Karnataka High Court
Vijay Kumar S/O Late Shivlingappa vs Nagshetty Died Per Lrs And A Ors on 3 March, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 03RD DAY OF MARCH 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
REGULAR SECOND APPEAL No.200218/2016
Between:
Vijay Kumar S/o Late Shivalingappa,
Age 58 years, Occ. Agriculture,
R/o Village Mamadgi,
Taluk Zaherabad - 502 220.
(Telagan State)
... Appellant
(By Sri.K.M.Ghate, Advocate)
And:
1. Nagshetty Died per LRs.
a) Sulochana W/o Late Nagshetty,
Died respondent No.b, c, d, e.
and her LRs on record
b) Kupendra S/o Late Nagshetty,
Age 35 years, Occ. Agriculture,
R/o Dhanashree Nyalkal Mandal,
Tq. Zaheerabad (TS)
c) Sangeeta W/o Rajshekhar,
Age 32 years,
R/o Dhanashree Nyalkal Mandal,
2
Tq. Zaheerabad (TS)
d) Smt.Jaishree W/o Not known
Age 30 years, Occ. Household
R/o Village Bemalkheda,
Tq. Humanabad, Dist Bidar- 585 330.
e) Vaijinath S/o Late Nagshetty,
Age 50 years, Occ Agriculture
R/o Ganesh Maidan,
Bidar - 585 401.
2. Chandrappa S/o Late Bheemrao,
Age 62 years, Occ. Agriculture,
R/o Mamadagi, Tq. Zaherabad,
(TS) 502 220.
3. Shankerappa S/o Late Bhimarao,
Died his LRs
a. Nagmani W/o Late Shankerappa,
Age 65 years, Occ. Household,
R/o Ganesh Maidan Bidar,
Bidar - 585 401.
b. Shivakumar S/o Late Shankerappa,
Age 42 years, Occ Agriculture,
R/o Ganesh Maidan Bidar,
Bidar - 585 401.
c. Basavaraj S/o Late Shankerappa,
Age 39 years, Occ. Agriculture,
R/o Ganesh Maidan Bidar,
Bidar - 585 401.
d. Sangappa S/o Late Shankerappa,
Age 37 years,
3
Occ. Business & Agriculture,
R/o Ganesh Maidan Bidar,
Bidar - 585 401.
e. Chandrakala W/o Umakanth
Age 35 years, Occ. Household,
R/o H.No.5-10, Opp. Police Station,
Near Vegetable Market, Shankarpalli,
R.R.District - 5600010.
(Telagan State)
f. Premala W/o Hanamantharao Hebbal,
Age 35 years, Occ. Household,
R/o Dhanashree,
Zaherabad Mandal,
(Telagan State),
Mahedak District - 502 220.
g. Shanthamma W/o Shampatkumargiri
Age 33 years, Occ. Household,
R/o H.No.1-81-1,
Giri Nilaya Singer,
Bagh Bidar - 585 401.
4. Sangamma W/o Gurupadappa Hebbal
Died
5. Rajkumar S/o Late Shivalingappa
Age 50 years, Occ. Agriculture,
R/o Mamdagi, Tq. Zaheerabad,
(Telagan State)
Mahedak District - 502 220.
6. Jaganath S/o Late Sangappa
@ Bakkappa Tirlapure,
Age 55 years, Occ. Agriculture,
R/o Village Hailalpur,
4
Tq Humnabad, Dist Bidar 585 330.
7. Basavanth Rao S/o Shankerappa Varvatti,
Age 60 years, Occ. Agriculture,
R/o Village Mannaekhalli,
Tq. Humnabad,
Dist. Bisdar - 585 330.
...Respondents
(By Sri.A.S.Roja Advocate for R3(B, D)
Notice to R1(A, E), R2, R3 (A G)
R4 to R7 dispensed with vide order dated 09.09.2016
R4 died)
This Regular Second Appeal is filed under
Section 100 of CPC against judgment and decree dated
20.06.2016 passed in R.A.No.60/2015 on the file of
Principal District and Sessions Judge, Bidar dismissing
the appeal and confirming the judgment dated
14.08.2015 passed in F.D.P.No.16/2003 on the file of
Principal Senior Civil Judge & CJM, Bidar.
This appeal coming on for admission this day, the
Court delivered the following:
5
JUDGMENT
This is a plaintiff's second appeal calling in question judgment and decree passed by the Prl. District Judge, Bidar dated 20.06.2016 in R.A.No.60/2015 whereunder appeal filed by the unsuccessful plaintiff challenging the judgment and decree passed by Prl. Senior Civil Judge and CJM, Bidar dated 14.08.2015 in FDP No.16/2003 allowing the petition filed under Order 20 Rule 18 read with Section 54 of CPC in part by accepting the valuation report submitted by Sri.Lakshman, Executive Engineer, Karnataka Urban Infrastructure Development (Finance Corporation) - CW2 in part namely, insofar as Sl.No.1 and 2 of Schedule-A property who had valued Sl.No.2 of Schedule-A property at ` 31,26,683/- and arrived at a conclusion that value of site is to be taken at ` 26,00,000/- and had valued the residential building situated thereon at ` 20,00,000/- and thereby arrived at a conclusion that total value of Sl.Nos.1 and 2 of 6 Schedule-A property is to be valued at ` 46,00,000/- came to be affirmed. Being aggrieved by the same plaintiff is before this Court challenging the said judgment and decree contending interalia that both the Courts have committed a serious error without application of judicious mind.
2. A memo came to be filed on 09.09.2016 by learned Advocate appearing for appellant praying that notice to respondent-1(a-e), respondent-2, respondent- 3(a-g) and respondents-4,5,6 & 7 may be dispensed with as they have not appeared before the appellate Court. Placing the said memo on record, notice to abovesaid respondents came to be dispensed with at the risk of the appellant. Records of this case would also indicate that this appeal was listed from time to time and by order dated 28.11.2016 records of both Courts were called for and subsequently it was ordered to be listed for admission by order dated 23.01.2017. Thereafter matter has been listed from time to time and 7 by consent of learned Advocates appearing for parties, this appeal is taken-up for final disposal since it is not disputed by both the learned Advocates that suit is of the year 1992 and a direction had also been issued by this Court in W.P.Nos.81624-81625/2009 on 05.06.2009 directing the trial Court to expeditiously dispose of the final decree proceedings and subsequently in W.P.No.102643-102644/2013 by order dated 27.08.2013 the jurisdictional trial Court had been directed to dispose of final decree proceedings within a period of three months. This Court has also taken into consideration that second petitioner was aged 90 years at the time of initiating Final Decree Proceedings and she could not see the light of the decree she had obtained during her lifetime.
3. It is contended by Sri.K.M.Ghate learned counsel appearing for appellant that both Courts have got swayed by reports submitted by the Government Engineers without examining the admission given by 8 them namely, in their cross-examination admitting that Sl.No.2 of Schedule-A property is located or situated in a fully developed commercial area which is in the vicinity of Civil Court Premises, District Hospital, Schools, Colleges, Dispensaries and other commercial establishments and as such it is contended that trial Court has committed an error in misreading the evidence available on record. He would also submit that except seeking valuation of Sl.No.2 of Schedule-A property and entire Schedule-B property there was no need or necessity for the trial Court for appointing a Court Commissioner to value all other properties and this was not the subject matter or scope of final decree proceedings. In support of his submission he has relied upon the findings recorded by this Court in R.F.A.No.05/2004 at Paragraph No.16. He would further elaborate his submission by contending that appellant had placed documentary evidence on record like valuation issued by Sub-Registrar, Bidar for the 9 year 2013-2014 relating to Sl.No.2 of Schedule-A property which indicated that market value of property in residential area was ` 660/- per square feet and in commercial area value was `1,600/- per square feet and in addition to the market value of constructed structure at ` 1,100/- per square feet and said documentary evidence has not been challenged by defendants and as such Courts below erred in proceeding to assess the market value on the basis of valuation report submitted by CW2 and as such he has prayed for valuation partly determined by trial Court being set-aside by formulating the substantial question of law as formulated in the appeal memorandum and answering them in favour of appellants.
4. He would also draw the attention of Court to certified copy of sale-deed produced by plaintiff before trial Court according to which the valuation of market value of a open site was `1,520/- per square feet and this vital evidence has been ignored by trial Court. He 10 would also submit that trial Court had got entirely confused with regard to valuation of shares and extent to which the plaintiffs were entitled to and thereby it has resulted in an erroneous order being passed. He would also submit that evidence of CW2 would indicate that he had not made any enquiries at the jurisdictional office of Sub-Registrar to ascertain the value of properties in question and he had taken the cost of land as per PWD circulars and said circulars had not been enclosed with the report and this is also admitted by him in his cross-examination and this vital admission elicited in the cross-examination has been overlooked by both the Courts. He would also submit that CW2 has relied upon the report of list of market value of agriculture and non-agriculture lands of Bidar Taluk for the year 2004-2005 and based upon said valuation had submitted the market value of Sl.No.2 of Schedule-A property at `11,76,000/- being the cost of land and entire value of property at ` 31,26,683/-. He would draw 11 the attention of Court to various admissions of CW2 elicited in the cross-examination to contend valuation furnished by him could not have been accepted by trial Court and affirmed by the appellate Court. Hence, on these grounds he has sought for substantial questions of law being answered in favour of the appellants.
5. Per contra Sri.A.S.Roja learned counsel appearing for respondent No.3(b) and (d) has supported the judgment and decree passed by trial Court as upheld by lower Appellate Court and contends that CW1 himself had admitted that Sl.No.2 of Schedule-A property is a residential property and he himself had valued the said property in his report Ex.C1 at ` 650/- per sq.ft. and this is the valuation which has been taken into consideration by the trial Court to value the land and there is no error committed by the trial Court or Appellate Court. He would further contend that in so far as valuation of building situated in Sl.No.2 of Schedule- A property is concerned, the method of valuation 12 adopted by CW2 has been accepted by CW1 himself in his cross-examination as correct and particularly with reference to calculation of depreciation and as such there is no error committed by both the Courts in accepting the valuation made by C.W.2. Hence, he prays for dismissal of the appeal by contending that there is no substantial question law involved in this appeal for being formulated and even if formulated, he prays for same being answered in favour of respondents.
