Sri.Kudure Thammanna, vs Sri.K.C.Ramaiah

The above appeal is filed challenging the final decree

drawn in F.D.P.No.36/2002 dated 03.08.2016 by the II

Addl. Senior Civil Judge, Kolar, Itinerating at Mulbagal.

The appellants are defendant Nos.1(a) to (e), the 1st

respondent is plaintiff and respondent Nos.2 to 4 are

defendant Nos.2(a), (b) and 3 respectively. Respondent

Nos. 5 and 6 are defendant Nos.b(2) and b(3) before the

trial Court.

The brief facts of the case are as follows:

- K.C.Ramaiah filed O.S.29/1994 before the II Addl.

Senior Civil Judge, Kolar for partition and separate

possession of his half share in the suit schedule properties.

The trial Court by judgment dated 03.04.2002 decreed the

suit in part. The trial Court granted half share to the

plaintiff in suit schedule item Nos.1 to 7, 13 to 17, 20, 24

and 26 to 30.

Aggrieved by the said judgment, the plaintiff filed

R.F.A.No.735/2002 before this Court. In that matter the

1st defendant filed cross-objection No.22/2002 and

23/2002. Apart from that the defendant No.2 and 3

challenged the said preliminary decree in

R.F.A.No.802/2002 before this court.

This Court by common judgment dated 03.11.2009

in the said appeals and cross objections, partly allowed the

appeal of the plaintiff and decreed the suit of the plaintiff

for partition and separate possession of his share in all the

suit schedule properties except suit schedule item Nos.19

and 20.

The 2nd defendant challenged the said judgment

and decree before the Apex Court in Civil Appeal No.7622-

7623/2011 but without any rate of success. Successful

plaintiff filed F.D.P.No.36/2002 before the trial Court

seeking for final decree in terms of the judgment of this

Court in the Regular First Appeal. In the said petition

court appointed an advocate and Tahasildar as

Commissioners to earmark the properties for division. The

advocate Commissioner submitted the report on

26.05.2010. The Tahasildar submitted report on

20.07.2010. The plaintiff filed objections to the said

Commissioners'' report on 02.08.2010. The 1st defendant

also filed objections to the Commissioners'' report on

13.09.2010. The trial Court by overruling the objections

vide order dated 09.09.2015 accepted the Commissioner''s

report.

After such acceptance of the Commissioner''s

report, on 23.09.2015 the 1st defendant filed I.A.No.24

before the trial Court to summon the Court Commissioner

for examination. The trial Court vide order dated

05.10.2015 dismissed the said application. Ultimately, on

03.08.2016, the trial Court has drawn the impugned final

decree.

The appellants/the heirs of the 1st defendant challenge the said final decree in this appeal on the following grounds:

(i) Court Commissioner has neither visited the suit schedule item No.20, the house property nor verified the measurement, therefore the report and the consequential final decree is erroneous.

(ii) Court Commissioner has committed error in his report in partitioning and allotting the suit schedule item No.38 property and the measurements shown in the report are in correct.

(iii) Suit schedule item No.24 property is common burial ground of the family. The Court Commissioner without observing and proposing to reserve the same as common area for all shareholders/LRs partitioned the property, similarly the said property is an area reserved for rain water harvesting as a reservoir. The Commissioner has partitioned the said property which is incorrect.

(iv) The suit schedule item No.33 consists of an area of 2 acres of land reserved for public temple, the

commissioner without observing that has proposed to partition the same which affects the public.

(v) The trial Court wrongly rejected the

application of the appellants to

summon the Commissioner and

overruled the objections to the reports.

This Court heard both sides on the admission of

the matter. Sri Papi Reddy, learned counsel for the

appellants reiterating the grounds of appeal contends that

the trial Court has committed error in accepting the

Commissioners'' report and passing final decree based on

such reports. He contends that the trial Court has

erroneously overruled the objections of the parties on the

Commissioner''s report and rejected his application to

summon the Commissioner, which has affected the rights

of the appellants.

Per contra, Sri V.Vijayashekara Gowda, learned

counsel for respondent No.1 contends that the preliminary

decree passed by the trial Court, as modified by this Court

in R.F.A.No.735/2002, 805/2002 and Cross objection

No.22/2002 and 23/2002, is upheld by the Apex Court in

Civil Appeal No.7622-7623/2011 on 28.07.2016. He

further contends that the litigation is around 25 years old,

and the defendants/appellants with the sole intention to

deprive the decree holder of the final decree are in the

habit of filing such applications and the appeal. He

contends that the appellants, without challenging the Trial

Court''s order of acceptance of the Commissioners'' report

and rejection of their application for summoning the

Commissioner, have filed this appeal reiterating the same

grounds and that therefore this appeal itself is not

maintainable.

At the time of admission of the appeal what is

required to be considered is whether the appellants have

an arguable case. Otherwise, the appeal is not fit for

admission.

The records produced by the parties show that the

suit for partition was decreed as prayed for except the suit

schedule item Nos.12, 18, 19, 21 to 22 and 25 properties.

On the challenge by both the parties, this Court in

R.F.A.No.735/2002 and connected matters allowed the

plaintiffs'' appeal and decreed the suit of the plaintiffs as

prayed for except suit schedule item No.19 and 20 and

modified the preliminary decree accordingly.

The records show that the Civil Appeal No.7622-

7623/2015 filed by the aggrieved defendants against the

judgment of this Court in R.F.A.No.735/2002 and

connected matters came to be dismissed on 28.07.2016.

Thereby, the judgment passed by this Court is confirmed.

Therefore, the challenge of the defendants to the final

decree on the ground of error in description of the suit

properties in terms of the dimensions, etc., fails.

So far as, the correctness of the final decree

under appeal is concerned, it is to be noted that the

drawing of the final decree is only a ministerial act. As

submitted by the appellants themselves, the trial Court

vide order dated 09.09.2015 has overruled the objections

to the Commissioners'' report and accepted the report. The

appellants have not challenged the said order. After

acceptance of the said report, the appellants filed

application to summon the Commissioner for examination.

The trial Court dismissed that application vide order dated

05.10.2015. The appellants have not challenged even that

order. Therefore the orders dated 09.09.2015 accepting

the Commissioners'' report and 05.10.2015 rejecting the

prayer of the appellants to summon the Commissioner

have attained finality.

The order dated 09.09.2015, accepting the

Commissioner''s report is the parent order. The drawing

the decree is only a consequential order. Therefore,

without challenging the said orders, the appellants cannot

maintain the appeal, simply to question the final decree

drawn on 03.08.2016. The Court is satisfied that there is

no arguable case for the appellants in the matter or to

admit the appeal. Hence, the appeal is dismissed.