Dr Mahadevappa S/O Nagappa Koti Vs Smt Iravva W/O Maharudrappa Hosamani

¶1

1 -

¶2

NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶3

HC-KAR

¶4

IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 23^RD DAY OF SEPTEMBER 2025

¶5

PRESENT

¶6

THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND

¶7

THE HON'BLE MR. JUSTICE C.M. POONACHA REGULAR FIRST APPEAL NO. 100012 OF 2024 (-)

¶8

BETWEEN:

¶9

DR. MAHADEVAPPA S/O. NAGAPPA KOTI, AGE: 74 YEARS, OCC: RETIRED GOVT. MEDICAL PRACTITIONER, R/O. NEAR RAMBAPURI KALYAN MANTAPA, VIDYANAGAR, HUBBALLI.

¶10

YASHAVANT NARAYANKAR

¶11

Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

¶12

SMT. RASHMI D/O. MAHADEVAPPA KOTI, AFTER MARRIAGE RASHMI W/O. GIRISH NULI, AGE: 44 YEARS, OCC: HOUSEHOLD WORK, R/O. NEAR RAMBAPURI KALLYAN MANTAPA, VIDYA NAGAR, HUBBALLI-580031.

¶13

SMT. MEDHA @ SUPARNA D/O. MAHADEVAPPA KOTI, AFTER MARRIAGE MEDHA @ SUPARNA W/O. BASAVARAJ NAGUR, AGE: 44 YEARS, OCC: HOUSEHOLD WORK, R/O. NEAR RAMBAPURI KALLYAN MANTAPA, VIDYA NAGAR, HUBBALLI-580031.

¶14

THAT APPELLANT NO.2 AND 3 ARE REPRESENTED BY GENERAL POWER OF ATTORNEY HOLDER I.E., APPELLANT NO.1 AND

¶15

2 -

¶16

NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶17

HC-KAR

¶18

SHAILAJA W/O. MAHADEVAPPA KOTI, OCC: PENSIONER R/O. NEAR RAMBAPURI KALLYAN MANTAPA, VIDYA NAGAR, HUBBALLI-580031. HUBBALLI-580031.

¶19

…APPELLANTS

¶20

(BY SRI. SHRIKANT T. PATIL & SRI. ROHIT S. PATIL, ADVOCATES)

¶21

AND:

¶22

SMT. IRAVVA W/O. MARUDRAPPA HOSAMANI, AGE: 81 YEARS, OCC: HOUSEHOLD WORK, R/O. TADAKOD, TQ: & DIST: DHARWAD-581105.

¶23

SMT. GANGAVVA W/O. SHIVANAND SHIVANNAVAR, AGE: 53 YEARS, OCC: TEACHER NAYANAGAR, R/O. MAHANTESH CHAWL, C/O. G.S. CHAVADI, ADVOCATE, TQ: BAILHONGAL, DIST: BELAGAVI-591102.

¶24

SRI. RUDRAPPA S/O. TOTAPPA DODAWAD, AGE: 67 YEARS, OCC: BUSINESS, R/O. MARADIGALLI, TQ: BAILHONGAL DIST: BELAGAVI-591102.

¶25

SRI. FAKKIRAPPA S/O. TOTAPPA DODAWAD, AGE: 63 YEARS, OCC: AGRICULTURE, R/O. KOPPADAGILLI, TQ: BAILHONGAL, DIST: BELAGAVI-591102.

¶26

3 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶27

HC-KAR

¶28

SMT. SHANKAREVVA W/O. SHIVALINGAPPA DODAWAD, AGE: 60 YEARS, OCC: HOUSEHOLD WORK, R/O. MEHABBOOB NAGAR, DHARWAD, NOW AT C/O. GANGAPPA @ MUTTU S/O. ULAVAPPA KOTI, MALAPUR ROAD, NEAR DODAMANI SHOWFABS, DHARWAD-580001.

