- 1 - HC-KAR NC: 2025:KHC:22929 WP No. 3526 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 3526 OF 2018 (GM-CPC) BETWEEN: SRI V. GOVINDARAJU, S/O LATE VENKATESHAPPA SHETTY, AGED ABOUT 60 YEARS, R/AT: GURUVAIAHNAKOPPALU VILLAGE, BETTADAPURA HOBLI, PERIYAPATNA TALUK, MYSURU DISRICT – 571 107. ALSO R/AT: ODDAMBAL VILLAGE, HANAGODU HOBLI, HUNSUR TALUK, MYSURU DISTRICT – 571 105. …PETITIONER (BY SRI B.S.NAGARAJ, ADVOCATE) AND: 1. 1(a) G.V.RAMACHANDRA, DEAD BY HER LRS (DIED ON 26.07.2018) SMT.KALYANAMMA, AGED ABOUT 70 YEARS, W/O LATE G.V.RAMACHANDRA. 1(b) SMT.SAVITHA, AGED ABOUT 41 YEARS, D/O LATE G.V.RAMACHANDRA. 1(c) SRI R.CHANDRA, AGED ABOUT 40 YEARS, S/O LATE G.V.RAMACHANDRA. Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:22929 WP No. 3526 of 2018 1(d) SRI GIRISH, AGED ABOUT 38 YEARS, S/O LATE G.V.RAMACHANDRA. 1(e) SMT.SUNITA, AGED ABOUT 37 YEARS, D/O LATE G.V.RAMACHANDRA. ALL ARE R/AT: GURUVAIAHNAKOPPALU VILLAGE, BETTADAPURA HOBLI, PERIYAPATNA TALUK, MYSURU DISTRICT – 571 107. 2. MR. V. NAGARAJU, S/O LATE VENKATESHAPPA SHETTY, AGED ABOUT 63 YEARS, R/AT: 15TH CROSS, BASAVESHWARA BLOCK, K.R. NAGARA TOWN – 571 602, MYSURU DISTRICT. 3. MRS. SUSHILA, W/O RANGA SHETTY, AGED ABOUT 61 YEARS, R/AT KURUVANGI VILLAGE, KASABA HOBLI, CHIKKAMANGALURU TALUK, CHIKKAMANGALURU DISTRICT – 577 101. 4(a) JAYAMMA, W/O LATE JAYARAMASHETTY, DEAD BY HER L.RS. MR.H.J.SURESHA, S/O LATE JAYARAMASHETTY, AGED ABOUT 36 YEARS, WORKING AS WATERMAN, TOWN MUNICIPALITY OFFICE, HOLENARASIPURA – 573 211, HASSAN DISTRICT. - 3 - HC-KAR NC: 2025:KHC:22929 WP No. 3526 of 2018 4(b) MR.H.J.RAVI, AGED ABOUT 34 YEARS, S/O LATE JAYARAMASHETTY, WORKING AT RENUK AUTO WORKS, HASSAN MAIN ROAD, CHANNARAYAPATANA – 573 116. 4(c) MRS.RENUKA, AGED ABOUT 30 YEARS, W/O ARVINDA N., D/O LATE JAYARAMASHETTY, R/AT NO.873, 10TH MAIN, 3RD CROSS, GOKULAM, BENGALURU – 560 001. 5. MRS. SHARADHA, AGED ABOUT 57 YEARS, W/O LATE SUBRAMANYA, MANDI MOHALLA, MYSURU CITY – 570 001. 6. MRS. PREMA, W/O NARASIMAHASHETTY, AGED ABOUT 55 YEARS, YELLANADAHALLI VILLAGE, SALIGRAMA, K.R. NAGARA TALUK, MYSURU DISTRICT – 571 602. …RESPONDENTS (R1(a), R1(c), R(d) R2, R3, R4(a), R4(c), R6 ARE SERVED AND UNREPRESENTED; SERVICE OF NOTICE TO R4(b) IS HELD SUFFICIENT VIDE ORDER DATED 12.06.2023; NOTICE TO R5 IS DISPENSED WITH VIDE ORDER DATED 12.06.2023; NOTICE TO R1(B AND E) IS DISPENSED WITH VIDE ORDER DATED 10.03.2025) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 06.12.2017 PASSED BY THE HON'BLE COURT OF THE - 4 - HC-KAR NC: 2025:KHC:22929 WP No. 3526 of 2018 CIVIL JUDGE (SR. DIV.) AND JMFC AT PERIYAPATNA, ON APPLICATION FILED BY PLAINTIFF/PETITIONER HEREIN FILED UNDER ORDER XLVII RULE 1 READ WITH SECTION 151 OF CPC TO REVIEW THE JUDGMENT DATED 31.01.2017 AT ANNEXURE – A AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed seeking following relief: "i. Issue a Writ in the nature of Certiorari or any other appropriate Writ or order quashing the order dated dated 06.12.2017, passed by the Hon'ble Court of the Civil Judge (Sr.Div) and JMFC at Periyapatna, on application filed by Plaintiff/Petitioner herein filed under Order 47 Rule 1 read with Section 151 of the Code of Civil Procedure to review the Judgment dated 31.01.2017 at Annexure-'A'; ii. Allow the application filed by Plaintiff/Petitioner herein under under Order 47 Rule 1 R/W Section 151 of the Code of Civil Procedure in F.D.P.No.05/2010; on the file of the Hon'ble Court Civil Judge (Sr.Div.) & JMFC at Periyapatna; iii. And, grant such other relief/s as this Hon'ble Court deems fit to grant under the circumstances of the case in the interest of Justice and Equity." - 5 - HC-KAR NC: 2025:KHC:22929 WP No. 3526 of 2018 2. Heard Sri B.S.Nagaraj, learned counsel appearing for petitioner submits that in F.D.P.No.5/2010, the petitioner filed an application seeking review of the order dated 31.01.2017 on the ground that some portion of item No.5 of the suit schedule property was not allotted to anybody's share. In the preliminary decree, there is no mention with regard to the properties referred in the review petition as well as in the Commissioner's report. 