6. The Hon'ble Apex Court in SIR CHUNILAL V.MEHTA AND SONS v. CENTURY SPINNING AND MANUFACTURING CO. LTD. reported in AIR 1962 SC 1314 has held that, 'the proper test for determining whether a question of law raised in the case is substantial would be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally 13 settled by the Court or is not free from difficulty or calls for discussion of alternative views' would be a substantial question of law. It has been held by Hon'ble Apex Court as under ;-
"6. We are in general agreement with the view taken by the Madras High Court and we think that while the view taken by the Bombay High Court is rather narrow the one taken by the former High Court of Nagpur is too wide. The proper test for determining whether a question of law raised in the case is substantial would in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
7. The Hon'ble Apex Court in the case of JAGDISH SING v. NATTHU SINGH reported in 14 AIR 1992 SC 1604 has held that, 'where the findings by a Court of facts is vitiated by non-consideration of relevant evidence or by essentially wrong approach to the matter then High Court would not precluded from recording proper findings.'
8. If the Courts below even if concurrently held by non appreciating the evidence available on record properly this Court would be at liberty to reappreciate the evidence and relied its own conclusion reversing the judgments of the Court below. This view has been fortified by dicta laid down by the Apex Court in the case of RANLAL AND ANOTHER v. PHAGUA AND OTHERS reported in (2006) 1 SCC 168. It came to be held by Apex Court as under ;-
"19. In Mohan La v. Nihal Singh reported in (2001) 8 SCC 584, the trial Court dismissed the suit for the reasons recorded therein on the basis of the record and oral evidence. The lower appellate Court, as noticed earlier, had not considered oral and documentary evidence properly. The lower appellate Court which is the final Court of fact 15 mechanically confirmed the findings of the trial Court and upheld the judgment of the trial Court dismissing the suit. The High Court for the cogent and convincing reasons recorded in the judgment has rightly interfered with the concurrently erred in not appreciating the oral and documentary evidence properly and, therefore, the High Court is at liberty to re-appreciate the evidence and record its own conclusion for reversing the orders passed by the lower Court. The judgment of this Court in the case of Mohan Law v. Nihal Singh cited by the learned counsel for the appellant will not be of any assistance to the appellant herein."
9. As to what constitutes of substantial questions of law even if there is a clear enunciation of law already held by the higher Court came up for consideration before the Hon'ble Apex Court in the case of STATE BANK OF INDIA AND ORS v. S.N.GOYAL reported in AIR 2008 SC 2594 and it was held, 'substantial question of law and question of law which affect final decision of case would be substantial question of law and question already decided can also be a substantial question in certain contingencies.' It 16 has been held that errors often committed by Appellate Court can be rectified in the second appeal by entertaining the same and it would be a substantial question of law interse parties and the said law laid down by Hon'ble Apex Court reads as under :-
"9.1) Second appeals would lie in cases which involve substantial questions of law. The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of section 100 CPC, any question of law, which affects the final decision in a case, is a substantial question of law as between the parties. A question of law, which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this Court (or by the concerned High Court so far as the State 17 is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower Court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the concerned High Court), but the lower Court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the concerned High Court) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this Court (or the concerned High Court) and the same has been followed by the lower Court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two view points, it can be said that a substantial question of law arises for consideration. There cannot, therefore, be a strait-jacket definition as to when a substantial question of law arises in a case. Be that as it may.
9.3) It is a matter of concern that the scope of second appeals and as also the procedural aspects of second appeals are often ignored by the High Courts. Some of the oft-repeated errors are :
18
(a) Admitting a second appeal when it does not give rise to a substantial question of law.
(b) Admitting second appeals without formulating substantial question of law.
(c) Admitting second appeals by formulating a standard or mechanical question such as "whether on the facts and circumstances the judgment of the first appellate Court calls for interference" as the substantial question of law.
(d) Failing to consider and formulate relevant and appropriate substantial question/s of law involved in the second appeal.
(e) Rejecting second appeals on the ground that the case does not involve any substantial question of law, when the case in fact involves substantial questions of law.
(f) Reformulating the substantial question of law after the conclusion of the hearing, while preparing the judgment, thereby denying an opportunity to the parties to make submissions on the reformulated substantial question of law.
(g) Deciding second appeals by re-
appreciating evidence and interfering with findings of fact, ignoring the questions of law.19
These lapses or technical errors lead to injustice and also give rise to avoidable further appeals to this Court and remands by this Court, thereby prolonging the period of litigation. Care should be taken to ensure that the cases not involving substantial questions of law are not entertained, and at the same time ensure that cases involving substantial questions of law are not rejected, as not involving substantial questions of law."
10. Yet again the Hon'ble Apex Court in the case of ABDUL RAHEEM v. KARNATAKA ELECTRICITY BOARD AND ORS reported in AIR 2008 SUPREME COURT 956 has held that 'the finding arrived at by consideration of irrelevant fact or by non consideration of relevant fact would give rise to a substantial question of law.' It was held :
"12. However, there cannot be any doubt whatsoever that consideration of irrelevant fact and non-
consideration of relevant fact would give raise to a substantial question of law. Reversal of a finding of fact arrived at by the First Appellate Court ignoring vital documents may also lead to a substantial question of law.20
In Vidhyadhar v. Manikrao and another [(1999) 3 SCC 573], this Court held;
"23. The findings of fact concurrently recorded by the trial Court as also by the lower appellate Court could not have been legally upset by the High Court in a second appeal under Section 100, CPC unless it was shown that the findings were perverse, being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion." "
11. Keeping these aspects in mind and the rival contentions raised at the bar this Court is of the considered view that following substantial questions of law would arise for consideration :-
(1) Whether the trial Court was justified in directing the Court Commissioner appointed by it to value Sl.No.1 of 'A' Schedule property i.e., "Gandhi Gunj"
property and was it beyond the observations made by this Court in R.F.A. No.5/2004 by judgment dated 09.01.2012 ?21
(2) Whether trial Court was justified in adopting the valuation of Sl.No.2 of 'A' Schedule property i.e., Ganesh Maidan property at ` 46,00,000/- ignoring the valuation report submitted by CW1- Veershetty Manage and accepting the report of CW2 - Sri.Laxman, partly?