¶29

SMT. MURIGEVVA W/O. YALLAPPA NAGAYI, AGE: 58 YEARS, OCC: HOUSEHOLD WORK, R/O. HOSAPET ONI, TQ: SAVADATTI, DIST: BELAGAVI-591126.

¶30

SMT. GANGAVVA W/O. IRAPPA KOTAGI, AGE: 56 YEARS, OCC: HOUSEHOLD WORK, R/O. UDIKERI, TQ: BAILHONGAL, DIST: BELGAUM-591104.

¶31

…RESPONDENTS

¶32

(BY SRI. SHIVARAJ C. BELLAKKI, ADVOCATE FOR R1 & R7; SRI. ABHISHEK L. KALLED, ADVOCATE FOR R4-R6; NOTICE TO R3-SERVED; NOTICE TO R2 IS HELD SUFFICIENT VIDE ORDER DATED 20.02.2025)

¶33

THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CODE OF CIVIL PROCEDURE, 1908 PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY III ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE DHARWAD IN FDP 34/2019 DATED 13.10.2023 AND ETC.

¶34

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

¶35

CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND

¶36

THE HON'BLE MR. JUSTICE C.M. POONACHA

¶37

4 -

¶38

NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶39

HC-KAR

¶40

ORAL JUDGMENT

¶41

(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)

¶42

This appeal by the appellants, who are respondent Nos.1, 7 and 8 in FDP No.34/2019, is directed against the impugned judgment and decree dated 13.10.2023 passed in FDP No.34/2019 by the III-Additional Senior Civil Judge and CJM, Dharwad¹ , whereby the said petition filed by the respondent No.1 herein against the appellants herein was allowed by the Trial Court.

¶43

For the sake of convenience, the parties are referred to as per their rank before the Trial Court.

¶44

Briefly stated the facts giving rise to the present

¶45

appeal are as under:

¶46

The plaintiff No.1-Iravva is the daughter of late Nagappa Basappa Koti, who had a son by name Mahadev and three daughters i.e., (i) late Smt.Gadigevva, the mother of defendant Nos.2 to 6, (ii) Smt.Iravva, the plaintiff No.1 and (iii) late Smt.Basavva, the mother of plaintiff No.2/Smt.Gangavva. The plaintiff Nos.1 and 2 i.e., Smt.Iravva and Smt.Gangavva

¶47

1 Hereinafter referred to as ‘the FDP Court’

¶48

5 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶49

HC-KAR

¶50

instituted a suit in O.S.No.273/2015 against the defendants for partition and separate possession of their legitimate share in the suit immovable properties. In the said suit, the appellant No.1 herein i.e., Mahadevappa was arrayed as defendant No.1, while the children of aforesaid late Smt.Gadigevva were arrayed as defendant Nos.2 to 6 and the children of appellant No.1Mahadevappa were arrayed as defendant Nos.7 and 8, who are appellant Nos.2 and 3 in the present appeal.

¶51

After contest, the said suit in O.S.No.273/2015 came to be decreed in favour of the plaintiffs and against the defendants vide judgment and decree dated 28.03.2019 passed by the Trial Court. It is a matter of record and undisputed fact, that as per the preliminary decree, the plaintiffs were declared to be entitled to 1/8^th share each in the suit schedule properties. The appellants herein i.e., the defendant Nos.1, 7 and 8 approached this Court in RFA No.100268/2019, which was dismissed by this Court vide judgment and decree dated 16.01.2024 whereunder the impugned judgment and decree passed by the Trial Court was confirmed and the same attained finality and became conclusive and binding upon the parties.

