MAHADEV Vs. SHRIKANT AND ORS.

JUDGEMENT

(1.) This Second Appeal is by the defendants in O.S. No. 239/1989. They have assailed judgment dated 01.01.2011 passed in R.A. No. 175/2009, which arose from FDP. No. 21/2001. By the impugned judgment, order dated 16.04.2009, passed in FDP. 21/2001, by the Court of Principal Civil Judge (Sr. Dn), Belgaum, has been confirmed.

(2.) Briefly stated, the facts are that the 1st respondent -plaintiff (original plaintiff) had filed O.S. No. 239/1989 before the Principal Senior Civil Judge, seeking relief of partition and separate possession of the suit schedule properties. The said suit was dismissed, against which, RSA. 697/97 was filed before this Court. During the pendency of the appeal, defendant -1 died. The First Appeal was allowed and partition and separate possession of the suit properties was granted to the plaintiff who was given 1/9th share in the suit properties, except VPC. No. 37. Special Leave Petition was filed by the defendants before the Hon'ble Supreme Court, which was dismissed. The plaintiff thereafter filed FPD proceedings seeking 1/9th share in the suit properties. In FDP proceedings, two Court Commissioners were appointed for effecting partition of agricultural lands and the house properties respectively. They submitted their respective reports. The Advocate Court Commissioner submitted his report on 28.07.2003 suggesting partition of the house properties. He was also examined as C.W. 3 and cross -examined before the Trial Court. The Trial Court accepted the report of the Court Commissioner in respect of the house properties and rejected Court Commissioner's report regarding agricultural lands.

(3.) Before the Trial Court, the following points were raised: