Full Judgment
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2024 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS SECOND APPEAL NO. 8 OF 2024 (RO) BETWEEN:
1. KERIYAMMA, W/O LATE BASAVANYAPPA, AGED 76 YEARS, HOUSEWIFE,
2. RAMAPPA, S/O BASAVANYAPPA, AGED 54 YEARS, AGRICULTURIST,
3. SOMAPPA, S/O BASAVANYAPPA, AGED 51 YEARS, AGRICULTURIST,
4. SHANMUKHAPPA,
S/O BASAVANYAPPA, AGED 48 YEARS, AGRICULTURIST, Digitally signed by RAMYA D APPELLANTS NO.1 TO 4 ARE Location: HIGH R/O KATHUVALLI VILLAGE, COURT OF KARNATAKA ANAVATTI HOBLI, SORABA TALUK, SHIVAMOGGA DISTRICT - 577 419.
5. SHIVARAYAPPA,
S/O BASAVANYAPPA, AGED 51 YEARS, OCCUPATION: FINANCE, J.C. BADAVANE, ANAVATTI, SORABA TALUK, SHIVAMOGGA DISTRICT - 577 413. …APPELLANTS (BY SRI. MAHESH R UPPIN, ADVOCATE) -2- AND: BASAVANTHAPPA P.B, S/O BASAVANYAPPA KATUVALLI, AGED 71 YEARS, AGRICULTURIST ANAVATTI HOBLI, SORABA TALUK, SHIVAMOGGA DISTRICT - 577 419. …RESPONDENT (BY SRI. R.B. DESHPANDE, ADVOCATE) THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.09.2023 PASSED IN RA NO.10062/2022 ON THE FILE OF V ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA, SITTING AT SAGAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 4.12.2017 PASSED IN OS NO.52/2016 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, SORABA., AND THE MATTER IS REMANDED BACK TO THE SENIOR CIVIL JUDGE AND JMFC, SORABA WITH A DIRECTION TO DISPOSE OFF THE SUIT AS PER LAW WITHIN 3 MONTHS FROM THE DATE OF RECEIPT OF ORDER.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
The appeal is filed by the defendants calling in question the order passed in R.A. No.10062/2022 dated 16.09.2023 by the Court of the V Addl. Dist. & Sessions Judge, Shivamogga, Sitting at Sagar, whereby the
judgment and decree passed in O.S. No.52/2016 dated
-3- 04.12.2017 by the Court of the Senior Civil Judge & JMFC- Court, Soraba, is set aside.
2. The ranks of the parties are stated as before the trial Court for easy reference and convenience.
3. The plaintiff has filed suit for partition and
separate possession in respect of the suit schedule 'A' and 'B' properties. The trial Court has decreed the suit in terms below: "The suit of the plaintiff is partly decreed with proportionate costs. Plaintiff is entitled for 7/36th shares and for separate possession in the suit properties as follows:
In A schedule plaintiff is entitled for 7/36th share in sy no 62 measuring 10 acres 62 guntas, plaintiff is entitled for 7/36th share in item no 2 ie sy no 246 measuring 2 acres 8 guntas, 7/36th share in item no 3 ie sy no 258/1 only in 31 guntas standing in name of Basavanyappa. In B schedule properties plaintiff is entitled for 7/36th share in Khaneshumari no 60 and 27 P only.
Defendant no 1 is entitled for 1/36th shares only in above stated properties only whereas defendant no -4- 2 to 5 are also entitled for 7/36th shares each in the above stated suit schedule properties."
4. Being aggrieved by it, the plaintiff has filed
Regular Appeal before the First Appellate Court. The only ground urged before the First Appellate Court is regarding correction of extent of land in Sy. No.62 measuring 10.02 guntas mentioned in item No.1 in schedule 'A' property but the trial Court has committed an error by stating that the said extent of land is 10.62 guntas which is not correct. This could have been rectified by fling an application under Section 152 of CPC but the plaintiff has preferred Regular Appeal before the First Appellate Court so far as correction of extent of land is concerned. The First Appellate Court itself could have rectified the extent of land by stating that the land in Sy. No. 62 is measuring 10.02 guntas of land but not 10.62 guntas of land but instead of that set aside the entire judgment and decree passed by the trial Court and remanded the case to the trial Court. The approach of the First Appellate Court is not correct. When the only question before the First Appellate Court regarding the -5- correction of extent of land, the First Appellate Court itself could have very well rectified the error committed by the trial Court but has committed an error by remanding the case by setting aside the entire judgment and decree of the trial Court, which is not correct. Therefore, the remand
order passed by the First Appellate Court is not correct as
the approach of the First Appellate Court is perfectly erroneous.
6. Therefore, the only point of contraversy
involved is making correction of extent of land in Sy.No.62 mentioned in item No.1 in schedule 'A' property. The extent of land in Sy.No.62 is 10.02 guntas but not 10.62 guntas of land. Therefore, hereby it is corrected the extent of land is 10.02 guntas but not 10.62 guntas of land. Accordingly, the decree in the trial Court is corrected. Therefore, the order passed by the First Appellate Court by remanding the case is set aside by confirming the
judgment and decree passed by the trial Court with
correction that land in Sy. No.62 measuring 10.02 guntas -6- only. The trial Court shall draw decree by mentioning an extent of land in Sy. No.62 measuring 10.02 guntas only.
7. It is submitted that the extent of allotment of share by the trial Court in the suit is not correct. Therefore, prays for correct allotment of share as per the
judgment of the Hon'ble Apex Court in the case of
Vineeta Sharma vs. Rakesh Sharma & Ors. reported in (2020)9 SCC 1 (Vineeta Sharma's case). Though the trial Court could not be found fault with while decreeing the suit on 04.12.2017 by following the prevailing law at that point of time but the parties are entitled for allotment of share as per Vineeta Sharma's case. Therefore, the parties in the suit need not file one more suit but it can be rectified in Final Decree Proceedings by both the parties. Therefore, the Final Decree Proceedings Court is directed to make allotment of share as per the principles of law laid down in the Vineeta Sharma's case and proceed further as per the law by division of property by metes and bounds. -7- Accordingly, the Miscellaneous Second Appeal is disposed of. SD/- (HANCHATE SANJEEVKUMAR) JUDGE KA List No.: 1 Sl. No.: 22 CT: BHK