Learned Advocates have submitted that arguments canvassed by them already would hold good to the substantial questions of law formulated and as such, learned counsel appearing for appellant prays for same being answered in favour of appellant and learned counsel appearing for respondents has prayed for same being answered in favour of respondents.
12. Before adjudicating upon the substantial questions of law formulated herein above this Court is of the considered view that few facts necessary for the limited purpose of such adjudication are to be stated and it can be crystallized as under;-
22BRIEF BACKGROUND OF THE CASE:
Appellant herein along with his mother instituted a suit O.S.No.48/1992 seeking partition and separate possession of suit schedule properties claiming 1/6th share and said suit came to be decreed on 20.09.2003.
Same was challenged by defendants in R.F.A.No.5/2004 and said appeal came to be dismissed on 16.08.2006 by confirming the judgment and decree of the trial Court.
Plaintiffs filed a petition on 12.11.2003 for drawing up of final decree and in the said Final Decree Proceedings, a Court Commissioner was appointed to effect division of properties in accordance with preliminary decree drawn. Court Commissioner submitted his report and final decree came to be passed on 31.01.2011. In the meanwhile, defendants had preferred SLP No.2475/2007 before Apex Court challenging the judgment and decree passed by this Court in RFA No.5/2004 dated 16.08.2006 and it came to be allowed and judgment passed by this Court was set aside and 23 matter came to be remitted back to this Court. After having heard the learned Advocates, this Court dismissed RFA No.5/2004 on 09.01.2012 with observations to the following effect ;-
"The trial Court on careful appreciation xxx found fault with. The evidence on record shows that the plaintiffs are residing at Zaheerabad whereas the defendants are residing at Bidar. The question is whether the property, which is a house property, which is in the possession of the defendants is to be exclusively allotted to them and the property in the possession of the plaintiffs at Zaheerabad is exclusively allotted to them is a matter to be considered in the final decree proceedings. At the time of effecting the partition by metes and bounds certainly the Court will take note of the fact that the defendants are residing at Bidar in the house property in the last 40 years and if the property at Bidar in terms of money is more value than the house property at Zaheerabad, the plaintiffs could be compensated in terms of money and defendants be allowed to continue to enjoy the house property at Bidar. This matter has to be considered in the final decree proceedings. Similarly, when the first defendant has alienated plot No.3 in favour of defendant Nos.6 and 7 and these defendants have put-up construction on the property purchased and residing therein, in the final decree proceedings, the Court can 24 consider the request to allot these properties to the share of first defendant, so that their interest is duly safeguarded. This matter also has to be considered in the final decree proceedings at the time of effecting the partition by metes and bounds. Under these circumstances, I am satisfied with the finding recorded by the trial Court that all these properties are the joint family properties and they are liable for partition and the plaintiffs and defendants are entitled to 1/6th share each is legal and valid and do not call for any interference."
(emphasis supplied)
13. It is also stated at the Bar that said judgment has not been challenged before Apex Court and as such, it has reached finality. Plaintiffs in order to enjoy the fruits of the decree obtained by them in O.S.No.48/1992, proceeded with final decree proceedings in FDP No.16/2003 which had been filed by them under Order 20 Rule 18 of CPC for drawing up of final decree in accordance with observations made by first appellate Court in RFA No.5/2004. 25
14. It would be apt to note that entire 'B' schedule properties are situated at Zaheerabad are said to be in possession of appellants-plaintiffs. Suit schedule 'A' properties are said to be in possession of defendants-1 to 4 i.e., respondent Nos-1(a) to (e), 2, 3(a) to (g) and respondent No.4 namely, defendant Nos,1, 1(a) to (e), 2, 3(a) to (g) and defendant No.4. In order to give effect to the observations made by this Court in RFA No.5/2004 on 09.01.2012 which was to the effect that FDP Court should take note of the fact that defendants are residing at Bidar for past 40 years in the house property and if the property at Bidar is more valuable than the house property at Zaheerabad, plaintiffs could be compensated in terms of money and defendants can be allowed to continue to enjoy the house property at Bidar. It was further observed that first defendant had already alienated plot No.3 in favour of defendants-6 & 7 and said defendants had put up construction on the property purchased by them and 26 are residing therein and as such FDP Court can consider allotting the said property to first defendant's share so that interest of defendants-6 & 7 would be safeguarded.
