Mahadev vs Shrikant and Others

B.V. Nagarathna, J.—1. This Second Appeal is by the defendants in O.S. No. 239/1989. They have assailed judgment dated 01.01.2011 passed in R.A. No. 175/2009, which arose from FDP. No. 21/2001. By the impugned judgment, order dated 16.04.2009, passed in FDP. 21/2001, by the Court of Principal Civil Judge (Sr. Dn), Belgaum, has been confirmed.

Briefly stated, the facts are that the 1st respondent-plaintiff (original plaintiff) had filed O.S. No. 239/1989 before the Principal Senior Civil Judge, seeking relief of partition and separate possession of the suit schedule properties. The said suit was dismissed, against which, RSA. 697/97 was filed before this Court. During the pendency of the appeal, defendant-1 died. The First Appeal was allowed and partition and separate possession of the suit properties was granted to the plaintiff who was given 1/9th share in the suit properties, except VPC. No. 37. Special Leave Petition was filed by the defendants before the Hon''ble Supreme Court, which was dismissed. The plaintiff thereafter filed FPD proceedings seeking 1/9th share in the suit properties. In FDP proceedings, two Court Commissioners were appointed for effecting partition of agricultural lands and the house properties respectively. They submitted their respective reports. The Advocate Court Commissioner submitted his report on 28.07.2003 suggesting partition of the house properties. He was also examined as C.W. 3 and cross-examined before the Trial Court. The Trial Court accepted the report of the Court Commissioner in respect of the house properties and rejected Court Commissioner''s report regarding agricultural lands.

Before the Trial Court, the following points were raised:

(1) Whether the proposal for partition submitted by the C.W. 1 can be said to be valid commission report and whether it can be accepted?

(2) Whether report of the court commissioner for partition of the house properties submitted by CW-3 is proper and correct?

(3) What order?

The trial Court answered Point No. 1 in the negative, Point No. 2 in the affirmative and accepted the report of Court Commissioner in so far as house properties was concerned and rejected the report of C.W. 1-the Second Division Surveyor suggesting partition of the landed properties. The Tahasildar was appointed as Court Commissioner who was directed to prepare a proposal for partition in accordance with earlier directions of the Court through any of his technical staff attached to his office and to submit a report to the Trial Court.

Being aggrieved by the acceptance of Court Commissioner''s report in so far as house properties are concerned, the defendants assailed order dated 16.04.2009 passed in FDP. 21/2001 by the trial court in R.A. No. 175/2009. The I Appellate Court on hearing the respective parties framed following points for its consideration:

(1) Whether delay in filing the appeal needs to be condoned?

(2) Whether the appellants/defendants prove that the report of Court Commissioner regarding house property is inequitable and cause hardship to them?

(3) Whether the impugned order is arbitrary, erroneous and warrants any interference by this court?

(4) What order?

It answered Point No. 1 in the affirmative, Point Nos. 2 and 3 in the negative and dismissed the appeal, by condoning the delay in filing the appeal, by judgment dated 01.01.2011.

Being aggrieved by that judgment, the defendants are in Second Appeal before this Court.

I have heard the learned Counsel for the appellant and learned Counsel for Caveator/respondents 2 to 6 and perused the material on record.

It is contended on behalf of the appellant that the courts below were not right in accepting the report of the Court Commissioner in so far house properties are concerned. He contended that the suit schedule properties comprised of three houses bearing VPC. Nos. 571, 389 and 515. That the plaintiff has been allotted a share in VPC. No. 575. That VPC. Nos. 571 and 515 are in possession of defendants. That VPC. No. 389 is a vacant property. The plaintiff''s share in the house property is 1/9 together which would be 1085 sq.ft. While allotting the said extent, the Court Commissioner has opined that the extent of 1085 sq.ft. must be given to the plaintiff in VPC. No. 571 by ignoring the fact that defendants are residing therein. He submitted that VPC. No. 389 could have been granted to the plaintiff and not VPC. 571, as the defendants would be disturbed from their possession of VPC No. 571. He further contended that in VPC. 571, an extent of built-up area and an extent of open space has been given to the plaintiff. Those two extents are not contiguous. This will also affect the enjoyment of the suit properties by the respective parties. It is also submitted that valuation of the house properties was not done by the Court Commissioner in order to arrive at an equitable division of properties between the parties. He contended that both the courts below were not right in accepting the Commissioner Report regarding house properties on account of aforesaid reasons, and that substantial questions of law would arise in this appeal which would call for admission of the matter for a detailed hearing.

Per contra, learned Counsel for the Caveator/respondents 2 to 6, supporting the judgment and order of the courts below by contending that the original plaintiff is none other than one of the sons of propositus Basalingayya Manturgimath. In his suit seeking partition and separate possession, 1/9th share was allotted by this Court in RFA. No. 697/1997. That judgment and decree has attained finality. In FPD proceedings filed by the original plaintiff, subsequently represented by his legal representatives, the Court Commissioner submitted his report regarding house properties. The reason as to why a portion of the built up area and portion of the vacant space in VPC. No. 571 was allotted to the plaintiff was in order to ensure that the plaintiff was allotted 1085 sq.ft. in the house property, which is equivalent to 1/9th share. While doing so, the Commissioner has taken all the aspects of the matter into consideration and has allotted both built-up area and open space so that the plaintiffs would receive built-up area and could utilize open space for future development. That on account of the division made by the Commissioner, there is no disturbance caused to the defendant as such. They can enjoy the rest of VPC. 571, which comprises of built-up area as well as vacant space. Thus, allotment of built-up area and vacant space in VPC. 571 to the plaintiff would in no way cause any hindrance to either parties. She therefore, contended that there has been an equitable division made by the Commissioner and the courts below rightly accepted that report. That, no substantial question of law arises in this appeal and the appeal may be dismissed, in limine.

Having heard the learned Counsel for the parties and on perusal of the records it is noted that dispute between the parties is in a very narrow compass. The trial Court appointed two independent Commissioners for the purpose of dividing the landed properties and house property between the parties. The Trial Court did not accept the report submitted by C.W. 1 with regard to landed properties. A direction was issued for a fresh partition of the said properties. That portion of the order has not been assailed by the defendants. But as far as division of the house properties is concerned, the report submitted by the Court Commissioner has been accepted. As already noted, the original plaintiff and now his legal representatives are entitled to 1/9th share in the house properties which would be 1085 sq.ft.

According to the Court Commissioner, what has been allotted is about 1084 sq.ft. The Commissioner has taken into consideration the three house properties available for division, namely, VPC. Nos. 571, 389 and 515. All these house properties are in possession of the defendants. Therefore, inevitably if any allotment has to be made to the plaintiff by way of metes and bounds, then possession of some portion of house property must be handed over by defendants to plaintiff. Therefore, taking this fact into consideration and taking note of the status, nature and character of the three house properties, the Commissioner has concluded that house bearing VPC. No. 389 could not be allotted to the plaintiff although it is vacant as it measures an extent of 344 Sq.Ft. only and the building thereon is in a dilapidated condition. The Commissioner has noted that VPC. 515 consists of built up area and open space and in the open space defendants have recently put up construction. Therefore, that property also could not be allotted to the plaintiff. What remains is VPC. No. 571, which comprises built-up area as well as open space, almost to an equal extent. The Commissioner has allotted a portion of the built up area and portion of the open space to the plaintiff. By this allotment, the plaintiff as well as other defendants would both be allotted a portion of the built-up area and a portion of the open space. The parties could reside in the built up area and develop the open space in accordance with their needs. It is noted that on the Eastern portion of the house bearing VPC. No. 571, to the extent of 464.72 Sq.Ft and the backyard or open space measuring 12 feet East-West and 51 feet North-South, touching Kaval Pet has been allotted to the plaintiffs.

The I Appellate Court has considered the Commissioner Report in detail and has given reasons as to why the said report has been rightly accepted by the Trial Court. Any allotment of the house properties would inevitably lead to some kind of disturbance for the defendants, in as much as, they have to now give away 1/9th share in the house properties to the plaintiff. But keeping in mind the nature and characteristic of various house properties and considering the extent of disturbance that would be caused to the defendant, the Court Commissioner has thought it fit that in VPC. 571 there must be division of the property by metes and bounds so that 1/9th share is allotted in that property to the plaintiff. This is having regard to the fact that VPC. 571 consists of built up area and open space and respective parties may enjoy both built up and open space, even though 1/9th share is allotted to the plaintiff in that portion. Therefore, the judgment of the I Appellate Court confirming the acceptance of the report of the Commissioner with regard to the division of the house property by the trial court is just and proper.

Learned Counsel for the appellant, however, contended that the division is not equitable. There has been no valuation of the house properties made and that defendants are residing in VPC. No. 571 and now on account of 1/9th share of that house property being allotted to the plaintiffs, it would cause disturbance to them. As already noted, any carving out of 1/9th share to the plaintiff is from the possession of the suit properties in the hands of the defendants. The division is inevitable. It cannot be termed as disturbance to their possession. By the division made by the Court Commissioner, in fact, least disturbance is caused to the defendants in so far as VPC No. 571 is concerned. Therefore, I do not find any infirmity in the judgment of the I Appellate Court confirming the order of the Tria Court passed in FDP. No. 21/2001. In my view, no substantial questions of law arises in this appeal as the division of the plaintiff''s share in VPC. No. 571 is on equitable basis and keeping in mind the future development of the said property by the respective parties and also the enjoyment of the built-up portion in the said house.

Therefore, the appeal is dismissed.

Parties to bear their respective costs.

Office to transmit the Original records forthwith to the Court of Principal Civil Judge (Sr.Dn), Belgaum, forthwith. The Trial Court to proceed with the FDP proceedings in accordance with law and in an expeditious manner.

Although this Second Appeal is dismissed and all the parties have not been served in this appeal, nevertheless, appellants herein and respondents 2 to 6 are directed to appear before the Trial Court on 12.02.2016. The trial court to proceed in the FDP proceedings in accordance with law.

In view of the dismissal of the appeal, Misc. Cvl. No. 105930/11 for stay is also dismissed.