¶52

6 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶53

HC-KAR

¶54

Pursuant to the judgment of the Hon’ble Apex Court

¶55

in the case of Vineeta Sharma vs. Rakesh Sharma² , the plaintiffs, who had instituted the final decree proceedings in FDP No.34/2009, filed an application in I.A.No.3 before the Trial Court seeking modification of the final decree on the ground that they would be entitled to 1/4^th equal share along with defendant No.1 and defendant Nos.2 to 6 jointly. By order dated 13.06.2022, the FDP Court allowed I.A.No.3 and modified the preliminary decree and declared that the plaintiff No.1 would be entitled to 1/4^th share, plaintiff No.2 would be entitled to 1/4^th share, the defendant Nos. 2 to 6 jointly would be entitled to 1/4^th share and defendant Nos.1, 7 and 8 jointly would be entitled to 1/4^th share in the suit schedule properties. The said modified preliminary decree dated 22.06.2022 has attained finality and became conclusive and binding upon the parties. After modification of the preliminary decree by declaring that all the four branches i.e., the children of Nagappa Basappa Koti would be entitled to 1/4^th share each in sole item of suit schedule property, which is an agricultural land bearing Sy.No.123/2 measuring 4 Acres 16 guntas, the plaintiffs filed I.A.No.4 under 2 AIR 2020 SC 3717

¶56

7 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶57

HC-KAR

¶58

Order XXVI Rule 13 of the Code of Civil Procedure, 1908³ seeking appointment of ADLR/Thasildar, Dharwad as a Court Commissioner to effect the division of the suit schedule property in terms of the modified preliminary decree and to carve out plaintiffs’ 1/4^th share each in the suit schedule properties.

¶59

In this context, it is relevant to state that the appellants herein, who were arrayed as defendant Nos.1, 7 and 8 in the final decree proceedings in FDP No.34/2019, did not file any objection to the said application, which came to be allowed by the Trial Court vide its order dated 08.11.2022, which reads as under:

¶60

“ORDERS ON I. A. No.IV FILED UNDER ORDER XXVI RULE 13 OF CPC.

¶61

This application is filed by the petitioners to appoint the ADLR/Tahasildar, Dharwad as Court commissioner to divide the suit property as per the modified preliminary decree passed by this Court in this petition and carve out the petitioners' 1/4^th share each in the suit property.

¶62

2. In the accompanying affidavit it is stated that the petitioners have filed the present petition to draw final decree as per the preliminary decree passed in original

¶63

3 Hereinafter referred to as “CPC”

¶64

8 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶65

HC-KAR

¶66

suit. Thereafter they filed application and got modified the decree by way of another fresh preliminary decree drawn on 06.07.2022 as per order passed by this Court on I.A. No.3.

¶67

3. On perusal of entire material placed on record, it reveals that the preliminary decree was originally passed in O.S. No.273/2015 wherein this Court has decreed that the plaintiff No.1 and 2 are entitled for 1/8th share each in the suit property. Based on said decree they filed the present petition. During pendency of the present petition they filed I.A. No.3 under Section 151 of CPC and they sought for modification of decree. Based on said application this Court has passed a fresh preliminary decree on 22.06.2022. Based on said fresh preliminary decree they filed the present application to appoint the ADLR/Tahasildar as Court commissioner to divide the suit property. The respondents have not filed any objections and there is no any stay to the fresh preliminary decree drawn by this Court. Thus, it is clear that as per said preliminary decree the parties are entitled to get their shares in the suit property. The suit property is agricultural landed property situated within Dharwad taluka. Hence, to divide the same, demarcate the shares of the parties and submit proposal for partition of said property between the parties as per decree, it is necessary to appoint the Tahasildar. Dharwad as Court commissioner. Hence, I proceed to pass the following:

¶68

ORDER

¶69

9 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶70

HC-KAR

¶71

I.A. No.IV filed by the petitioners under Order XXVI Rule 13 R/w section 75 of CPC is hereby allowed.

¶72

The Tahasildar, Dharwad is appointed as Court commissioner. He is directed to measure, demarcate the boundaries of the suit property and submit his proposal for partition of the suit property between the parties as per the modified preliminary decree passed by this Court on 06.07.2022.

¶73

The petitioners are directed to pay commissioner's fee of Rs.2,000/-.

¶74

Office is directed to issue commission warrant if petitioners pay the commissioner fee and supply the necessary papers.