15. In this background , trial Court appointed a Court Commissioner by name Sri Veerashetty, who is a Civil Engineer, a Fellow Member of Indian Institute of Valuation, to assess the valuation of suit schedule properties namely, item Nos.1 and 2 of 'A' schedule properties and item Nos.1 to 6 of 'B' schedule properties and a report came to be submitted by him and this report was not objected to by the plaintiffs. However, it was objected to by the defendants. Deputy Executive Engineer, sub-division Zaheerabad, Medak District by name Sri Venkatnarayan was appointed as Court Commissioner for valuation of land and buildings situated at 'B' schedule properties and he submitted a valuation report of 'B' schedule properties and this was objected to by the plaintiffs. Report submitted by Sri 27 Veerashetty was rejected by trial Court by order dated 23.03.2013. Thereafter, Final Decree Court appointed Sri Lakshman, Assistant Executive Engineer, PWD as the Court Commissioner who submitted the market value in respect of 'A' schedule properties. One Sri Venkata Narayana was appointed as the Court Commissioner for valuation of the buildings situated at Mamadgi village, Medak District, Zaheerabad to value Schedule 'B' properties and he assessed the market value of the properties by his report. It is thereafter first appellate Court accepted first Commissioner's report and rejected the second Commissioner's report and consequently, allowed the petition and ordered that plaintiffs are entitled for 1/3rd portion of the valuation amount of the total valuation of the property (item No.2 of 'A' schedule) and said amount is to be paid by defendants to the plaintiffs as per the first Commissioner's report in R.A.No.5/2004. It was further ordered by the first appellate Court that 'B' schedule 28 properties be allotted to the plaintiffs/petitioners and they should pay 2/3rd of the valuation amount of the total valuation of 'B' schedule properties as per the first Commissioner's report. With these directions, appeal came to be allowed. Being aggrieved by the same, defendants-1 to 4 preferred RSA No.200405/2014 which came to be allowed by judgment and decree dated 24.03.2015 and matter came to be remanded back to the final Decree Court for adjudication afresh with a direction to the Final Decree Court to consider both the Commissioner's report and afford opportunity to both parties to examine and cross examine the Commissioners and thereafter to fix the market value of the property and also to fix the compensation payable to either of the parties.
16. Pursuant to said order of remand passed by this Court on 24.03.2015, plaintiffs examined C.W.1 - Sri Veerashetty as C.W.1 and got marked the report as Ex.C-1. Defendants examined the Court Commissioners 29 Sri Laxman and Sri Venkatnarayan as C.Ws.2 and 3 respectively and got marked documents including their reports as Exs.C-2 to C-5. Trial Court after considering the material evidence placed on record and on evaluating such evidence and by taking into consideration rival contentions ordered for drawing up of final decree in following terms:
(1) Item Nos.1 and 2 of plaint 'A' schedule properties were allotted to the share of defendant Nos-1(a) to 1(e), defendant No.2, defendant Nos.3(a) to (h) and defendant No.4 on they paying an amount of ` 53,53,333/- to the first plaintiff towards his 2/3rd share.
(2) Item No.3 of plaint 'A' schedule property was allotted to deceased first defendant's share i.e., to defendant Nos.1(a) to (e) since deceased first 30 defendant had alienated the same to defendant Nos.6 & 7 during his life time.
(3) Item Nos.1 to 6 of plaint 'B' schedule property was allotted to the share of first plaintiff towards his share without paying market value of ` 9,53,334/- to defendant Nos.1(a) to (e), defendant No.2, defendant Nos.3(a) to (h) and defendant No.4.
Final Decree Court after considering rival contentions has arrived at the valuation of the properties as under:
(i) Sl.No.2 of Schedule 'A' properties:
a). Value of the Open Site of Sl.No.2 of `26,00,000-00 the plaint schedule "A" property bearing CMC No.8-10-55 (Oldest), 8-
10-99 (Old), 8-10-199 (New) measuring 4000 sq.ft. situated at Ganesh Maidan Taluk and Dist. Bidar
b). Value of the Residential House `20,00,000-00 situated in the Open Site of Sl.No.2 of 31 the plaint schedule "A" property bearing CMC No.8-10-55 (Oldest), 8-
10-99 (Old), 8-10-199 (New) measuring 4000 sq.ft. situated at Ganesh Maidan Taluk and Dist. Bidar Total `46,00,000-00
(ii) Sl.No.1 of Schedule 'A' properties:
a). Value of the Open Site of Sl.No.1 of `39,60,000-00 the plaint schedule "A" property bearing CMC No.9-6-33 (Oldest), 8-6-
171 (New),9-6-235 (Present) situated at Gandhi Gunj Tq., & Dist., Bidar
b). Value of the Shop-cum-godown `09,00,000-00 situated in the Open Site of Sl.No.1 of plaint schedule "A" property bearing CMC No.9-6-33 (Oldest), 8-6-171 (New), 9-6-235 (Present) situated at Gandhi Gunj Tq., & Dist., Bidar Total `48,60,000-00
(iii) Schedule 'B' property - ` 14,30,000/-
(properties situate at Zaheerabad) 32
17. In view of the observations made in Paragraph No.16 in R.F.A.No.5/2004, present situation has cropped up before the Court below so as to adjust the rights of parties. To put it differently, plaintiffs were residing at Zaheerabad in Telangana State where 'B' schedule properties are located. Defendants were residing at Bidar Town, Karnataka State where 'A' Schedule properties are situated and as such this Court while disposing of R.S.A.No.5/2004 on 09.01.2012 had observed that residential properties can be valued and on such valuation of properties, rights of the parties can be adjusted. In other words, this Court was of the view that shares as decreed by trial Court and affirmed by it ought to be allotted to respective sharers.
