,
TAL. CHIKODI, DIST. BELAGAVI-591201.
14 . SMT. SUSHILA KAKASAB KHOT,
AGE. 58 YEARS, OCC. AGRICULTURE,
R/O. FARM HOUSE IN
R.S. NO.313/2 OF YADYANWADI,
TAL. CHIKODI, DIST. BELAGAVI-591201.
... RESPONDENTS
(BY SRI. RAVI S. BALIKAI, ADVOCATE FOR R2 TO R11;
R1 DECEASED- APPELLANT NO. 1 AND 2 LRS.)
THIS REGULAR FIRST APPEAL FILED UNDER ORDER 41
RULE 1 AND 2 R/W SECTION 96 OF CPC., PRAYING TO, ALLOW
THE TOP NOTED APPEAL AND SET ASIDE THE ORDER DATED
16.12.2023 PASSED IN FDP NO.3/2012 BY THE COURT OF
PRINCIPAL SENIOR CIVIL JUDGE, CHIKKODI, IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 15/07/2024 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY,
T.G.SHIVASHANKARE GOWDA J., PRONOUNCED THE
FOLLOWING:
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NC: 2024:KHC-D:10265-DB
RFA No. 100150 of 2024
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
And
HON'BLE MR.JUSTICE T. G. SHIVASHANKARE GOWDA
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA) In this appeal, the defendant Nos.1, 2(a) and (b) have challenged the order dated 16.12.2023 passed in F.D.P.No.3/2012 by the Prl. Senior Civil Judge, Chikkodi (for short, 'FDP Court').
2. The appellants were the defendant No.1 and legal representatives of the deceased defendant No.2. The respondent No.1 is the one of the legal representatives of the deceased defendant No.2 who is now represented by appellant Nos.2 and 3. The respondent Nos.2 to 11 are the respondent Nos.2 to 11 before the FDP Court. The rank of the parties will be referred to as per their status before the FDP Court.
3. Brief facts of the case are, the plaintiffs filed a suit in O.S.No.18/2009 seeking partition and separate -5- NC: 2024:KHC-D:10265-DB RFA No. 100150 of 2024 possession of 2/3rd share in the suit schedule properties. In the suit, the defendants claimed that the suit properties are their exclusive properties. After the contest, the suit came to be decreed granting 2/3rd share in favour of the plaintiffs and 1/3rd share in favour of the defendants. Against the said judgment and decree, the defendants filed an appeal in R.F.A. No.4017/2012 before this Court. By the judgment dated 22.04.2022, the appeal came to be dismissed thereby the judgment and decree passed by the FDP Court has reached finality.
3(a) In execution of the judgment and decree, the plaintiffs initiated the Final Decree Proceedings. The defendants appeared in the final decree proceedings. The respondent No.2(a) has filed objections to the FDP petition on the ground that the decree was obtained by the plaintiffs by fraud, all the properties are not included and only two properties are shown in the suit. The FDP Court has not accepted the said contention as the judgment and decree has reached the finality. The FDP Court recorded -6- NC: 2024:KHC-D:10265-DB RFA No. 100150 of 2024 that the defendants have not complied the order of this Court in R.F.A. No.4017/2012 for payment of notional share of Rs.3,00,000/- per year in favour of the plaintiffs.
3(b) The FDP Court has appointed ADLR as Court Commissioner, after execution of warrant who has filed his report. The respondents have opposed the report on the ground that feasibility is not explained by the ADLR. The FDP Court in its order dated 31.10.2022 referred that defendants are required to pay a sum of Rs.21,10,636/- towards profits. They did not respond to the direction of the FDP Court and thereby it has pursued the report of the ADLR and came to the conclusion that the report is specifically indicating feasibility of the partition in terms of the preliminary decree and respondents are consistently absent before the Court and ultimately accepted the Commissioner's report and ordered for drawing up of final decree.