¶75

R/by: 09.01.2023

¶76

Pursuant to the aforesaid order on I.A.No.4 allowing the said application filed by the plaintiffs for appointment of Thasildar as a Court Commissioner, the Registry of the Trial Court issued commission warrant to the ADLR/Thasildar, Dharwad to visit the suit schedule property, conduct a survey and submit report along with sketch demarcating and identifying four portions of suit schedule property in terms of preliminary

¶77

10 -

¶78

NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶79

HC-KAR

¶80

decree. The ADLR/Thasildar submitted a sketch, which reads as under:

¶81

As can be seen from the aforesaid report, in the

¶82

sketch submitted by the ADLR, the entire suit schedule property was divided into four equal portions by proposing to allot portion No.1 in favour of plaintiff No.1, portion No.2 in favour of plaintiff No.2, portion No.3 in favour of defendant Nos.1, 7 and 8 jointly, and portion No.4 in favour of defendant Nos.2 to 6 jointly.

¶83

The plaintiffs and defendant No.2 submitted that they

¶84

did not have any objection to the report and sketch of the Court Commissioner. However, defendant Nos.1, 7 and 8 filed their

¶85

11 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶86

HC-KAR

¶87

objections to the report and sketch requesting the Trial Court to reject the report of the Court Commissioner. After hearing the parties, the Trial Court proceeded to pass the impugned judgment and decree accepting the report of the Court Commissioner by rejecting the objections of the appellants herein i.e., defendant Nos.1, 7 and 8 by holding as under:

¶88

“ 9. POINT No.1: There is no dispute that the present petitioners had filed suit for partition and separate possession in O.S. No.273/2015. Their said suit was decreed and it was declared that they each are entitled to get 1/8th share in the suit property by metes and bounds. Based on said preliminary decree they filed the present petition. Thereafter due to change in law i.e., by virtue of Vineeta Sharma vs Rakesh Sharma case, the petitioners filed an application in this FDP proceedings to modify the preliminary decree and allot equal share to them. After hearing both side on said application this Court allowed the said application on 22.06.2022 and it was declared that the plaintiffs No.1 and 2 each are entitled to get 1/4th equal share. defendant No.1 is entitled to get 1/4th share and defendants No.2 to 6 being legal heirs of Gadigevva they together entitled to get her 1/4th share in the suit property. Accordingly, modified preliminary decree is drawn.

¶89

10) Thereafter the petitioners filed an application to appoint the ADLR/ Tahasildar, Dharwad as Court commissioner to measure the suit property and demarcate their shares. The respondents not filed any objections to said application and after hearing the arguments, this Court allowed the said application on 08.11.2022 and appointed the Tahasildar, Dharwad as Court commissioner to measure the suit property and demarcate the shares of the parties. Accordingly, the Court commission executed the commission work and

¶90

12 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶91

HC-KAR

¶92

submitted his report.”

¶93

11) The advocate for the petitioners has submitted that he has no objections to the Court commissioner's report.

¶94

12) The advocate for the respondents filed objections contending that this Court appointed the Tahasildar as commissioner, but the ADLR has executed the commission work, hence, same is not acceptable one. There is no dispute that the ADLR is attached to Tahasildar Office, Dharwad. He executed the commission work as per order of this Court. As per section 54 of CPC it is necessary for the Court to appoint a revenue officer not below the rank of Tahasildar to effect the partition. Thus, this Court appointed the Tahasildar, Dharwad as Court commissioner. The Tahasildar, Dharwad took the assistance of ADLR and executed the commission work and submitted the report. Practically it is not possible to Tahasildar in every case to execute commission work personally. Hence, he can take the help of technical staff i.e., surveyor. Hence, this Court is of the opinion that there is no any illegality in that process. Moreover, the objection of the respondents is only technical one. Hence, that holds no water.

