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Supreme Court of India
Mallanaguoda vs Ninganagouda on 12 March, 2021Author: L. Nageswara Rao
Bench: L. Nageswara Rao, S. Ravindra Bhat
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.805 of 2021
(@ SLP (C) No.2331 of 2016)
MALLANAGUODA AND ORS. …. Appellant(s)
Versus
NINGANAGOUDA AND ORS. …. Respondent (s)
JUDGMENT
L. NAGESWARA RAO, J.
1. Ranganagouda Patil, the deceased husband of Appellant
No.2 and father of Appellant No.1 and 3 filed a suit for partition
and separate possession. The Plaintiff and Defendant Nos.1 to
6 are brothers. Defendant Nos.7 and 8 are their sisters and
Defendant No.9 is their mother. The father of the Plaintiff
Veeranagouda Channappagouda Patil died intestate in the year
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1981. According to the Plaintiff, due to a quarrel between him
and his father, he shifted to Navalur and started working in
Mysore Kirloskar at Sattur 15 years prior to the filing of the suit.
2. The Defendants refuted the claim of the Plaintiff and
contended that there was a partition during the life time of their
ancestor i.e. Veeranagouda. The Defendants pleaded that
the Plaintiff was compensated monetarily in lieu of his share
in the joint family properties and he started residing
separately.
3. By a judgment dated 16.11.2002, the Third Additional
Civil Judge, Dharwad partly decreed the suit. The Plaintiff
was granted 1/8th share of the entire suit properties except
Block No.163. A separate inquiry for mesne profits was
directed to be conducted during final partition in respect of
landed properties and the Tehsildar of the concerned District
was directed to effect partition. In so far as house property is
concerned, a Court Commissioner was directed to be
appointed.
4. The Appellants filed Final Decree Petition No.11 of 2003
under Order 20 Rule 18 read with Section 151 CPC. Pursuant
to an application filed under Order 26 Rule 9 CPC, a
Commissioner was appointed for partitioning the suit
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properties. The Commissioner submitted his report to which
the Defendants filed their objections. The objections of the
Defendants to the report of the Commissioner were rejected
by the Trial Court. The final decree petition was allowed in
part on 28.11.2012. The Plaintiff was granted 1/8 th share in
suit Schedule A properties in suit Block No.5, Harobelawadi
village along with mesne profits of Rs. 4,89,350/-. The
Defendants filed an appeal against the judgment and decree
dated 28.11.2012. The Second Additional District Judge by a
judgment dated 07.08.2015 upheld the judgment and decree
passed in final decree proceedings except in respect of
Schedule D property. Dissatisfied with the judgment of the
First Appellate Court, the Defendants filed a Regular Second
Appeal before the High Court. At the admission stage, the
High Court set aside the judgment of the Trial Court as well
as final decree proceedings and remanded the matter back
to the Trial Court to reconsider allotment of shares to each
one of the parties in Block No.5. Aggrieved by the said
judgment of the High Court, the legal representatives of the
Plaintiff are before this Court.
5. The contention of the Appellant is that the High Court
committed a grave error in interfering with the well-
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considered judgment of the First Appellate Court. Mr. Basava
Prabhu Patil, learned Senior Counsel for the Appellants
submitted that the High Court exceeded its jurisdiction under
Section 100 CPC in setting aside the judgment of the First
Appellate Court. He further submitted that the First
Appellate Court is the final Court on facts and the High Court
ought not to have interfered with the judgment. He also
argued that the High Court reversed the judgment of the First
Appellate Court on the basis of facts contrary to the evidence
on record.
6. Mr. S.N. Bhat, learned Counsel appearing for the
Respondents/Defendants argued that the High Court has
righty held that the land in Block No.5 has non-agricultural
potentiality and allotment of the entire block No.5 in favour
of the Appellants would cause serious prejudice to the
Respondents. He emphasized that the land allotted to the
Appellants in Block No.5 is situated adjacent to a busy road
which is not in dispute. He submitted that every judgment of
the High Court need not be interfered with by this Court, if
justice has been done to the parties. Partition of properties
should not be lop sided benefitting only one party was the
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assertion made by Mr. Bhat to persuade this Court not to
interfere with the judgment of the High Court.
7. Preliminary decree was passed in favour of the Plaintiff
on 16.11.2002 and final decree petition was disposed of by
the Trial Court on 28.11.2012. As the main dispute relates to
the allotment of 8 acres, 13 guntas of land in Block No.5, it is
necessary to examine the findings recorded by the Courts
below in respect of the said property. Schedule A has seven
properties, totaling 69 acres, 16 guntas. Plaintiff was
allotted 8 acres, 27 guntas being 1/8 th share of 69 acres, 16
guntas. The partition documents prepared by the
Commissioner appointed by the Court shows that the Plaintiff
was given 8 acres, 13 guntas in Block No.5. As the Plaintiff
was entitled to 8 acres, 24 guntas and he was given only 8
acres, 13 guntas, the Commissioner held that Defendants
have to pay Rs.4853-33/- for the remaining 11 guntas. The
report of the Commissioner was accepted by the Trial Court
and the objections raised by the Defendants were rejected.
8. During the pendency of Regular Appeal filed by the
Defendants/Respondents an application was moved under
Order 41 Rule 27 CPC seeking permission to produce the
village map to show that the land situated in Block No.5
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which was allotted to the Plaintiffs is situated adjacent to
Dharwad-Saudatti State Highway and is very near to
Harobelawadi village whereas the rest of the lands are
situated far away from the village. The application filed by
the Respondents under Order 41 Rule 27 was dismissed by
the Appellate Court on the ground that there was no
satisfactory explanation for not producing the document in
the Trial Court. The document was obtained by the
Respondents on 28.08.2012, prior to the disposal of the final
decree proceedings but was not produced before the Trial
Court. While upholding the judgment of the Trial Court in
the final decree petition, the Appellate Court approved the
report of the Court Commissioner who visited the landed
property shown in Schedule A and verified the quality and
fertility of the land and found them to be similar. The Court
Commissioner considered the convenience of the parties to
cultivate the land while allotting Block No.5 in favour of the
Plaintiff. The First Appellate Court on reexamining the matter
was also of the opinion that the convenience of the parties to
cultivate the land is of prime importance while partitioning
landed properties. The First Appellate Court was of the
opinion that if the land in Block No.5 has to be partitioned
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equally to all the parties, that would cause inconvenience to
them for conducting agricultural operation. The First
Appellate Court discussed the evidence and held that the
Defendants did not dispute the similarity of fertility of the
land. The High Court rejected the submission on behalf of the
Defendants regarding the non- potentiality of Block No.5 on
the ground that the said question was never raised by them
in the Trial Court. No ground to that effect was also taken in
the first appeal. The First Appellate Court referred to the
cross-examination of the Court Commissioner by the
Defendants and found that no suggestion regarding the non-
potentiality was put to the Court Commissioner. On the basis
of the above findings, the First Appellate Court upheld the
final decree proceedings in respect of allotment of 8 acres,
13 guntas of land in Block No.5 in favour of the Plaintiff.
9. The High Court reversed the conclusion of the First
Appellate Court relating to non-agricultural potentiality of the
land without giving any reasons. The High Court held that 8
acres 13 guntas have to be conveniently divided amongst all
sharers so that each one of them will get a portion of the
land in Block No.5 which has non-agricultural potentiality.
Only on that ground, the High Court set aside the final decree
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proceedings and remitted the matter back for fresh
consideration.
10. The First Appellate Court is the final Court on facts. It
has been repeatedly held by this Court that the judgment of
the First Appellate Court should not be interfered with by the
High Court in exercise of its jurisdiction under Section 100
CPC, unless there is a substantial question of law. The High
Court committed an error in setting aside the judgment of
the First Appellate Court and finding fault with the final
decree by taking a different view on factual findings recorded
by the First Appellate Court. That apart, the High Court did
not give any reason to substantiate the finding that the land
in Block No.5 has non-agricultural potentiality, especially
when the First Appellate Court refused to accept the said
contention by rejecting the application filed under Order 41
Rule 27 by the Respondents. In the normal course, we would
have set aside the judgment of the High Court and remanded
the matter back for fresh consideration. However, taking
into account the fact that the preliminary decree was passed
way back in 2002 and the Appellants have not been able to
enjoy the fruits of the decree, we have examined the
correctness of the judgment of the First Appellate Court.
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11. The final decree passed by the Trial Court to the extent
affirmed by the First Appellate Court is upheld. The
judgment of the High Court is set aside. The Appeal is
allowed accordingly.
…………………………….J.
[ L. NAGESWARA RAO ]
……………………………..J.
[ S. RAVINDRA BHAT ]
New Delhi,
March 12, 2021.
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