Madhukar S/O Babani Baikerikar v. U.F.M. Venkataray S/O Babani Baikerikar

( ( ( ( IN(THE(HIGH(COURT(OF(KARNATAKA,(DHARWAD(BENCH(

TH DATED(THIS(THE(5 (DAY(OF(DECEMBER,(2024( PRESENT( THE(HON'BLE(MR.(JUSTICE(SREENIVAS(HARISH(KUMAR( (AND(( (THE(HON'BLE(MR.(JUSTICE(T.(G.(SHIVASHANKARE(GOWDA( REGULAR(FIRST(APPEAL(NO.(100455(OF(2019(( (

BETWEEN:(( ( MADHUKAR,S/O.,BABANI,BAIKERIKAR,,

AGE:,76,YEARS,,OCC:,BUSINESS,, HOTEL,ASHOK,,KARWAR-581301., …APPELLANT,

, (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,,

( Digitallytisigned by0VISHAL NINGAPPA 1., U.F.M.,SRI.,GOVIND, PATTIHAL Location:0HIGH COURT0OF S/O.,VENKATRAYA,BAIKERIKAR,, KARNATAKA Date: 2024.12.12 AGE:,65,YEARS,, 12:25:180+0530 ,

2., SRI.,SANJAYA,S/O.,VENKATRAYA,BAIKERIKAR, AGE:,55,YEARS,, ,

3., SMT.,SHYAMALA,W/O.,ASHOK,ANVEKAR, AND,D/O.,VENKATRAYA,BAIKERIKAR, AGE:,70,YEARS,, , , , ( ( ( (

4., 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., ,

5., 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., ,

6., 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,, , ,

7., MEERABAI,@,SUDHABAI, W/O.,MANOHAR,BAIKERIKAR,, AGE:,68,YEARS,,OCC:,HOUSEHOLD,, R/O:,HABBUWADA,,KARWAR-581301., , ( ( ( (

8., BHARATI,W/O.,AZAD,VERNEKAR, AGE:,58,YEARS,,OCC:,HOUSEHOLD,, R/O:,INDRADHANUSHYA,, "A",BUILDING,,BORDA,FATRODA,, MADAGAON,,GOA-403602., ,

9., 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,10., S/O.,MADHUKAR,KUDALKAR,, AGE:,45,YEARS,, ,

11., SMT.MANGALA,D/O.,MADHUKAR,KUDALKAR, AGE:,45,YEARS,, ,

12., SMT.,MANJULA,D/O.,MADHUKAR,KUDALKAR, AGE:,44,YEARS,, ,

13., SMT.,SHAKU,D/O.,MADHUKAR,KUDALKAR, AGE:,43,YEARS,, ,

14., SMT.,MAMTA,D/O.,MADHDUKAR,KUDALKAR, AGE:,40,YEARS,, ,

15., SMT.SHANTA,D/O,MADHUKAR,KUDALKAR, AGE:,39,YEARS,, , THALL,ARE,R/O:,7 ,CROSS,, PADMANABHANAGAR,, POST:,NANDANAGADDA,,KARWAR,, C/O.,UFM,SRI.,SUNIL,, S/O.,MADHUKAR,KUDALKAR,, THR/O:,7 ,CROSS,,PADMANABHA,NAGAR,, POST:,NANDANAGADDA,,KARWAR-581304., ( ( ( (

16., TUKARAM,S/O.,BABANI,BAIKERIKAR, AGE:,77,YEARS,,OCC:,JEWELRY,BUSINESS,, R/O:,HALGA,,TQ:,KARWAR-581328., ,

17., SMT.,NALINI,@,VASUDHA, W/O.,VASANT,VERNEKAR,, AGE:,73,YEARS,,OCC:,HOUSEHOLD,DUTIES,, C/O.,VASANT,RAMA,VERNEKAR,, TEACHER,,CHAR,RASTA,,, CANACONA,,GOA-403702., ,

18., 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., ,

19., 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, (

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.

¶2Heard Sri A.R.Patil learned counsel for the appellant and Sri Suresh S.Bhat learned counsel for respondents No.1 to

19.

¶3It 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

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.

¶4On 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.

¶5We 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

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 fresh 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 ( ( ( ( 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, ,