Shri Satjit Singh vs Smt. Savitri Devi (Deceased on 11 January, 2007
In the case of M.L. Subbaraya Setty Vs. M.L. Nagappa Setty [supra (iv)] it
was held:-
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M.L. Subbaraya Setty (Dead) By Lrs. And ... vs M.L. Nagappa Setty (Dead) By Lrs. And ... on 23 April, 2002
Gurdip Singh vs Balwant Singh And Ors. on 28 September, 2004
Similarly in Deva (Dead through LRs v. Sajjan Kumar (Dead) by LRs, (2003)7 Supreme Court Cases 481, while considering the cases of lack of animus possidendi, the Hon'ble Supreme Court held that the land adverse to the title of true owner can be said to have started only when the defendant derived knowledge that his possession over the suit land has been held to be an act of encroachment. Para Nos. l 1 and 12 of the judgment reads as under:-
Irene Menezes Nee Fernandes vs Lilly Fernandes on 11 November, 2013
11. Be that as it may. Lower appellate court found that
there was no valuation of the property made by the court
commissioner and as such it is contrary to law laid down in
the case of M.L.Subbaraya Setty and others Vs M.L.Nagappa
Setty and others reported in AIR 2002 SC 2066. Hence, it
would be relevant to extract relevant paragraphs of the
judgment which has been pressed into service by Sri.Pundikai
Ishwara Bhat, learned counsel for respondent No.1 before this
court and reads as under:
Smt. Sarala vs Smt. Padmavathi on 15 May, 2025
40. It is well settled that preliminary decree only declares
the share of the parties and the properties that are to be
divided. The properties are to be divided by metes and bounds
in the final decree proceedings and while doing the same, the
object would be to preserve protect and respect possession as
far as possible. It is well settled that merely because the decree
declares that the suit schedule A property is proposed to be
allotted to the petitioners, respondent Nos.8 and 9, respondent
No.4 and also respondent Nos.1 to 3 i.e., 3(a) to (c) and as per
the sketch of the suit schedule 'B' property, it is proposed to be
allotted to respondent Nos.5, 6 and 7 as per the
Commissioner's report, what is to be borne in mind is that, only
requirement is that the property allotted to each co-sharer in
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RFA No.2676/2024
correspondence to his share and it is also well settled that
Court should make an endeavour to equalise the share which is
recognised in law by making provision for payment of owelty.
The law of the land on the subject has been laid down by the
Hon'ble Supreme Court in the case of M.L.SUBBARAYA
SETTY(Dead) by LRs and Others vs M.L. NAGAPPA
SETTY(dead) by LRs and Others reported in AIR 2002 SC
2066 wherein, the Hon'ble Apex Court held as follows:
Smt.Gangamma vs Sri K.M.Basvaradhya on 3 November, 2020
3) (2011)9 SCC 451 (Marabasappa Dead by Lrs
and others v. Ningappa Dead by LRs and
others)
Rita Wadhwa vs Sanjeev Sarin (Deceased) Thr Lrs & Anr on 18 August, 2022
In support of above submissions, learned counsel for appellant places
reliance upon decisions in Vipin Aggarwal & Anr. Vs. Raman Gandotra &
Ors. 2022 Live Law (SC) 442; Director of Elementary Education, Odisha
&Ors. vs. Pramod Kumar Sahoo 2019 SCC OnLine SC 1259; Pampati
Sathamma (dead) through LR vs. Pampat Gangaram (2016) 12 SCC 401;
Himalayan Coop. Group Housing Society vs. Balwan Singh & Ors. (2015)
7 SCC 373; Kidarsons Industries Pvt. Ltd. vs. Hansa Industries Pvt. Ltd.
(2013) VIII AD (Delhi) 86; Arjan Singh vs. Punit Ahluwali & Ors. (2008)
8 SCC 348; Tulsan vs. Pyare Lal & Ors. (2006) 1 SCC 782; Pushpa Devi
Bhagat vs. Rajinder Singh & Ors. (2006) 5 SCC 566; Kishun @ Ram
Kishunv Bihari vs. Bihari by LRs (2005) 6 SCC 300; ; M.L. Subbararaya
RFA(OS) 94/2019 Page 6 of 19
Signature Not Verified
Digitally Signed
By:BABLOO SHAH
Signing Date:18.08.2022
18:39:02
Setty vs M.L. Nagappa Setty (2002) SCC 743; Banwari Lal vs. Chando
Devi (1993) 1 SCC 581; Gurpreet Singh vs. Chatur Bhuj Goel (1988) 1
SCC 270; Dr. Hansu U. Nagar vs. John Nagar & Anr. 2020 SCC OnLine
Del 637; Faquira vs. Raj Rani AIR 1984 Del 168.
