Nanarao vs Prahallad and Others

K.N. Phaneendra, J.—Heard the learned Counsel for the petitioner and the respondents.

The petitioner is the decree-holder and the respondents are the Judgment Debtors in Execution Case No. 88/2009 on the file of the Principal Senior Civil Judge, Hubli.

On perusal of the records it is clear that, by virtue of the compromise entered into between the parties in RFA No. 971/2004, the parties have put the said compromise decree for Final Decree Proceedings in FDP No. 2/2005 and in accordance with the same, a Final Decree was drawn and afterwards, execution petition was filed in E.P. No. 88/2009 for apportionment of the properties by meets and bounds in accordance with the compromise decree. The Executing Court has appointed a Commissioner for the purpose of measurement and apportionment of the properties as per the decree and the Commissioner has submitted a report, which was objected by the Decree-Holder on several grounds.

After hearing both the parties, the Executing Court though observed that there are some small irregularities committed by the Commissioner, has held that in respect of other aspects, the Commissioner''s report holds good. Therefore, it accepted the Commissioner''s report and closed the execution petition, as fully satisfied.

Though at the initial stages, the petitioner''s counsel contended with regard to non-issuance of notice to the parties, but ultimately, he submitted before the court that the Commissioner, though executed the warrant in a proper perspective so far as the other properties involved in the case are concerned ie., Sy. No. 15 and 52 and also House property No. 68, but he has not properly measured and demarcated the properties in R.S. No. 10 and also House property No. 67/B.

The learned Counsel brought to my notice the observations made by the Executing Court that the Commissioner has pleaded his ignorance with regard to visiting the property-R.S. 10 and measuring the said land. The doubt arises, as to whether the Commissioner has actually visited the said the property- R.S. No. 10 and demarcated the same by meets and bounds. Though the Survey Sketch produced before the court by the Commissioner shows that the Northern portion of the Property in Sy. No. 10 is fallen to the share of Defendant No. 4 and Southern portion of the property measuring 1 acre 32 guntas is fallen to the share of Defendant No. 2, but the learned Counsel contended that in view of the Commissioner did not go to the spot and demarcate the same, the sketch itself is not sufficient because on the basis of the sketch once again the parties are driven to the competent authorities by filing necessary application for measurement of the said properties. That could have been avoided by the Executing Court by re-directing the Commissioner to visit property-R.S No. 10 and demarcate the same and allocate properties to be allotted to the share of the respective parties. I have also gone through the sketch pertaining to the house property bearing No. 67/B. The rough sketch prepared by the Commissioner shows that the said property was allocated to Defendant No. 5, Defendant No. 2 and Defendant No. 4. So far as the House property bearing No. 68 is concerned, it was exclusively allocated to Defendant Nos. 5, 2 and 4. But the Commissioner has not specifically mentioned the measurement of the properties allocated to Defendant Nos. 2, 4 and 5. Instead of mentioning the specific measurement, dotted lines are shown in the sketch. Therefore, there is no specific mention as to how much of the properties could be possessed and enjoyed by the parties by getting the khatha changed into their names. Therefore, as rightly contended by the learned Counsel for the petitioner, the property- R.S. No. 10 and the house property bearing Sy. No. 67/B have to be once again re-measured according to the compromise entered into between the parties and boundaries have to be fixed with specific measurements by the Commissioner. So far as the other properties are concerned, learned Counsel for the decree-holder/petitioner has no grievance.

In view of the above facts, I am of the opinion the trial Court without looking into the irregularities with regard to the property bearing RS No. 10 and House Property bearing Sy. No. 67/B, has simply ignored the same holding that the there are some small irregularities in the Commissioner''s report. In my opinion, such things are not small and simple, because it would definitely lead to continuation of the dispute between the parties with regard to the measurement of the properties, unless it is permanently set at rest.

Under the above said circumstances, the order passed by the learned Principal Senior Civil Judge, Hubli, requires to be set aside to certain extent. Hence the following order.

The petition is allowed in part. The order passed by the Principal Senior Civil Judge, Hubli, with reference to Commissioner''s report pertaining to the properties i.e., RS. No. 10 and House property bearing No. 67/B, as mentioned in the compromise petition, is hereby set aside. The other portion of the order is left undisturbed. Consequently, the learned Principal Senior Civil Judge, Hubli, is directed to appoint the same Commissioner if available, if not, other competent person, once again only for the limited purpose of measuring the land bearing R.S. No. 10 and house property bearing Sy. No. 67/B in accordance with the compromise petition entered into between the parties and demarcate the said properties with respect to the shares of the parties by mentioning the specific measurement and boundaries, and report the same to the court and thereafter to pass appropriate order in accordance with law.