18. The first Commissioner had valued 'A' and 'B' schedule properties at Rs.2,51,60,000/- and Rs.14,30,000/- respectively. Whereas, the second Commissioner had valued the said properties at Rs.45,41,807/- and Rs.24,22,143/- respectively. Thus, 33 there was a wide difference between the valuation made by two Commissioners. As such, the parties to the present lis are disputing with regard to valuation of the properties. Thus, it boils down as to which valuation would be the proper and what would be the correct valuation of the properties.
19. In the light of above stated facts, this Court would proceed to adjudicate the substantial questions of law formulated herein above.
RE-SUBSTANTIAL QUESTION OF LAW NO.1
20. Perusal of the records would indicate that plaintiffs had claimed 1/6th share in suit schedule properties and same has been described in the plaint as Schedule-A and Schedule-B. The properties are described in plaint schedule reads as under:
"SCHEDULE-A (1) Shop bearing Municipal No.9-
6-33 old 9-6-148 new, with Godown having R.C.C. roof, 34 situated at Gandhi Gunj Bidar.
(2) Residential House bearing Municipal No. 8-10-31 old, 8-10-55 new situated at Ganesh Maidan, New Housing Colony, Bidar.
(3) Plot bearing No.13, and its Municipal No. 9-1-19/2, old, 9-1-27 new situated at Near Railway Station Bidar.
SCHEDULE-B (1) House bearing No.1-5 and 1- 23, situated at village Mamadgi, Taluka Zaheerbad, A.P. (2) House No.2-3/1 situated at village Mamadgi, Taluka Zaheerbad, A.P. (3) House No.2-2 situated at village Mamadagi Taluka Zaheerbad, A.P. (4) House No.2-1 situated at village Mamadagi Taluka Zaheerbad, A.P. (5) House No.2-3/2 situated at village Mamadagi, Taluka Zaheerbad, A.P. 35 (6) House No.4-7, situated at village Mamadagi, Taluka Zaheerbad, A.P."
Schedule-A consists of three items namely Sl.No.1 to 3 and Sl.No.1 property hereinafter is referred to as "Gandhi Gunj" property, Sl.No.2 property hereinafter is referred to as "Ganesh Maidan" property for the purposes of convenience. Sl.No.3 property had been sold by first defendant in favour of defendants-6 & 7. Sl.No.1 of Schedule-A property undisputedly is a commercial property, which is not seriously disputed by both the learned Advocates appearing for parties.
21. Thus, it ought to be examined as to whether there was any direction or observations made by this Court or R.S.A.No.5/2004. With reference to Sl.No.1 of Schedule-A property, in as much as both the Courts have gone deep into the facts with reference to Sl.No.1 of Schedule-A property also. At the cost of repetition it requires to be observed that Co-ordinate Bench while 36 disposing of R.S.A.No.5/2004 had made observation only with reference to house property and not with reference to commercial property i.e., Sl.No.1 of Schedule-A property. The only issue or point which the trial Court ought to have considered or examined is as to what would be the value of Sl.No.2 of Schedule-A property as against the value of Schedule-B properties, so as to adjust the shares. Since, Sl.No.3 property had been sold in favour of defendants-6 & 7 by first defendant, value of the said property was also required to be ascertained, so that it could be allotted to the share of first defendant and for that limited purpose valuation had to be ascertained through a Court Commissioner. As to whether all the properties situated at Bidar can be allotted to defendants themselves as against the properties situated at Zaheerabad which can be allotted to plaintiffs was not an issue at all. In this background, observation made by this Court on 09.01.2012 while disposing of RFA 37 No.5/2004 requires to be extracted for immediate reference at the cost of repetition and it reads as under:
"16. The trial Court on careful xxx Bidar. The question is whether the property, which is a house property, which is in the possession of the defendants is to be exclusively allotted to them and the property in the possession of the plaintiffs at Zaheerabad is exclusively allotted to them is a matter to be considered in the final decree proceedings. At the time of effecting the partition by metes and bounds certainly the Court will take note of the fact that the defendants are residing at Bidar in the house property in the last 40 years and if the property at Bidar in terms of money is more valuable than the house property at Zaheerabad, the plaintiffs could be compensated in terms of money and defendants be allowed to continue to enjoy the house property at Bidar. This matter has to be considered in the final decree proceedings. Similarly, when the first defendant has alienated plot No.3 in favour of defendant Nos. 6 and 7 and these defendants have put up construction on the property purchased and residing therein, in the final decree proceedings, Court can consider the request to allot these properties to the share of first defendant, so that their interest is duly safeguarded. This matter also 38 has to be considered in the final decree proceedings."
