This

matter

is

listed

for

admission.

Heard the learned counsel appearing for the appellant and the

learned counsel appearing for caveator/respondent No.4.

This appeal is filed challenging the judgment and

decree dated 17.12.2022 passed in R.A.No.1/2022 on the file of

the I Additional District Judge, Kodagu-Madikeri.

The factual matrix of the case of the plaintiffs

before the Trial Court is that while filing the suit for partition

they claimed the partition in respect of total 40 items of the

suit schedule property. The Trial Court after considering the

material available on record dismissed the suit. Being aggrieved

by the said judgment and decree of dismissal of the suit, an

appeal was filed before this Court. For want of jurisdiction, the

matter was remanded to the District Court and the District

- 6 -

Court reversed the finding of the Trial Court. The suit was

dismissed on 03.01.1981 and the regular appeal was allowed

on 28.07.1993. In the meanwhile, this appellant had purchased

the property in the year 1988 and R.S.A., is filed before this

Court by the appellant and also the vendor. This Court in both

the matters directed the parties to approach the FDP Court. In

the meanwhile, one of the son of the vendor of this appellant

has filed an application to grant share in favour of his sisters

and the said application was allowed. Hence, the regular appeal

was filed by this appellant in R.A.No.1/2022 and another appeal

was filed by the Vendor in R.A.No.3/2022.

The First Appellate Court having considered the

grounds urged in the appeal memo framed the point for

consideration that whether the appellants in both appeals have

made out a case in order to set aside the impugned judgment

and decree dated 09.09.2019 passed by the Senior Civil Judge;

Madikeri in F.D.P.No.9/1999, the same was answered as

negative. Hence, the present second appeal is filed to set aside

the judgment and decree dated 17.12.2022 passed in

R.A.No.1/2022 on the file of the I Additional District Judge,

Kodagu-Madikeri and also set aside the Fresh Preliminary

- 7 -

Decree dated 21.01.2022 passed in FDP No.9/1999 on the file

of the Court of Senior Civil Judge, Madikeri.

The learned counsel appearing for the appellant

would vehemently contend that both the Courts have

committed

an

error

in

entertaining

an

application

for

modification of the judgment and decree of the Trial Court.

Both the Courts miserably failed to take judicial notice of the

settled principles of law that the possession of the appellant

with regard to the property should not be disturbed and

thereby ought to have dismissed I.A.No.21 and ought to have

held that respondent No.1 is not entitled for any preliminary

decree in Final Decree Proceedings, which is unknown to law.

The learned counsel also would vehemently contend that both

the Courts miserably failed to appreciate the fact that no

application came to be filed by any daughter of Late Deva

Shetty for amendment of Decree and moreover at no point of

time either before the District Court in R.A.No.29/2019 or

before this Court in R.S.A.No.587/2021, they have claimed

1/6^th share at any point of time and therefore, I.A.No.21 and

the Fresh Preliminary Decree is devoid of merits and liable to

be dismissed.

- 8 -

The learned counsel also would submit that this

Court has to frame the substantial question of law that whether

both the Courts are right in passing the Fresh Preliminary

Decree and dismissed the appeals preferred by the appellants

and whether both the Courts are right in passing the Fresh

Preliminary Decree in view of the recent judgment of the Apex

Court.

Per contra, the learned counsel appearing for

caveator/respondent No.4 would vehemently contend that the

suit was disposed of on 03.01.1981 and an appeal was filed

immediately before this Court and the matter was sent back to

the District Court in view of the jurisdiction. The very

contention of the learned counsel for the appellant that the