Malleshaiah vs Sri V.M. Beerappa and Others

Mohan Shantanagoudar

This second appeal by the third defendant, who was unsuccessful before the Courts below. Respondent No. 1 herein filed O.S. No. 81/1986 for partition and separate possession of certain properties. He claimed 1/3rd share in all the suit properties. The Trial Court decreed the suit by its judgment and decree dated 24.4.1993. The judgment and decree passed in O.S. No. 81/86 is confirmed by the first appellate Court in RA. No. 10/1993 on 13.8.1998. This Court also confirmed the judgments of the Courts below in RSA. No. 860/1998 on 20.2.2002. Thus, it is clear that 1/3rd share is granted in favour of the plaintiff by all the three Courts. Thereafter, final decree proceedings are initiated by the first respondent herein by filing FDP. No. 2/1998. In the final decree proceedings, the Commissioner was appointed. He submitted the report along with the sketch. The same was accepted by the Trial Court and final decree was drawn. Questioning the final decree, the appellant herein who was the third defendant, filed RA. No. 65/2007 before the Fast Track Court, Ramanagaram. Same came to be dismissed on 19.2.2011. Against the concurrent findings, this appeal is filed.

Learned counsel for the appellant submits that the Commissioner is not justified in ignoring the fact that the appellant herein is running a hotel and is having a house, which;: are adjoining each other while allotting the area of 1 acre 23 guntas in favour of the plaintiff. In other words, it is the contention of the appellant that the portion of hotel and house which are occupied by the third defendant-appellant herein ought to have been allotted in favour of the appellant on the ground of equity. The said submission is opposed by the learned counsel for respondent No. 1 by contending that the appellant herein is one of the sons of Madaiah and Madaiah''s group has been allotted similar area of 1 acre 23 guntas in the very Sy. No. 6/1 and the area which is allotted to Madaiah also contains 3 houses, one hotel and a shop. He further submits that the property allotted in favour of the appellant''s group is a corner land abutting Kuvempu College Ground as well as Bangalore-Mysore Highway. The Commissioner has visited the spot and has tried to allot the properties on equitable basis. The property which is allotted in favour of Madaiah''s children has also got house, shop and hotel. So also the property of the plaintiff has got house and shops apart from hotel. Thus, it is not open for the appellant to contend that he wants one more hotel which is allotted in favour of the first respondent herein. Even otherwise, this Court sitting in second appeal will not normally interfere with the concurrent findings arrived at by the Courts below in the judicial discretion exercised by them. The Commissioner''s report is accepted by the Trial Court and the same is confirmed by the first appellate Court and final decree is drawn accordingly. Hence, no interference is called for.

No question of law, much less substantial question of law arises for consideration in this appeal. Accordingly, appeal fails and the same stands dismissed at the stage of admission itself.