(emphasis supplied) Nowhere in the above order it was observed by Co- ordinate Bench that Item No.1 i.e., Sl.No.1 of Schedule- A property would also be the subject matter of valuation. As such the appointment of Court Commissioner to value Sl.No.1 of Schedule-A property was to be adjusted or appropriated between parties and submission of reports by Court Commissioners CW1 and CW2 in respect of said property was uncalled for and it was not at all necessary. As such scrutiny, examination, discussion and adjudication in so far as Sl.No.1 of Schedule-A property i.e., Gandhi Gunj by both the Courts was uncalled for and it was not necessary and there was no direction or observation by this Court while disposing of R.F.A.No.5/2004 on 09.01.2012. Hence, findings recorded by both the Courts on Sl.No.1 of Schedule-A property i.e., Gandhi 39 Gunj property cannot be sustained. Hence, substantial question of law No.1 is answered in the negative since co-ordinate Bench while disposing of RFA No.5/2004 on 09.01.2012 had only observed that valuation or appropriation of shares between parties is to be confined in respect of residential properties only. Hence, judgment and decree passed by trial Court as affirmed by the First Appellate Court in so far as determining the value of Sl.No.1 of 'A' Schedule property i.e., Gandhi Gunj property was beyond the observations made by this Court and as such valuation made was not necessary and as such, it cannot be sustained. RE-SUBSTANTIAL QUESTION OF LAW NO.2
22. Perusal of judgment and decree passed by trial Court as affirmed by the Lower Appellate Court with reference to Court Commissioner's reports Ex.C.1, Ex.C.2 and Ex.C.3 would disclose that two (2) Commissioners had valued item No.2 of plaint 40 Schedule-A property i.e., "Ganesh Maidan" property as under ;-
(i) By CW1 ` 1,58,62,500/-
(ii) By CW2 ` 31,26,683/-
A perusal of report submitted by Valuer-Engineer who was examined as CW1 and whose report came to be marked as Ex.C1, would disclose that he had valued the land, building, amenities and services of Sl.No.2 of Schedule 'A' property at ` 1,58,62,500/- as under ;-
a) Land ` 1,20,00,000/-.
b) Building ` 35,35,000/-
c) Amenities ` 1,70,000/-
d) Services ` 1,57,500/-
Total ` 1,58,62,500/-
and rounded of the total value at ` 1,58,60,000/-
23. Trial Court by its judgment and decree dated 14.08.2015 had discussed the report with reference to 41 his oral evidence available on record and while examining as to whether said property i.e., Sl.No.2 of Schedule 'A' property is to be construed as residential or commercial has arrived at a conclusion that it is to be treated as a property situated within residential area and not commercial area. This is the first factual error committed by the trial Court for reasons set out below.
24. Perusal of the report of Commissioner as well as the evidence would clearly indicate that CW1 in his report - Ex.C-1 while examining the characteristics of the site in question in Sl.No.2 of Schedule-A has opined that it is located both in residential and commercial area and property is in an area of mixed locality. He has also clearly stated that area is fully developed and as such, he has opined that prevailing market rate is around ` 3,000/- per square feet. However, CW2's evidence came to be virtually accepted in-toto by trial Court. Having noticed in its order dated 14.08.2015 admission elicited in the cross-examination 42 of CW1 by the defendants, which was to the effect that said property is situated within the vicinity of half furlong of the Court premises, within 300 meters from Mohan Market and hospitals like Basaveshwar Hospital, Dr.V.S.K.Hospital, Maharshi School and other commercial buildings being located and the road leads to Nehru Stadium, yet held said property is a residential property. However, trial Court without assigning any cogent reasons and by giving a complete go-by to this admission or otherwise ignoring this admission has held that mere location of Court building, hospitals, schools, etc., would not partake the character of such area being declared as a commercial area by drawing inference only on the ground that CW1 in his cross- examination has also deposed at Page No.3 that there are residential houses situated nearby Sl.No.2 of schedule-A property, it came to be held by the trial Court that said property is in a residential area. Yet another reason assigned by the trial Court to accept the 43 evidence of CW2 who has stated that Sl.No.2 of schedule 'A' property which is in question is to be treated as a property situated in a residential area, is on the ground that in the cross-examination, CW1 has admitted that said property is fit for residential purposes. Merely because the property is a property which can be used for residential purposes and though it has all the potentiality of being considered as a property of commercial in nature and said property being situated within the vicinity of all commercial buildings like cinema houses, schools, stadium and even the Court premises, trial Court could not have ignored this vital piece of evidence and it could not have arrived at a conclusion that Sl.No.2 of schedule 'A' property is to be treated as a residential property.
