Shyamala vs Saraswathi and Others

P.D. Waingankar, J.—1. Both these appeals are arising out of common judgment and decree dated 13.3.2015 in R.A. No. 42/2014 and R.A. No. 43/2015 on the file of IV Addl. District & Sessions Judge, Dakshina Kannada, Mangalore.

The brief facts which gave rise to these appeals are as under:-

The appellant-Shyamala was defendant No. 1 in O.S. No. 28/2001 on the file of I Addl. Sr. Civil Judge, Mangalore, a suit for partition filed by the respondent No. 1-Saraswathi, respondent No. 2-Seetha, respondent No. 3-Yamuna the plaintiff Nos. 1 to 3. Respondent No. 4 Pushpa and respondent No. 5-Vittala Shetty, respondent No. 6-Lokayya Shetty were defendants Nos. 2 to 4 in the suit. By judgment and decree dated 28.10.2006, the suit came to be dismissed holding that there was earlier oral partition under which the suit schedule properties were allotted to the share of appellant-defendant No. 1. The plaintiffs preferred R.F.A. No. 300/2007 before this Court. By judgment and decree dated 8.9.2011, RFA was allowed Suit came to be decreed granting 1/7th share each to the plaintiffs and the defendants. The plaintiffs initiated final decree proceedings in FDP No. 6/2012 on the file of I Addl. Senior Civil Judge, Mangalore for partition and separate possession of their respective share by metes and bounds. A Commissioner was appointed for partition of the properties both landed properties and house properties. The Commissioner inspected the suit schedule properties in the presence of parties to the Suit alongwith surveyor, who measured the landed properties and divided into 7 shares. A sketch was prepared showing the shares allotted to the plaintiffs and defendants. The Commissioner submitted his report to the Court with survey sketch. The plaintiffs as well as defendant No. 1 filed their objections to the Commissioner''s report. The Court over-ruled the objections filed by the appellant/defendant No. 1 and upheld the objections raised by the plaintiffs and ordered to draw final decree in terms of the Commissioner''s report. Aggrieved by the acceptance of Commissioner''s report and drawing of final decree, defendant No. 1 Shyamala preferred R.A. No. 42/2014 and the plaintiffs preferred R.A. No. 43/2014 against the rejection of their claim by the Commissioner while granting the final decree. Both the appeals were clubbed together and by common judgment and decree dated 13.3.2015 dismissed R.A. No. 42/2014 filed by defendant No. 1 Shyamala was dismissed and R.A. No. 43/2014 filed by the plaintiffs was partly allowed by modifying the decree restricting the partition/division of two houses out of 3 houses excluding house bearing Door No. 2-132/2 which is in possession of plaintiff No. 1. The Commissioner was directed to effect the division of only two houses afresh or value the houses. Aggrieved by the dismissal of R.A. No. 42/2014, defendant No. 1 Shyamala preferred RSA No. 725/2015 and aggrieved by partly allowing R.A. No. 43/2014, she filed RSA No. 737/2015. Since both these appeals are arising out of common judgment and decree passed in R.A. No. 42/2014 and R.A. No. 43/2014, these appeals are disposed of by this common judgment.

Upon hearing both the learned counsel, the following substantial question of law is raised in both the appeals:-

Whether the First Appellate Court is justified in modifying the decree and ordering division of two houses out of three houses, contrary to the Commissioner''s report and pleadings of the parties?

Heard both the learned counsel appearing for the parties on the substantial question of law raised. Perused the records.

The main submission of the learned counsel appearing for appellant-defendant No. 1 in both the appeals is that by the common impugned judgment and decree, the First Appellate Court has modified the final decree so as to exclude the house bearing Door No. 2-132/2 which is in possession of respondent No. 1/plaintiff No. 1, though the preliminary decree passed by this Court very clearly speaks about the partition of all the three house, by metes and bounds and allotment of 1/7th share to each of the plaintiffs and the defendants. His further argument is that out of 96 cents of land allotted to respondent No. 5 Vittala Shetty in Sy. No. 6/5 and Sy. No. 6/6, 35 cents of land has been encroached by third party since long and thereby the respondent No. 5 is precluded from enjoyment of 35 cents of land. Further, it is submitted that though the Commissioner was made aware of this fact when he visited the spot, the Commissioner has not taken into consideration the same, the Commissioner ought to have divided the landed properties excluding 35 cents of land encroached by third parties. Yet another submission made by learned counsel appearing for the appellant/defendant No. 1 is that 30 cents of land allotted to the share of the appellant/defendant No. 1 is under acquisition for National Highway and therefore the partition should have been effected by keeping aside 30 cents of land which is the subject matter of acquisition for National Highway. Hence, for all these reasons, the learned counsel for the appellant has sought to set-aside the judgment and decree passed in both the appeals and also the final decree and direct the Commissioner to redo the partition taking into consideration the aforesaid objections raised by the appellant.

