Regular Second Appeal against dismissal of appeal challenging a final decree order accepting the Court Commissioner's report of demarcation. The High Court held no substantial question of law arose, the plaintiff was given but did not avail the opportunity to cross-examine the Commissioner, and dismissed the appeal.
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: 2024:KHC:37438 RSA No. 465 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.465 OF 2019 (PAR)
BETWEEN:
SRI. K.A. POOVAIAH S/O KOOPADIRA AIYAMMA AGED ABOUT 65 YEARS RESIDING AT BILIGERI VILLAGE AND POST, MADEKERI TALUK KODAGU DISTRICT-571 201
…APPELLANT
(BY SMT. ANUSHA NANDISH, ADVOCATE)
AND:
Digitally signed by SHARMA ANAND CHAYA Location: High Court of Karnataka
NC: 2024:KHC:37438 RSA No. 465 of 2019
AND POST, MADIKERI TLAUK KODAGU DISTRICT-571 201
…RESPONDENTS
(BY SRI. K.M. SHIVAKUMAR, ADVOCATE FOR R1; SMT. ANANDITA SRINIVASAN, ADVOCATE FOR R2 AND R3)
THIS RSA IS FILED U/S.100 PF CPC,1908 AGAINST THE JUDGMENT AND DECREE DATED 06.03.2018 PASSED IN RA.NO.23/2017 ON THE FILE OF THE PRL.DISTRICT JUDGE, KODAGU MADIKERI DISMISSING THE APPEAL FILED AGAINST THE ORDER AND DECREE DATED 11.01.2017 PASSED IN FDP NO.15/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE MADIKERI ALLOWING THE PETITION FOR FINAL DECREE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is filed against the judgment and decree dated 06.03.2018 in R.A.No.23/2017 on the file of Prl. District Judge, Kodagu at Madikeri, dismissing the appeal and confirming the order dated 11.01.2017 in F.D.P.No.15/2013 on the file of Senior Civil Judge, Kodagu, Madikeri, allowing the petition.
referred to as per their rank before the trial Court.
NC: 2024:KHC:37438 RSA No. 465 of 2019
06.03.2018 dismissed the application and feeling
aggrieved by the same, the petitioner/plaintiff has presented this Regular Second Appeal.
counsel appearing for the appellant that the finding recorded by the First Appellate Court is that the appeal itself is not maintainable under Sections 96, 97 and under Order 41 Rule 1 of CPC is incorrect. It is also contended
by the learned counsel for the appellant that no proper survey has been made and as such, the report of the Commissioner ought not to have been accepted by the
trial Court. It is also submitted that, fair opportunity has not been extended by the Courts below with regard to the
NC: 2024:KHC:37438 RSA No. 465 of 2019
report of the Court Commissioner and accordingly, it is argued that the impugned judgment and decree passed by the Courts below requires to be set aside.
NC: 2024:KHC:37438 RSA No. 465 of 2019
the respondents therein cross-examined the Court Commissioner relating to the division of properties. It is also pertinent to mention that the respondents though have filed objection to the Court Commissioner's report and same was not accepted and accordingly, the trial Court by order dated 11.01.2017, rightly accepted the Court Commissioner Report and arrived at a conclusion that the petitioner is entitled for 1/4th share in the suit schedule properties. In that view of the matter, as the original suit is of the year 2007, interference at this juncture, does not call for. Accordingly, Regular Second Appeal is dismissed as devoid of merits as the appellant herein has not made out a case for formulation of substantial question of law under Section 100 of CPC.
SD/(E.S.INDIRESH) JUDGE
List No.: 1 Sl No.: 37
PSJ
2 issues framed by the court
Whether the First Appellate Court rightly dismissed the appeal against the final decree order accepting the Court Commissioner's report allotting the plaintiff a 1/4th share?
Was interference warranted under Section 100 CPC in the absence of a substantial question of law?
2 provisions across 1 enactments
Sri. K.A. Poovaiah
Sri. K.A. Ganapathi
Smt. K.A. Ponnamma @ Ponnakki
Smt. K.A. Kaveriamma
E.S. Indiresh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