25. Now turning my attention to the valuation or the value of the property in question, it requires to be noticed that in respect of land which measures about 4,000/- square feet. CW1 has calculated or assessed 44 the market value at ` 1,20,00,000/- on the ground that land fetches ` 3,000/- per square feet. Whereas, CW2 in his report Ex.C3 has valued the said land at ` 300/- per square feet. However, the Court below has adopted the value at ` 650/- per square feet. CW1 is an approved Government Valuer and this is not seriously disputed. The basis on which he has arrived at the value of `3,000/- per square feet is not only on his enquiries being made as elicited in his cross-examination at Page No.3 which has also been extracted by the trial Court at Paragraph No.23 of its judgment, but also on the ground that he had visited the Sub-Registrar Office and had made enquiry in that regard to arrive at the value of the land at ` 3,000/- per square feet. In fact a sale-deed dated 10.09.2014 also came to be produced and enclosed to the report which indicated that property sold under said sale deed measures 2847 square feet and it is situated nearby Sl.No.2 of Schedule-A property and it was sold for ` 42,70,500/- which would to be 45 ` 1,500/- per square feet as on 2014. Hence, taking into consideration that suit property is more potential, CW1 has opined its value at ` 3,000/- per square feet. The reason for not accepting the recitals found in the registered sale-deed dated 10.09.2014 by the trial Court is not forthcoming from the orders of both Courts. In fact, no reasons have been assigned by the trial Court though it had taken note of the fact of said sale deed having been produced and perused by it as could be seen from discussion found at Paragraph No.24 of the judgment. The reasons assigned by trial Court for rejecting the said material piece of evidence reads as under :-
"Further the above sale-deed dated 10.09.2014 cannot be taken into consideration herein for the reason that the above said property mentioned in the sale-deed dated 10.09.2014 is situated near Ganesh Maidan at Bidar but not in Ganesh Maidan at Bidar and neither of the vendor/vendees have been examined by the plaintiffs/petitioners to prove the sale transaction taken in the said sale- deed dated 10.09.2014 and has such the same cannot be accepted."46
26. The said finding cannot be sustained even for a moment inasmuch as, recitals in a sale deed would prevail over any other contrary stand taken by the parties, inasmuch as, Section 92 of the Evidence Act is a complete answer to this. As such, trial Court was not justified in rejecting the valuation of the property indicated in the sale-deed dated 10.09.2014. However, trial Court interestingly has proceeded to take into consideration the original report Ex.C1 dated 30.12.2012 which had been rejected by this Court in R.S.A.No.200405/2014 by judgment dated 24.03.2015 whereunder the said Commissioner had opined the value at ` 650/- per square feet and as such it arrived at a conclusion that value for ` 4,000/- per square feet the property which would be ` 26,00,000/- (650x400) ignoring the subsequent sale-deed dated 10.09.2014 as noticed herein above.
27. It is no doubt true that CW1 has admitted that valuation of building made by CW2 is in 47 accordance with the established principles of Civil Engineering for the purposes of computing the depreciation of a building. However, for the purposes of adopting the market value the potential value of building cannot be ignored where the parties are emotionally attached to the building as rightly contended by Sri.A.S.Roja learned counsel appearing for respondents No.3(b) and (d), since they were born and brought-up in the said premises/building. However, the market value as prevailing as on the date of inspection was required to be taken into consideration by both Courts. The report of CW2 alone has been accepted by trial Court and report of CW1 with reference to valuation of building has not been considered at all. CW1 has valued the building at `35,35,00,000/- and CW3 had valued at ` 19,50,683/-. The depreciation adopted by CW1 in his report is not discussed or rejected by the Courts below. Hence, the valuation 48 adopted by Final Decree Court and accepted by first appellate Court cannot be sustained.
28. This Court would have remanded the matter back to the trial Court in the normal course for parties to adduce fresh evidence and substantiate their respective claims, but for the reason that present litigation has been languishing before this Court and before various forums for the past 27 years and second plaintiff who was successful before the Courts could not see the light of decree she had obtained and enjoy the fruits of the decree and during pendency of proceedings has expired. But for the observations made by this Court while disposing of R.F.A.No.5/2004, suit schedule properties would have got divided and the shares would have been allotted and parties would have been put in possession of their respective shares long back. In the light of observations made by this Court in RFA No.5/2004 on 09.01.2012, both parties are before the 49 Court below seeking for determination of valuation of property. During the course of hearing, Sri.K.M.Ghate, learned counsel appearing for appellant, has filed an affidavit of the appellant whereunder the appellant has stated that he is ready and willing to purchase Sl.No.2 of schedule 'A' property as per valuation made by CW1 which is at ` 1,58,62,500/- after deducting value of his share and there is not even counter offer made by the respondents which would only indicate that respondents are attempting to stave off the drawing up of final decree proceedings on one pretext or other and are attempting to protract the same by keeping the lis pending and defeat the rights of the plaintiff and thereby ensuring that sole surviving first plaintiff would loose his interest in the litigation and thereby force him to accede to their demands or come to their terms.
29. In that view of the matter, this Court is of the considered view that valuation as submitted by CW1 deserves to be accepted and trial Court as well as 50 Appellate Court were not justified in ignoring the material evidence available on record and as such, substantial question of law No.2 is answered in the negative i.e., against respondents and in favour of appellant.
30. For the reasons aforestated, I proceed to pass the following:
JUDGMENT
(i) Second appeal is hereby allowed by answering the substantial questions of law in favour of appellant and against respondents.
(ii) Judgment and decree passed by Principal District and Sessions Judge, Bidar dated 20.06.2016 in R.A.No.60/2015 and the judgment and decree passed by Principal Senior Civil Judge & CJM, Bidar dated 14.08.2015 in F.D.P.No.16/2003 is hereby set aside. Petition filed by appellant under Order 20 Rule 18 of CPC before Principal Senior Civil Judge & CJM, 51 Bidar in F.D.P.No.16/2003 is hereby allowed and final decree is ordered to be drawn by accepting the report - Ex.C-1 of Court Commissioner - C.W.1.
(iii) Trial Court is hereby directed to dispose of the case expeditiously at any rate, within an outer limit of six weeks from the date of receipt of a copy of this order by executing the decree accordingly.
(iv) Registry is hereby directed to transmit the records to the jurisdictional Courts forthwith.
(v) No order as to costs.
Sd/-
JUDGE
Sn/sp