Anant Deo Sharma vs The State Of Jharkhand & Ors on 29 June, 2022
Mr. Sarju Prasad, learned counsel in support of his submission has
further placed the judgment passed by the Apex Court in the case of
Marabasappa (D) by Lrs. & Ors. vs. Ningappa (D) by Lrs. & Ors., reported
in 2011 9 SCC 451, whereby it has been held that any property of a female
Hindu is her absolute property and she has full ownership- She may dispose of
same as per her wishes and same shall not be treated as a part of joint Hindu
family property- Stridhana belonging to a woman is a property of which she is
absolute owner and which she may dispose of at her pleasure. There is no
presumption, that of a joint family property and as such, for consideration of
the same, there must be some strong evidence in favour of same.
Poovappa Moily vs Kutty Moily on 18 October, 2022
26. At this juncture, learned counsel for the
respondent would place reliance on the Judgment of the
Hon'ble Apex Court in the case of M L SUBBARAYA
SETTY AND OTHERS vs M L NAGAPPA SETTY AND
OTHERS reported in AIR 2002 SC 2066 wherein in the
aforementioned judgment, the Apex Court has held that
the Court where Final Decree Proceeding is filed, same
shall be expedited and it has to proceed on a day-to-day
basis. The Final Decree Court shall bear this proposition in
mind and shall proceed further.
Basamma vs Hanumanthappa Dead By Lrs on 7 November, 2022
18. The Final Decree Proceedings Court shall
expedite the matter on the fact that Basamma died in this
14
case without having the benefit of the decree which was
passed in her favour. It is the law declared by the Apex
Court in M L SUBBARAYA SETTY AND OTHERS vs M L
NAGAPPA SETTY AND OTHERS reported in AIR 2002 SC
2066 that Final Decree Proceeding has to be proceeded on
day-to-day basis. It is made clear that the trial Court
shall expedite the final decree proceeding and ensure that
the fruits of the decree are available to the appellant at the
earliest. It is also made clear that the decree for past and
future profits is passed by this Court. The FDP Court shall
hold enquiry to ascertain past profits payable to the
appellant.
Smt. K. Lakshmamma vs T.M. Rangappa And Ors. on 13 August, 2003
The Trial Court while awarding other reliefs awarded mesne profits from the date of suit till the date of possession and there was no dispute regarding claim for determination of mesne profits in respect of 'B' Schedule property, wherein the plaintiff was held to be entitled to partition and separate possession of 1/24th share and the statement of facts made in para 1 of the judgment shows that there was no compliant in the Hon'ble Supreme Court with regard to mesne profits in respect of 'B' Schedule property and wherefore, the Hon'ble Supreme Court was considering the question regarding determination of profits in respect of 'A' and 'C' Schedule properties only wherein the plaintiff was held to be entitled to possession of the property and for recovery of possession of the property and wherefore, the Hon'ble Supreme Court was considering the provisions of Order 20 Rule 12 CPC, as the said claim would fall within Category 1 mentioned in SUBBANNA's case referred to above and wherefore, the said observations made by the Hon'ble Supreme Court while determining the question regarding ascertainment of mesne profits in a suit where the plaintiff had obtained decree for recovery of possession would not be helpful to the respondent in this case to contend that there is no other provision in the Civil Procedure Code to determine mesne profits as the observations of the Hon'ble Supreme Court stated above has to be considered in the light of the above said facts of the case and the Supreme Court has now held that in a suit for partition, mesne profits will be determined under Order 20 Rule 18 CPC., (Subbayya Setty's case ). Therefore, it is clear that while considering determination of mesne profits to which the plaintiff is entitled to in a suit for partition and separate possession, the provision that would be applicable is Order 20 Rule 18CPC, and not Order 20 Rule 12 CPC., as laid down by the above said decision.