SINCE DECEASED BY HIS LRS v. MAHARASHTRA STATE-402201
Case at a glance
- Decided
- 09 Dec 2024
- Bench
- SREENIVAS HARISH KUMAR, T G SHIVASHANKARE GOWDA
Outcome
Allowed
Appeal is allowed
Provisions considered
Judgment
(BY SRI A.R. PATIL AND SRI S.G. KADADAKATTI, ADVOCATES) AND: U.F.M. VENKATARAY S/O. BABANI BAIKERIKAR SINCE DECEASED BY HIS LRS, …APPELLANT NINGAPPA PATTIHAL Location: HIGH COURT OF KARNATAKA
U.F.M. SRI. GOVIND S/O. VENKATRAYA BAIKERIKAR, AGE: 65 YEARS,
SRI. SANJAYA S/O. VENKATRAYA BAIKERIKAR AGE: 55 YEARS,
SMT. SHYAMALA W/O. ASHOK ANVEKAR AND D/O. VENKATRAYA BAIKERIKAR AGE: 70 YEARS, - 2 - NC: 2024:KHC-D:17887-DB RFA No. 100455 of 2019
SMT. SUREKHA W/O. PRAKASH VERNEKAR AND D/O. VENKATRAYA BAIKERIKAR AGE: 60 YEARS, ALL ARE R/O: HALAGA VILLAGE, C/O. UFM SRI. GURUDAS S/O. VENKATRAYA BAIKERIKAR, R/O: HALAGA VILLAGE, KARWAR TALUK-581328.
SMT. MEERABAI @ LAXMIBAI W/O. VISHNU ANVEKAR, C/O. CHANDRAKANT ANVEKAR, 1834, A WARD, TARABAI ROAD, AGE: 86 YEARS, OCC: HOUSEHOLD DUTIES, C/O. V.K. ANVEKAR, RUDHI, 46, BLOCK NO.11, NEAR RANKALA AMBI TANK, KOLHAPUR TOWN, MAHARASHTRA STATE-416003.
SMT.PREMABAI @ NIRMALABAI W/O. VITHAL SHET, AGE: 83 YEARS, R/O: PATIL GALLI, HOUSE NO.575, BELGAUM TOWN, DIST: BELAGAVI, NOW R/AT: AVERSA, ANKOLA, DIST: U.K-581316. MANOHAR S/O. BABANI BAIKERIKAR SINCE DECEASED BY HIS LRS,
MEERABAI @ SUDHABAI W/O. MANOHAR BAIKERIKAR, AGE: 68 YEARS, OCC: HOUSEHOLD, R/O: HABBUWADA, KARWAR-581301. - 3 - NC: 2024:KHC-D:17887-DB RFA No. 100455 of 2019
BHARATI W/O. AZAD VERNEKAR AGE: 58 YEARS, OCC: HOUSEHOLD, R/O: INDRADHANUSHYA, "A" BUILDING, BORDA FATRODA, MADAGAON, GOA-403602.
ANIL S/O. MANOHAR BAIKERIKAR AGE: 53 YEARS, OCC: BUSINESS, R/O: HABBUWADA, KARWAR-581301. SMT.LEELABAI @ RATNAVATI W/O. MADHUKAR KUDALKAR, SINCE DECEASED BY HER LRS,
UFM SRI.SUNIL S/O. MADHUKAR KUDALKAR, AGE: 45 YEARS,
SMT.MANGALA D/O. MADHUKAR KUDALKAR AGE: 45 YEARS,
SMT. MANJULA D/O. MADHUKAR KUDALKAR AGE: 44 YEARS,
SMT. SHAKU D/O. MADHUKAR KUDALKAR AGE: 43 YEARS,
SMT. MAMTA D/O. MADHDUKAR KUDALKAR AGE: 40 YEARS,
SMT.SHANTA D/O MADHUKAR KUDALKAR AGE: 39 YEARS, ALL ARE R/O: 7TH CROSS, PADMANABHANAGAR, POST: NANDANAGADDA, KARWAR, C/O. UFM SRI. SUNIL S/O. MADHUKAR KUDALKAR, R/O: 7TH CROSS, PADMANABHA NAGAR, POST: NANDANAGADDA, KARWAR-581304. - 4 - NC: 2024:KHC-D:17887-DB RFA No. 100455 of 2019
TUKARAM S/O. BABANI BAIKERIKAR AGE: 77 YEARS, OCC: JEWELRY BUSINESS, R/O: HALGA, TQ: KARWAR-581328.
