In the High Court of Karnataka Dharwad Bench
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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 7 T H DAY OF DECEMBER 2015 BEFORE THE HON’BLE MR. JUSTICE S.N. SATYANARAYANA R.S.A.NO.100693/2015 BETWEEN: 1. NINGANAGOUDA S/O VEERANAGOUDA PATIL AGE: 70 YEARS, OCC : AGRICULTURIST R/O : HAROBELAVADI, TQ & DIST : DHARWAD 2. HIREGOUDA S/O VEERANGOUDA PATIL AGE: 68 YEARS, OCC : AGRICULTURIST R/O : HAROBELAVADI, TQ & DIST : DHARWAD 3. TAMMANAGOUDA S/O VEERANAGOUDA PATIL AGE: 66 YEARS, OCC : AGRICULTURIST R/O : HAROBELAVADI, TQ & DIST : DHARWAD 4. SOMANAGOUDA S/O VEERANAGOUDA PATIL AGE: 62 YEARS, OCC : AGRICULTURIST R/O : HAROBELAVADI, TQ & DIST : DHARWAD 2 5. RUDRAGOUDA S/O VEERANAGOUDA PATIL AGE: 61 YEARS, OCC : AGRICULTURIST R/O : HAROBELAVADI, TQ & DIST : DHARWAD .. APPELLANTS (BY SRI S G KADADAKATTI, T.BASAVANAGOUDA, ADVOCATES.) AND: 1. SMT. SUNANDA W/O SHIVAPPA SORATI AGE: 35 YEARS, OCC: HOUSEHOLD WORK, R/O: NAVALUR, TQ & DIST: DHARWAD 2. MALLANAGUODA S/O RANGANAGOUDA PATIL AGE: 33 YEARS, OCC: SERVICE, R/O: NAVALUR, TQ & DIST: DHARWAD 3. RUDRAGOUDA S/O NAGANGOUDA DODDAMANI AGE: 50 YEARS, OCC: AGRICULTURIST R/O: PANIGATTI, TQ: SHIGGAON DIST: HAVERI. 4. SUDHA D/O SHEKHARAGOUDA PATIL AGE: 38 YEARS, OCC: HOUSEHOLD WORK, R/O: KAMADOLLI, TQ: KUNDAGOL DIST: DHARWAD 3 5. SUNANDA @ SUJATA W/O PRAKASH SIDDANAGOUDAR AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O: GUDAGERI KAMADOLLI, TQ: KUNDAGOL DIST: DHARWAD 6. IRAVVA W/O BASANAGOUDA KULKARNI AGE: 56 YEARS, OCC: HOUSEHOLD WORK, R/O: MANIKATTI. TQ: SHIGGAON, DIST: HAVERI 7. RUDRAVVA W/O RANGANAGOUDA PATIL AGE: 59 YEARS, OCC: HOUSEHOLD WORK, R/O: NAVALUR, TQ & DIST: DHARWAD 8. BASANAGOUDA S/O VEERANAGOUDA PATIL AGE: 57 YEARS, OCC: AGRICULTURIST R/O: HAROBELAVADI TQ & DIST: DHARWAD .. RESPONDENTS (BY SRI S.T.PATIL, ADVOCATE, FOR R.1 R.2 AND R.7, R.3, R.4, R.5, R.6 AND R.8 – NOTICE SERVED.) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 7.8.2015, PASSED IN R.A.NO.46/2013, ON THE FILE OF II ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD, AND THE JUDGMENT AND DECREE DATED 28.11.2012, PASSED IN FDP NO.11/2003, ON THE FILE OF III ADDL. SENIOR CIVIL JUDGE AND CJM, DHARWAD, ETC.,. 4 THIS APPEAL COMING ON FOR FINAL DISPOSAL AT THE STAGE OF ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT This second appeal is by the defendants 1 to 5 in FDP No.11/2003, on the file of III Addl. Senior Civil Judge and CJM, Dharwad. 2. Admittedly the proceedings in FDP No.11/2003 was initiated for drawing up of final decree based on the judgment and decree passed in O.S.No.127/1993, on the file of III Addl. Senior Civil Judge, Dharwad, where the aforesaid suit was filed for the relief of partition by one Sri Ranganagouda Patil, seeking 1/8 th share in suit schedule property. In the said suit the defendants 1 to 6 are his brothers, 7 th and 8 th defendants are his sisters and 9 th defendant was the mother and 10 th defendant was a formal party for the reason that she was wife of plaintiff. 5 3. It is seen that the suit for partition was allowed by judgment and decree dated 16.11.2002 awarding 1/8 th share to plaintiff in the said suit and 1/8 th share each to defendants 1 to 6 and 1/8 th share to defendant no.9 the mother of plaintiff and defendants 1 to 8 and widow of late Veeranagouda Patil, who was the propositus of the family. None of the children had filed appeal against the judgment and decree passed in O.S.No.127/1993. However the 9 th defendant widow of propositus Veeranagouda Patil preferred an appeal in R.A.No.138/2012 i.e., after 10 years from the date of preliminary decree was passed, which came to be dismissed. It is seen that in the meanwhile the plaintiff in the original suit initiated final decree proceedings in FDP No.11/2003 on the file of III Addl. Senior Civil Judge, Dharwad, for effecting partition of suit properties by metes and bounds. 