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NC: 2024:KHC-D:10265-DB RFA No. 100150 of 2024
4. Aggrieved by the same, the appellants/defendants have filed this appeal on various grounds.
5. It is contended by the learned counsel for the appellants/defendants that, the judgment is passed in O.S.No.18/2009 without including the entire joint family properties and decree is granted only in respect of 2 properties. There is no feasibility for division of the properties. This aspect has not been examined by the ADLR who is the Commissioner. Mere non-payment of notional share of Rs.3,00,000/- per year and not responding to the direction of the FDP Court in making payment of Rs.21,10,636/- is not impediment for the appellants to oppose the report of the ADLR. When the ADLR has not properly indicted the feasibility of division of the properties in terms of the preliminary decree, the FDP Court ought to have rejected the Commissioner's report instead without applying the mind, without examining the feasibility aspect, accepted the Commissioner's report and -8- NC: 2024:KHC-D:10265-DB RFA No. 100150 of 2024 therefore, the order of the FDP Court needs to be interfered with.
6. Per contra, learned counsel for plaintiffs/respondents has contended that the suit schedule consists of two items in R.S.No.1092 measuring 9 acres, R.S.No.892 measuring 2 acres 22 guntas. The plaintiffs are entitled to 2/3rd share and defendants are entitled to 1/3rd share in the said properties. The defendants are required to pay notional share of Rs.3,00,000/- per year to the plaintiffs as per the direction of this Court in R.F.A. No.4017/2012. It has been calculated by the FDP Court and an order was passed directing the defendants to pay Rs.21,10,636/-. Till today, payment was not made. In order to avoid answering the FDP Court for non-payment, the respondents continuously remained absent. The ADLR who was appointed as Court Commissioner has inspected the spot with due notice to both the parties, measurement work carried out and specifically made a mention that there is a feasibility of -9- NC: 2024:KHC-D:10265-DB RFA No. 100150 of 2024 division of properties to both the parties. The 2/3rd share of defendants is carved in R.S. No.1092 and 892. As per it, the defendants are entitled to almost 6 acres in item No.1 and in item No.2, they are entitled for 1 acre 20 guntas. The extent of land available for division is huge, measuring 11 acres 20 guntas. Considering all the relevant factors the Commissioner has noted the existence of the road on the western side of R.S. No.1092 and effected the division east to west allotting 5 acres 39 guntas in favour of the plaintiffs, 2 acres 39.8 guntas in favour of the defendants. In R.S. No.892, since there was no road attached to the land, property was divided north to south whereas 1 acre 20 guntas was allotted to the share of plaintiffs and 33 guntas was allotted to the share of defendants. When a huge property is amenable for division, the contention of defendants that it is not feasible to effect division is only to defeat the purpose of the decree. The plaintiffs are agitating their rights since 2009. Even in the year 2024, the defendants do not want the plaintiffs to enjoy the fruits of the decree.
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7. It is further contended that the FDP Court has not examined the feasibility aspect and accepted the report of the ADLR and ordered for drawing up of final decree. Learned counsel also contended that subsequent to drawing up of final decree, plaintiffs have filed Execution Case No.24/2024. On 01.07.2024, the FDP Court has directed for delivery of share of the plaintiffs. Accordingly the plaintiffs have taken the possession of their share of property through the process of the Court. The same has been accepted by the FDP Court and the matter has reached finality. Thereby the appeal becomes infructuous. To this extent, the learned counsel has filed a memo.
8. We gave our anxious consideration to the arguments addressed by the learned counsel for the parties and perused the material on record.
9. There is no dispute as to the suit filed in O.S.No.18/2009 by the plaintiffs against the defendants, which came to be disposed of on 15.01.2012 granting
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NC: 2024:KHC-D:10265-DB RFA No. 100150 of 2024 1/3rd share in favour of the defendants and 2/3rd share in favour of the plaintiffs. The defendants have challenged the said judgment and decree in R.F.A. No.4017/2012. This Court by order dated 22.04.2022 dismissed the said appeal and directed the defendants to pay notional profit of Rs.3,00,000/- per year to the plaintiffs. The FDP Court by its order dated 31.10.2022, directed the defendants to pay Rs.21,10,636/-, which was not responded by them till today.
