Dismissed

Manjunath S/O Hanumanthappa Turamari v. Laxman S/O Hanumanthappa Turamari

Karnataka HC17 Sept 2024RFA/100005/2023

Case brief

AI extract

What is this about?

In a regular first appeal regarding a partition suit, the High Court held that the Civil Court validly appointed an Assistant Director of Land Records as Commissioner under Section 54 of CPC. The appeal was dismissed as the statutory restriction applies only to Revenue Officers.

What did the court decide?

The appeal stood dismissed. The judgment and final decree dated 26.05.2022 were upheld.

Manjunath S/O Hanumanthappa Turamari Vs Laxman S/O Hanumanthappa… — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:13148-DB RFA No. 100005 of 2023

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 17^TH DAY OF SEPTEMBER, 2024

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PRESENT

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THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD

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AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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REGULAR FIRST APPEAL NO.100005 OF 2023 (PAR/POS)

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BETWEEN:

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MANJUNATH S/O. HANUMANTHAPPA TURAMARI, AGE: 47 YEARS, OCC: AGRICULTURE, R/O. NAVALUR VILLAGE, VINAYAKA NAGAR, DHARWAD-580 009.

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APPELLANT

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(BY SRI. J.S.SHETTY, ADVOCATE)

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AND:

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LAXMAN S/O. HANUMANTHAPPA TURAMARI, AGE: 39 YEARS, OCC: AGRICULTURE, R/O. NAVALUR VILLAGE, VINAYAKA NAGAR, DHARWAD-580 009.

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Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD Date: 2024.09.26 10:18:50 +0530

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AKKAMMA HANUMANTHAPPA TURAMARI, AGE: 74 YEARS, OCC: HOUSEHOLD WORK, R/O NAVALUR VILLAGE, VINAYAKA NAGAR, DHARWAD-580 009.

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BHIMAPPA S/O. HANUMANTHAPPA TURAMARI, AGE: 54 YEARS, OCC: AGRICULTURE, R/O. NAVALUR VILLAGE, VINAYAKA NAGAR, DHARWAD-580 009.

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PREETI D/O. HANUMANTHAPPA TURAMARI, AFTER MARRIAGE PARVATI W/O. BISHTU HUMDENAVAR, AGE: 35 YEARS, OCC: HOUSE HOLD WORK, R/O. 272, INFRONT OF SHAKTI THEATRE, VINAYAK ROAD, BANI ONI, HUBLI, DIST: DHARWAD-580 020.

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RESPONDENTS

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(BY SRI. CHETAN T. LIMBIKERI, ADVOCATE FOR R1; NOTICE TO R2 TO R4 – SERVED AND UNREPRESENTED)

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2 - NC: 2024:KHC-D:13148-DB RFA No. 100005 of 2023

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND FINAL DECREE DATED 26.05.2022 PASSED BY THE LEARNED II ADDL. SENIOR CIVIL JUDGE AND JMFC, DHARWAD IN FDP NO. 37/2019 & ETC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD)

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This appeal is by one of the defendants in a suit for partition that has culminated in preliminary and final decrees, and the appellant in this appeal has called in question the judgment and final decree dated 26.05.2022 in F.D.P. No. 37/2019 on the file of the learned Second Addl.

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Senior Civil Judge, Dharwad, [for short, the ‘civil Court’ ].

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The civil Court, by the impugned order, has

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accepted the Commissioner’s report directing a decree to be drawn declaring that the first respondent [the plaintiff] would be entitled to certain identified portions in Block No. 54/1A/1 of Navaloor village, Dharwad Taluk while also declaring that the appellant [the third defendant] would be

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3 - NC: 2024:KHC-D:13148-DB RFA No. 100005 of 2023

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entitled to certain other portions towards his share in this land observing that the second respondent [the first defendant] would be entitled for certain other portions.

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Sri J.S. Shetty, the learned counsel for the

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appellant, submits that this Court must interfere with the impugned final decree because it is based on the report filed by an Officer who is below the rank of Tahsildar and that this would be contrary to the provisions of Section 54 of the Code of Civil Procedure, 1908 [for short, the ‘CPC’ ] as amended for the State of Karnataka, and that the civil Court has not examined whether it was possible to partition the aforesaid land in a manner to ensure that the appellant retained the portion which is in his possession. Sri Chetan T. Limbikai, the learned counsel for the first respondentplaintiff is heard in the light of these two canvasses.

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This Court must observe that the appellant,

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who has accepted the preliminary decree after the first appellate Court’s order, has not filed objections to the petition for final decree nor memo of instructions for the

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4 - NC: 2024:KHC-D:13148-DB RFA No. 100005 of 2023

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Court Commissioner [the jurisdictional Assistant Director of Land Records], but has filed objections to the Commissioner’s Report to contend [i] that the Officer has filed his report without visiting the subject property, [ii] that the proposed division is despite the existence of certain features such as metalled road and an existing shed and [iii] that there is a shortfall of five guntas in the total extent of land.

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The Commissioner has demarcated only 13 guntas in the subject land opining that neither the existence of a metalled road nor the shed would impede the partition of the properties. The appellant has not raised any objection based on his possession. Further, this Court must next observe that the appellant has not raised any dispute about the civil Court appointing the jurisdictional Assistant Director of Land Records as the Commissioner.

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5 - NC: 2024:KHC-D:13148-DB RFA No. 100005 of 2023

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The provisions of Section 54 of CPC [Karnataka Amendment]¹ envisage a court appointing either a ‘ Revenue Officer’ or ‘ such other person’ as commissioner for the purposes of securing a Report on the possible partition, but when the Court appoints a Revenue Officer, ‘ such officer cannot be below the rank of a Tahsildar’ . However, when an Assistant Director of Land Records [this officer must be in the category of any ‘ such other person ’] is appointed as commissioner, the expression such officer cannot be below the rank of a Tahsildar will not restrict the court’s jurisdiction.

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The expressions, Revenue Officers and Survey Officers are separately defined respectively under Section 2(24) and 2(31) of the Karnataka Land Revenue Act,

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1 Section 54: Partition of estate or separation of share .- Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share of such an estate shall be made by the Court in accordance with the law if any, for the time being in force relating to the partition or the separate possession of shares, and if necessary on the report of a revenue officer, not below the rank of Tahsildar or such other person as the court may appoint as Commissioner in that behalf .

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6 - NC: 2024:KHC-D:13148-DB RFA No. 100005 of 2023

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1964 [the KLR Act], and Assistant Directors of Land Records are listed as one set of the ‘ Survey Officers’ under Section 18 of the KLR Act. Incidentally, this Court may observe that an appeal against the order of an Assistant Director of Land Records, in view of the notification dated 26.05.2003 under Section 49 (f) of the KLR Act, will lie to the Joint Director of Land Records.

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These circumstances indicate that there is

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no restriction on the powers of a Court to appoint an Assistant Director of Land records as a Commissioner under Section 54 of CPC. Therefore, neither the grounds raised in the objections to the report by the jurisdictional Assistant Director of Land Records nor the grounds urged by Sri J.S.Shetty can be accepted. In the light of the afore, the

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appeal stands dismissed.

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Sd/(B.M.SHYAM PRASAD) JUDGE

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Sd/(C M JOSHI) JUDGE

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BVV

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Ct:vh/List No.: 1 Sl No.: 7

Manjunath S/O Hanumanthappa Turamari v. Laxman S/O Hanumanthappa Turamari

Case brief

What is this about?

What did the court decide?

Manjunath S/O Hanumanthappa Turamari v. Laxman S/O Hanumanthappa Turamari

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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