SMT. NALINI @ VASUDHA W/O. VASANT VERNEKAR, AGE: 73 YEARS, OCC: HOUSEHOLD DUTIES, C/O. VASANT RAMA VERNEKAR, TEACHER, CHAR RASTA, CANACONA, GOA-403702.
SMT. KUNDABAI @ HEMABAI W/O. RAMESH ANVEKAR, AGE: 71 YEARS, OCC: HOUSEHOLD DUTIES, C/O. RAMESH Y. ANVEKAR, ENGINEER IN TOURISM DEPARTMENT, KALAPUR, BAMBOLIM VASUDHA COLONY, PANJIM, GOA-407202.
ASHOK S/O. BABANI BAIKERIKAR AGE: 69 YEARS, OCC: MEDICAL OFFICER, GOVERNMENT HOSPITAL, ALIBAGH RAYAGHAD DISTRICT, MAHARASHTRA STATE-402201. …RESPONDENTS (BY SRI. SURESH S. BHAT, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO, SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 25-04-2019 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE, KARWAR IN F.D.P.NO.9/2008 BY ALLOWING THIS APPEAL AND ETC. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR AND THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA - 5 - NC: 2024:KHC-D:17887-DB RFA No. 100455 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR) This appeal is preferred by the petitioner in FDP No.9/2008 on the file of Principal Senior Civil Judge, Karwar. The preliminary decree passed in O.S.No.87/1989 on the file of Principal Senior Civil Judge, Karwar was put into final decree proceedings in which Commissioner was appointed. He gave a report based on which the FDP Court ordered for drawing up final decree. Being not satisfied with the final decree, the petitioner has approached this Court.
2. Heard Sri A.R.Patil learned counsel for the appellant and Sri Suresh S.Bhat learned counsel for respondents No.1 to
3. It is the submission of Sri A.R.Patil that the FDP Court has blindly accepted the Commissioner’s report without applying mind in the sense that there was no opportunity for the petitioner to raise objection for the measurements made by the Commissioner. He also submitted that the distribution of the properties does not appear to be equitable and the interest of the petitioner has been totally ignored. The ground realities - 6 - NC: 2024:KHC-D:17887-DB RFA No. 100455 of 2019 have not been considered while making allotment of shares and moreover the Commissioner himself made allotment of shares which power he did not have.
4. On the other hand, Sri Suresh S.Bhat submits that allotment of shares has properly been made and there is no infirmity. He submits that the Commissioner was a surveyor and having conducted the survey, he drew up a sketch indicating the measurements of the share of every party. The impugned order shows application of mind and therefore appeal deserves to be dismissed.
5. We have perused the impugned order and also all the proceedings drawn by the Commissioner. Having perused the Commissioner’s report, we may at the outset state that apparently the Commissioner appears to have exceeded his jurisdiction. His duty was just to measure the land and bifurcate the properties in accordance with the preliminary decree. Instead he had gone to the extent of making allotment of shares to the parties which power can be exercised by the Court alone. Secondly we notice that the total extent of the property available for partition does not match with the - 7 - NC: 2024:KHC-D:17887-DB RFA No. 100455 of 2019 measurements shown by the Commissioner in his report. There is mismatch of the extent of lands. The allotment of shares made by the Commissioner should not have been accepted by the court without hearing the parties. This kind of application of mind being not forthcoming, we are of the opinion that entire Commissioner report has to be rejected and consequently the matter requires to be remanded to the FDP Court for taking measurements once again in accordance with the preliminary decree and allotting the shares by working out equities by giving opportunity to the parties. In this view the following: ORDER Appeal is allowed. Order dated 25.04.2019 in FDP No.9/2008 is set aside. The matter stands remanded to the Court of Principal Senior Civil Judge, Karwar. The Trial Court shall appoint a Commissioner and after obtaining the report, the Trial Court shall itself allot the shares to the parties by calling objections or giving opportunity to the - 8 - NC: 2024:KHC-D:17887-DB RFA No. 100455 of 2019 parties to have their say on the Commissioner’s report. All the parties shall appear before the Court on 18.01.2025. Sd/- (SREENIVAS HARISH KUMAR) JUDGE Sd/- (T. G. SHIVASHANKARE GOWDA) JUDGE CLK LIST NO.: 1 SL NO.: 26
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Appeal is allowed
Which statutory provisions did this judgment involve?
Code of Civil Procedure, 1908 — s. 96.
Which court decided this case, and when?
Karnataka High Court, on 09 Dec 2024. The bench was SREENIVAS HARISH KUMAR, T G SHIVASHANKARE GOWDA.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.