10. Learned counsel for appellants/defendants submits that the defendants have not paid any amount on the ground that the decree was obtained by fraud.
11. We have also perused the impugned order. The FDP Court appointed the ADLR as the Court Commissioner for effecting the division in terms of the preliminary decree. The ADLR has filed his report. Respondents opposed the ADLR report on the ground that feasibility is not examined by the ADLR. The FDP Court accepted it. It is pertinent to note that 9 acres of land in R.S. No.1092
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NC: 2024:KHC-D:10265-DB RFA No. 100150 of 2024 and 2 acres 20 guntas in R.S. No.892 is required to be divided in 2 portion i.e., 1/3rd to the defendants and 2/3rd to the plaintiffs. If such a partition is effected, almost plaintiffs will get 8 acres 31 guntas and defendants will get 2 acres 20 guntas of land and such a huge extent is available to the plaintiffs and defendants even after the division.
12. The copy of sketch allotting the share to the plaintiffs and defendants is made available in the records. It s seen that in R.S. No.1092, there exists a road on the western side of the land. For this reason, the Commissioner has divided the property east to west and marked the southern portion to the defendants and northern portion to the plaintiffs.
13. It is pertinent to note that there exists a common well for both plaintiffs and defendants. For this common well, the Commissioner has reserved an extent of 00-01-08 land and common right to both plaintiffs and defendants to use the open well. The kharab lands
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NC: 2024:KHC-D:10265-DB RFA No. 100150 of 2024 available are equally divided and therefore there is equitable partition of R.S.No.1092 by metes and bounds can be seen.
14. In R.S. No.892, out of 2 acres 20 guntas, the ADLR carved out 1.26-10.67 acres of land as 2/3rd share of plaintiffs and 0.33-05.33 as the 1/3rd share of the defendants. The report of the ADLR shows that there is no road attached to this land and for this reason, the division was effected to north to south wherein the eastern portion is marked to the defendants and western portion is marked to the plaintiffs.
15. We are not persuaded by the arguments of the learned counsel for defendants/appellants that the ADLR has not examined the feasibility when a huge land is divided in 2 portions. We do not find any logic in the objection of the defendants as at one breath defendants want to challenge the decree dated 15.01.2012 on the ground of fraud but they have failed to substantiate the same as their appeal in R.F.A. No.4017/2012 came to be
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NC: 2024:KHC-D:10265-DB RFA No. 100150 of 2024 dismissed as per the order dated 22.04.2022. Even the direction of this Court has not been complied by the defendants. This clearly shows that for one or other reason, the defendants want to drag the proceedings and they do not want the litigation to come to an end. Hence, there is no reason to substantiate the contention taken by the defendants.
16. During the pendency of this appeal, plaintiffs have put the decree into execution in Exe.Case No.24/2024. The FDP Court ordered for delivery of 2/3rd share to the plaintiffs. On 01.07.2024, through the process of the Court, the plaintiffs have taken the possession of their 2/3rd share and report was placed before the FDP Court and on 06.07.2024, the FDP Court has accepted the delivery and thereby the execution proceedings came to be closed.
17. Even now after the delivery of 2/3rd share of the plaintiffs, the defendants are not happy as they have to part with the property which they are enjoying till now.
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NC: 2024:KHC-D:10265-DB RFA No. 100150 of 2024 The defendants though raised a plea of feasibility, they have not placed any material to show that there is no feasibility for effecting division of both the properties. Hence, we are persuaded to hold that the appeal is devoid of merits. In the result, the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE NAA List No.: 1 Sl No.: 2