3. It is submitted that item No.5 as mentioned in the decree in O.S.No.237/2007, clearly shows that there is an existing RCC house, including an asbestos sheet house with a vacant place and even as per the sketch prepared by the Commissioner at Annexure-E, the only vacant site at item No.5 measuring 135.24 meters has been allotted. However, there is no allotment of shares in respect of the remaining structures. It is submitted that the Trial Court has committed a grave error in rejecting the review petition. Hence, he seeks to allow the petition. - 6 - HC-KAR NC: 2025:KHC:22929 WP No. 3526 of 2018 4. I have heard the learned counsel appearing for petitioner. Though the notice on respondents are served, there is no representation. I have given my anxious consideration to the submissions advanced and meticulously perused the material available on record. 5. The petitioner filed O.S.No.237/2007 seeking relief of partition and separate possession of the suit schedule properties, the said suit came to be decreed on 17.01.2009 and thereafter, the petitioner initiated Final Decree Proceedings. In the said Final Decree Proceedings, the Court Commissioner was appointed. Based on the Court Commissioner's report, the Court passed an order on 31.01.2017 wherein the Court Commissioner's report was accepted and in respect of item No.5 of the suit schedule property, the petitioner was allotted house property described at item No.5 of an area is totally measuring 135.24 meters, as shown at Sl.No.1 of the sketch filed by the Commissioner. - 7 - HC-KAR NC: 2025:KHC:22929 WP No. 3526 of 2018 6. The petitioner filed a review petition under Order XLVII Rule 1 read with Section 151 of CPC seeking review of the order dated 31.01.2017 passed in F.D.P.No.5/2010 in respect of item No.5 of the suit schedule property. The F.D.P. Court has allotted the share in respect of 135.24 meters of land. However, it has left out the RCC house including an asbestos sheet house and remaining extent of land as shown in Annexure-E. The Trial Court after considering the same dismissed the petition on the ground that there was a delay in filing the review petition as well as it has recorded the finding that in the preliminary decree, there is no mention about the existence of the Mangaluru Tiled house on the northern side of the said property and also not reflected in the Commissioner's report. In my considered view, the Trial Court has committed a grave error in coming to such conclusion. The preliminary decree in respect of item No.5 reads as under: "5. RCC House including asbestos sheet house with vacant place situated at - 8 - HC-KAR NC: 2025:KHC:22929 WP No. 3526 of 2018 Guruvaiahnakoppalu, Bettadapura Hobli, Periyapatna Taluk, bounded by: East: Road West: Lands of Subbashetty. South: Vacant site belong to Appajishetty North: House of Nagamma and Ramashetty." 7. The aforesaid portion of the decree clearly indicates that there is an existence of RCC house including an asbestos sheet house with a vacant place situated at Guruvaiahnakoppalu, Bettadapura Hobli, Periyapatna Taluk and boundaries are as mentioned above. The Court Commissioner's report does not indicate the existence of the house. However, in the sketch produced along with the petition at Annexure-E indicates that item Nos.1, 2 and 3 shown in the sketch are allotted to the petitioner and respondents. However, on the right side of the sketch, item shown as Nos.1, 2, 2 and 3 are not allotted to anyone. 8. Hence, in my considered view, the F.D.P. Court is required to re-consider the said aspect and if necessary, - 9 - HC-KAR NC: 2025:KHC:22929 WP No. 3526 of 2018 by appointing the Court Commissioner to find out the correctness of the statement made by the petitioner in the review petition. In view of the same, I proceed to pass the following: ORDER i. The writ petition is allowed. ii. The order dated 06.12.2017 passed in FDP No.5/2010 by the Senior Civil Judge and JMFC, Periyapatna is set-aside; iii. The review petition filed by the petitioner is kept pending. The Trial Court is directed to re-consider the same after hearing the parties and if need arise, appoint the Court Commissioner to find out the factual aspects as asserted by the petitioner in review petition and thereafter, dispose of the same.; iv. No orders to cost. Sd/- (VIJAYKUMAR A. PATIL) JUDGE CPN