PAPANNA A. Vs. B.N. SIDDESHWARI

JUDGEMENT

(1.) This matter is listed for admission. Heard the learned counsel for the appellant and also the learned counsel for the respondents and reserved for orders.

(2.) The factual matrix of case is that the respondent Nos.1 to 5 who are the legal representatives of one Sri.B.S.Nagaraj have filed FDP No. 82/2013 before the Trial Court under Order 20 Rule 18 R/w Sec. 151 of CPC contending that they have instituted the suit against the respondents in O.S.No. 93/2001 for the relief of partition and separate possession of his 1/3rd share in respect of the suit schedule properties and also for permanent injunction. The said suit came to be decreed in favour of the petitioner/plaintiff on 16/3/2007 entitling the plaintiff for 1/3rd share in the suit 'A' and 'B' schedule properties by metes and bounds. It was further ordered and decreed that the defendant Nos. 5 to 9 together were entitled for 1/3rd share in the suit 'A' and 'B' properties. It was further ordered that the sale deed executed by Gurudatt in favour of the defendant No. 10 who is the appellant herein in this appeal is not binding upon the plaintiff and the defendant Nos.5 to 9. The prayer of defendant Nos.2 and 3 was dismissed. The appellant herein has filed an appeal in R.F.A.No. 1215/2007 challenging the judgment and decree passed in O.S.No. 93/2001, which came to be dismissed on 12/12/2012. Thereafter, they have initiated the FDP proceedings i.e., F.D.P No. 82/2013 seeking for final decree consequent upon the judgment and decree passed in O.S.No. 93/2001.

(3.) The Trial Court having taken note of the petition filed for final decree and also considering the finding of the High Court passed in R.F.A.No. 1215/2007 confirming the judgment of the Trial Court. The Tahasildar of Mysuru taluk was appointed as a Court commissioner to demarcate the property as per the preliminary decree as per the order dtd. 7/8/2017 and accordingly the Court commissioner has submitted his report to the Court on 22/2/2018. Thereafter, the commissioner report was rejected by the Court by its order dtd. 23/10/2018 with a direction to the Court commissioner to submit the fresh report after strictly following the memo of instructions of all the parties and their counsel in their presence. An enquiry into mesne profits claimed by the respondent Nos.5 to 9 by way of I.A No. 13 came to be dismissed on 23/10/2018. Thereafter, the respondent Nos.5 to 9 had filed I.A.No. 30 and I.A.No. 31 under Sec. 151 of CPC to recall the order dtd. 23/10/2018. I.A.No. 30 was allowed and I.A.No. 31 which was filed to recall the order dtd. 23/10/2018 rejecting the commissioner's report was dismissed. Thereafter, fresh commission warrant was issued and the Court commissioner after completion of commission work has submitted his report on 22/11/2019.