The High Court in this second appeal involving partition disputes held that the court commissioner's report was valid as appellants failed to contest it during preliminary and final decree proceedings, and no substantial question of law arose under Section 100 of CPC.
Second appeal dismissed; all pending applications disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:44602 RSA No. 417 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 417 OF 2023 (PAR)
BETWEEN:
Digitally signed by SUCHITRA M J Location: HIGH COURT OF KARNATAKA
…APPELLANTS
(BY SRI. MANJUNATH PRASAD V, ADVOCATE)
AND:
KEMPAMMA, DEAD BY LRS
THE RESPONDENT NO.1 AND 2 ARE R/AT LINGAMMANAHALLY PALYA, KADABA HOBLI, GUBBI TALUK - 57 219, TUMKUR DISTRICT.
D/O LATE KALAPPA, AGED ABOUT 41 YEARS, R/AT CHINIGA, KORA HOBLI, KORATAGERE TALUK 572 129, TUMKUR DISTRICT.
…RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 01.12.2022 PASSED IN RA.No.51/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, GUBBI, DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 18.08.2021 PASSED IN FDP No.16/2012 ON THE FILE OF THE C/c PRINCIPAL CIVIL JUDGE
NC: 2023:KHC:44602 RSA No. 417 of 2023
AND JMFC, GUBBI, ALLOWING THE FINAL DECREE PROCEEDINGS FILED UNDER SEC.54 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the unsuccessful defendants who have questioned the final decree drawn in FDP.No.16/2012 in the judgment rendered by the Appellate Court in R.A.No.51/2021.
decree proceedings in FDP.No.16/2012.
NC: 2023:KHC:44602 RSA No. 417 of 2023
the final decree proceedings by contending that a miscellaneous petition filed by them seeking an exparte decree is pending consideration. The final decree court, referring to the feasibility report submitted by the taluk surveyor, allotted block-I to respondent/plaintiff and block-II to the present appellants and accordingly, allowed the petition by drawing a final decree.
5. The appellants/defendants aggrieved by the
decree drawn in FDP.No.16/2012, preferred an appeal by contending that the surveyor has not properly executed the commission work and his feasibility report does not depict the existence of trees on the land. The Appellate Court, while examining the final decree drawn by the Trial
Court and the commissioner's report, was not inclined to accept the grounds urged in the appeal memo. The Appellate Court held that, regarding the trees situated in the suit lands, defendants ought to have filed objections and questioned the commissioner's report. The Appellate Court held that though sufficient opportunities were given
to the appellants herein to file objections, the said opportunities were not availed by them. It is in this background, the Appellate Court was not inclined to interfere with the final decree drawn by the final decree court.
would find that there is total laxness on the part of the appellants/defendants. The appellants herein have failed to contest the partition suit filed in O.S.No.222/2006.
Though the court has passed an exparte decree, the same is not set aside. Even in final decree proceedings, the appellants have not chosen to contest proceedings by filing objections to the main petition. The appellants have also not contested the commissioner's report. If no objections are filed to the commissioner's report, it is well within the jurisdiction of the final decree court to examine the feasibility report and pass appropriate orders. The contention of learned counsel for the appellants that the court has no discretion/jurisdiction to allot any particular property to any party cannot be exceeded too. The final decree court, on receipt of the feasibility report submitted by the commissioner, can examine the equities and pass orders. Section 54 of the CPC, in view of the amendment, has vested jurisdiction to the courts. Unlike under the unamended Section 54, pursuant to the passing of a preliminary decree, the court had no jurisdiction and could only exercise administrative power to remit the records to the deputy commissioner to effect partition by metes and bounds and hand over possession. In view of the
amendment to Section 54, the entire dispute/controversy relating to the feasibility report effecting partition by metes and bounds needs to be examined by the final decree courts. If no objections are filed and if there is no serious contest to the commissioner's report, it is well within the jurisdiction of the final decree court to accept the commissioner's report and allot shares. Therefore, I do not find any serious infraction in the procedure adopted by the final decree court. Even if there is some error, that error cannot be examined in the captioned appeal unless substantial question of law arises for consideration that needs adjudication at the hands of this Court. Bearing in mind the conduct of the appellants, who have neither chosen to contest the proceedings nor contested the commissioner's report, I am not inclined to grant any indulgence under Section 100 of CPC. The grounds urged in the captioned appeal cannot be entertained and such a recourse is not permissible under Section 100 of CPC. Therefore, no substantial question of law would arise for
NC: 2023:KHC:44602 RSA No. 417 of 2023
consideration. Accordingly, captioned second appeal
stands dismissed .
In view of dismissal of second appeal, all pending
applications, if any, do not survive for consideration and stand disposed of.
Sd/JUDGE
HDK List No.: 1 Sl No.: 7 CT: BHK
3 issues framed by the court
Whether the final decree court exceeded jurisdiction by allotting property without contest from the appellants.
Whether the dismissal of the second appeal under Section 100 of CPC is maintainable given the lack of serious contest in proceedings below.
Whether the feasibility report submitted by the court commissioner should have been challenged in the final decree proceedings.
Colour shows how this judgement treated each authority
nullReferred
2 provisions across 1 enactments
SMT. PUTTAMMA, W/O LINGAPPA
SRI. KARIYAPPA @ NARASIMHAMURTHY, S/O LINGAPPA
SMT. MAHADEVAMMA, W/O SRI. NANJUNDAPPA
SMT. RATHNAMMA, W/O SRI. RAMESH
SMT. NAGAMMA, W/O RAMALINGAIAH
SMT. BHAGYAMMA, W/O SRI. MAHESH
SACHIN SHANKAR MAGADUM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
