SARALA Vs. PADMAVATHI

JUDGEMENT

(1.) This appeal is filed by the appellants/defendant Nos.5, 6, 7, 8 and 9 challenging the order dtd. 22/11/2024 passed in FDP No.82/2020 by learned I Additional City Civil and Sessions Judge, Bengaluru (CCH-2).

(2.) For the purpose of convenience, the parties are referred to as per their rankings before the trial Court. The appellants are defendant Nos.5 to 9 and the respondents are plaintiff Nos.1, 2 and defendant Nos.3, 1, 2 and 4 respectively.

(3.) The brief facts of the case are that respondent Nos.1 and 2 (plaintiffs) had filed FDP No.82/2020 against the appellants and other respondents before FDP Court, to draw a final decree for separation of their share of 973/2520 in respect of the suit schedule properties and for separate possession and also mesne profits of their share pursuant to the judgment and decree passed in O.S.No.5633/2000 dtd. 7/4/2014 and the judgment and decree passed in RFA No.916/2014 dtd. 15/5/2020, modifying the share. The appellants being defendant Nos.5 to 9 in FDP No.82/2020 filed their statement of objections to the application filed under Order XX Rule 18 of CPC before FDP Court. In FDP proceedings, respondent Nos.1 and 2 had filed an application under Order XX Rule 18 of CPC for grant of mesne profit and also filed IA No.II under Order XXVI Rule 13 of CPC for appointment of Court Commissioner, hence, the FDP Court appointed one Arun R, Advocate, as Court Commissioner, who visited the schedule property and submitted his report on 26/7/2024, based on the market value of the schedule properties and without ascertaining actual market value of the property, he has submitted his report, which is not in accordance with law. Hence, the appellants had filed objections to the Court Commissioner's report. The appellants also filed memo for division of schedule properties, simplifying the allotment of shares in accordance with guidance value, without dividing the properties into several shares and suggesting the simple modalities to allot shares, considering the good relationship of the parties and possession and residence of appellant Nos.4 and 5. However, the FDP Court without considering the memo for proper division of the schedule properties as suggested by the appellants, erred in allowing the petition filed under Order XX Rule 18 of CPC in-part, by accepting the Commissioner's Report, wherein, the FDP Court directed to draw final decree in terms of the report of Court Commissioner and sketch produced along with report in respect of suit schedule 'A' and 'B' properties.