On the other hand, the submission of the learned counsel for the respondents-plaintiffs is that except the objections as to the exclusion of house bearing Door No. 2-132/2 from partition in the impugned order, other two objections raised by the learned counsel for the appellant in these appeals are not tenable. Respondent No. 5 Vittala Shetty did not file objections to Commissioner''s report, so also appellant/defendant No. 1 filed objections to Commissioner report contending that 30 cents of land out of share allotted to her is under acquisition for National Highway.

It is borne out from the records that RFA No. 300/2007 was allowed and preliminary decree was passed granting 1/7th share to each of the parties and division of the same by metes and bounds. The decree became final. The final decree proceedings were initiated in FDP No. 6/2012, a Commissioner was appointed, he visited the suit schedule properties alongwith surveyor and parties to the suit. He prepared the sketch with the help of surveyor showing the division of properties and share to be allotted to the parties. Both the appellant-defendant No. 1 and plaintiffs filed objections to the Commissioner''s report. The objections were over-ruled, the Commissioner report was accepted as it is and a final decree was ordered to be drawn. Against the acceptance of report, the defendant No. 1 preferred R.A. 42/2014 and plaintiffs preferred R.A. 43/2014. The First Appellate Court dismissed R.A. 42/2014 filed by the appellant/defendant No. 1 while partly allowed R.A. 43/2014 filed by the plaintiffs and ordered for modification of final decree so as to exclude the house bearing Door No. 2-132/2 from partition which is in possession of plaintiff No. 1/respondent No. 1. Aggrieved by the judgment passed in both the appeals, the appellant-defendant No. 1 preferred these appeals.

From the common judgment and decree passed in R.A. No. 42/2014 and 43/2014, it is evident that the final decree has been modified so as to exclude house bearing Door No. 2-132/2 from partition. It is contrary to preliminary decree. It is not in dispute that there are in all three houses bearing Door No. 2-132/1 measuring 650 sq. ft. which is in possession of Lokayya Shetty-defendant No. 4, house bearing door No. 2-132/2 measuring 860 sq. ft. in occupation of plaintiff No. 1 Smt. Saraswathi and house bearing Door No. 2-132/3 measuring 1070 sq. ft. in occupation of defendant No. 1 Shyamala and her brother Vittala Shetty. All the three houses have been divided by the Commissioner as could be seen from sketch appended to Commissioner''s report. But without any basis, the First Appellate court has modified the final decree so as to exclude house bearing door No. 2-132/2 in occupation of plaintiff No. 1 from partition which is not in letter and spirit of the preliminary decree passed.

Sofar as 30 cents of land proposed for acquisition out of land properties allotted to the appellant for National Highway, the objections is not tenable, since the appellant is entitled for the entire compensation to be determined and awarded by the Land Acquisition Officer. No one other than defendant No. 1 shyamala is entitled to get the entire compensation awarded. It is definitely beneficial and in the interest of defendant No. 1. Regarding 35 cents of land said to have been encroached upon by the third parties out of 90 cents of land allotted to Vittala Shetty, objections were not filed to the Commissioner''s report by Vittala Shetty, nor the Commissioner''s report makes mention about encroachment of 35 cents of land by third party. Even if some portion of the land allotted to him is encroached upon by the third party, it is open for him to take recourse to law for removal of encroachment. If the encroacher is ready to purchase the same, Vittal Shetty is at liberty to sell the same. Merely because there is some encroachment, the partition cannot be effected by keeping aside that area. The said objection is not tenable.

For all these reasons, RSA No. 725/2015 is dismissed.

RSA. No. 737/2015 is allowed-in-part. The judgment and decree dated 13.3.2015 in R.A. Nos. 42/2014 and 43/2014 on the file of IV Addl. District Judge, D.K., Mangalore to the extent of modification of final decree in FDP No. 6/2012 on the file of I Addl. Sr. Civil Judge, Mangalore and confining it to partition of the two houses situated in ''A'' schedule property excluding partition of House bearing Door No. 2-132/2 in occupation of plaintiff No. 1 Saraswathi are hereby set aside. The final decree drawn in terms of Commissioners report in FDP 6/2012 is confirmed. The I Additional Senior Civil Judge, Mangalore, to put the parties in possession of the properties as per final decree.