SEETHU Vs. PIJINA MOOLYA

JUDGEMENT

(1.) THE appellant -Plaintiff filed a suit for partition of plaint 'A' schedule property. By virtue of the preliminary decree dated 20.12.2002, the properties were divided into five shares and one such share was allotted to the Plaintiff. Aggrieved by the same, the Plaintiff filed FDP proceedings in FDP No. 39/2005 for division of plaint 'A' schedule property. A Court Commissioner was appointed. The properties were divided into five equal shares and the Court Commissioner filed the report on 29.05.2006. The Plaintiff filed no objection along with a memo through her husband praying to allot the yellow portion of the property as shown in the sketch. The same was objected to by the defendants contending that the report is improper. Therefore, the Commissioner was redirected to effect partition between the parties in respect of plaint A' schedule property. Accordingly, a second report along with a sketch was filed by the Commissioner on 27.08.2007. In terms of the memo filed by the Plaintiffs counsel, the properties were allotted in terms of the said memo. Therefore, the Commissioner's report was accepted on 10.09.2007 and ordered to draw a final decree. Aggrieved by the said order, the Plaintiff by changing the previous counsel, engaged the present counsel contending that the earlier counsel was not instructed to file a memo to allot the property. Subsequently, I.A. No. 3 was filed to reconsider the share allotted to the Plaintiff. That was also dismissed as well as the plea of the Plaintiff. Aggrieved by the said order, a first appeal was filed before the Senior Civil Judge, Karkala in R.A. No. 32/2008. There was a delay in filing the appeal. Consequently, an application to condone the same was filed. The first Appellate Court by the impugned order dismissed the application seeking condonation of delay in the filing the appeal thereby confirming the order of the trial Court. Aggrieved by the same, the Plaintiff is in appeal before this Court.

(2.) BY order dated 09.04.2013, the following substantial question of law was framed.

(3.) I have heard the learned Counsel on the same. Hence, the substantial question of law is refrained as under: -