6 4. Admittedly the suit schedule property altogether measures 67 acres 7 guntas spread over in different survey numbers and located in different places. In that property the plaintiff had 1/8 th share, defendants 1 to 6 had 1/8 th share each and 9 th defendant had 1/8 th share. It is seen, that during the pendency of FDP proceedings the 9th defendant in the original suit died. It is seen that in the said proceedings the Taluka Surveyor was appointed as Court commissioner, who has filed his report in recommending allotment of entire Block No.5 measuring 8 acres 13 guntas in favour of plaintiff and distributing other properties in favour of defendants 1 to 6 and 9 in the original suit. The same was accepted by the FDP Court and the final decree was passed, which was subject matter of challenge by defendants 1 to 6 in the original suit in R.A.No.46/2013, wherein the 9 th defendant was arraigned as 7 th respondent. The said appeal also came to be 7 dismissed confirming the final decree drawn by the FDP Court, which is under challenge in this proceedings. 5. Admittedly the landed properties which are schedule A properties in the original suit are totally 6 items, in which Block No.5 measures 8 acres 13 guntas; Block No.391 which is at Sl.No.2 measures 28 acres 25 guntas; Block No.397 which is at Sl.No.3 measures 1 acre 27 guntas; Block No.196 which is at Sl.No.4 measures 3 acres 15 guntas; Block No.403/2 which is at Sl.No.5 measures 12 acres 23 guntas; and Block No.403/1 which is at Sl.No.6 also measures 12 acres 23 guntas. According to appellants herein, the location of other properties i.e., the properties at Sl.Nos.2 to 6 are having more or less same value and their location is also similar to each other except the property, which is in Block No.5 which measures 8 acres 13 guntas. According to the 8 appellants the same is situated adjacent to the highway having NA potentiality. 6. It is their grievance that in spite of objection being raised in allotting entire extent in Block No.5 to one person, the Court commissioner has recommended the partition in such a manner that the entire 8 acres 13 guntas in Block No.5 should be given to the original plaintiff towards his 1/8 th + 1/9 th of 1/8 th share in the suit schedule property. The 1/8 th share is what was allotted to the plaintiff in the original suit and 1/9 th of 1/8 th share is the share which has accrued to them due to death of 9 th defendant for whom 1/8 th share was given. Out of that share the plaintiff would get one share, defendants 1 to 6 would get one share each i.e., six shares and defendants 7 and 8 the two daughters of defendant no.9 would also get one share each 9 from out of the share in 1/8 th share, allotted to deceased 9 th defendant. 7. In that view of the matter, the plaintiff having 1/8 th + 1/9 th of 1/8 th share only, the allotment of entire 8 acres 13 guntas in Block No.5 is erroneous. More particularly when it is stated that the land has got NA potentiality. Admittedly there being seven sharers, this 8 acres 13 guntas could be conveniently divided among all the sharers so that each one of them would get a portion of land which is in NA potentiality region. So far as the remaining lands are concerned, in which the plaintiff in the original suit could be given the remaining share which the Courts below ought to have rightly considered in the facts and circumstances of the case. 8. In that view of the matter, at the stage of admission of this appeal itself this matter is disposed of with a clear direction that the FDP 10 Court should reconsider allotment of shares to each of the parties to the proceedings in the manner, where instead of allotting entire Block No.5 to the plaintiff in the original suit, which would be a lop-sided division benefiting only one party to the suit and depriving right of securing a share in the said property to other parties which is NA potential land. 9. Accordingly this appeal is disposed of in setting aside the final decree dated 28.11.2012, passed in FDP No.11/2003, on the file of III Addl. Senior Civil Judge and CJM, Dharwad, and as well as the judgment dated 7.8.2015 passed in R.A.No.46/2013, on the file of II Addl. District Court, Dharwad. The proceedings in FDP No.11/2003 is referred back to the FDP Court by reopening the same with a direction to reconsider allotting share to each one of the parties in Block No.5 and other properties in the aforesaid 11 manner. Accordingly this second appeal is disposed of. 10. In the remanded matter, the final decree Court shall rearrange the shares to be allotted to each of the parties within four months from the date of receipt of records.