Karnataka High Court
Chandrakant S/O Ram Naik vs Tara W/O Ram Naik on 1 March, 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1ST DAY OF MARCH, 2017
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
R.S.A. NO. 100999/2016 (FDP)
BETWEEN :
CHANDRAKANT S/O RAM NAIK
AGE:53 YEARS,
OCC:COOLIE
R/O HALEHERVATTA,
TQ.KUMTA
DIST:UTTARA KANNADA-581343
... APPELLANT
(BY SRI GOURISHANKAR H MOT, ADVOCATE)
AND :
1. TARA W/O RAM NAIK
AGE:67 YEARS,
OCC:HOUSEHOLD
R/O HALEHERVATTA
TQ.KUMTA
DIST.UTTARA KANNADA-581343
2. JAYAMALA W/O EKANATH NAIK
AGE:37 YEARS,
R/O KUJALLI TQ.KUMTA
DIST.UTTARA KANNADA-581343
... RESPONDENTS
THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DTD:14.09.2016 PASSED IN
R.A.NO.09/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE,
KUMTA, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DTD:06.02.2012, PASSED IN
FDP.NO.18/2007 ON THE FILE OF THE CIVIL JUDGE(JR.DN.),
KUMTA, ALLOWING THE COMMISSION REPORT FILED BY THE
TAHASILDAR, KUMTA ON 14.12.2008 AND REPORT FILED BY
THE P.W.D. ENGINEER ON 21.05.2009.
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THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THIS COURT, DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the defendant challenging the judgement and decree dated 14/9/2016 in R.A.No.9/2013, on the file of Senior Civil Judge, Kumta. By the said Judgement, the learned Senior Civil Judge, Kumta, dismissed the appeal of the defendant, confirming the order passed in FDP No.18/2007.
2. The learned counsel now argues that the propositor Rama Devappa Naik died in the year 1993, and therefore, in respect of first item of a suit schedule property, which is an ancestral property, the trial Court should not have allotted 1/3rd share to each of the plaintiffs.
3. As far this argument is concerned it has to be stated that the defendants having failed to challenge the preliminary decree cannot urge in his second appeal which has been filed challenging the confirmation of final decree.
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4. Second point he argues is that in the final decree proceedings, the Court appointed the Tahsildar under Section 54 of CPC for dividing the agricultural lands. But, the Tahsildar did not measure the land, instead he delegated the power to the Surveyor. So the sketch prepared by Surveyor cannot be acted upon. But, this argument cannot be accepted for the reason that on perusal of the sketch it becomes clear that the survey was conducted under the supervision of the Tahsildar. The sketch is signed by both the Tahsildar of Kumta Taluk and the Supervisor.
Therefore, I do not find any infirmity in this sketch. He does not dispute the correctness of the measurement. That being so, no substantial question of law arises. Hence, this appeal is dismissed.
Sd/-
JUDGE Vmb