¶95

13) The respondents have taken another contention that the Court commissioner has not issued notice to them and he not produced RPAD receipts before the Court. But on careful perusal of commissioner's report it is crystal clear that he produced the RPAD receipts to show that he issued notices to respondents No.1, 7 and 8 through RPAD. Even he issued notice to other parties also through RPAD. Thus, said contention of the respondent No.1, 7 and 8 is also not acceptable one. Moreover, he produced the unclaimed postal covers which were sent to respondents No.1 and 7. As per those endorsements also it is clear that the respondents No.1 and 7 intentionally unclaimed the said notices. Hence, now they cannot take said defence that notice

¶96

13 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶97

HC-KAR

¶98

not served to them. Thus, said objections also holds no water.

¶99

14) The respondents taken another contention that in the whatap-taktha the commissioner has shown 5 portions of the property. On careful perusal of commissioner's report it is crystal clear that he clearly mentioned in his report that 2 guntas of land is extra land, hence, he shown the same in 5^th portion in his report. As per the decree it is clear that the extent of the suit schedule property is shown as 4 acre 16 guntas and commissioner has divided said property between the parties dividing into 4 portions as per preliminary decree and he shown those 4 portions in his report. As there is 2 guntas extra land, he shown the same in 5^th portion. The petitioners fairly submitted that they are not claiming any right over said 2 guntas land and respondents may take the same if they are entitled to get the same. Thus, it is clear that Court commissioner has executed his work with regard to extent of the property shown in the decree. Thus, the contention of the respondents is not acceptable one.

¶100

15) The respondents in their objections have taken another contention that the commissioner has not considered fertility of the land. But there is no any specific objections to show that commissioner has given unfertilized land to the respondents. On careful perusal of objections filed by the respondents it reveals that they filed formal objections and there is no any substance in their objections. Further it reveals that they have not specifically taken any objections how and for what reason the commissioner's report is illegal. On the other hand, on careful perusal of the report, it reveals that the Court commissioner after issuing notice to the respondents he executed the commission work and he demarcated the shares of the parties as per the modified preliminary decree. Thus, there is no any merit in the objections filed by the respondents. Hence, their objections are overruled.

¶101

16) The advocate for the respondents at the time of his arguments he relied on a decision reported in

¶102

14 -

¶103

NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶104

HC-KAR

¶105

AIR 2021 Karnataka 10 between N.M.Ramesh Vs. State of Karnataka and another. The said judgment is pertaining to Essential Commodities Act. Hence, the same is not applicable to this case.

¶106

17) He relied on another decision reported in ILR 2008 KAR 1840 between Parappa and others Vs. Bhimappa and another. Wherein the Hon'ble High Court of Karnataka has held that once Court commissioner submits report, the same shall be evidence in that case and that forms part of record and it is not necessary to mark the same as exhibit and examine the commissioner. However, if any party files objections challenging the correctness of said report and if they prays the Court to permit them to examine the commissioner, the Court may permit them to examine him before the Court. But herein this case, the respondents have not sought for any such prayer to permit them to cross-examine the Court commissioner and even they not made out any good grounds to reject the commissioner's report.

¶107

18) Moreover, on careful perusal of their objections it reveals that there is no merit in their objections to summon the commissioner and permit them to cross-examine him. Further it is clear that the respondents neither filed any objections to main petition or commissioner appointment application. Now after executing the commission work they filed the objections without any valid grounds. Hence, this Court is of the opinion that said judgment is not applicable to the case on hand.

¶108

19) As per modified preliminary decree passed by this Court it is crystal clear that the plaintiffs No.1 and 2 each are entitled to get 1/4^th share and defendants No.1 is entitled to get 1/4^th share and defendants No.2 to 6 together entitled to get 1/4^th share. Till today none of the respondents have challenged the said modified preliminary decree. Hence, it is clear that same attained its finality and based on said decree the commission work has been executed and commissioner has measured the suit property and demarcated the shares of the plaintiffs and defendants. The total extent of suit schedule

¶109

15 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶110

HC-KAR

¶111

property is 4 acre 16 guntas. The commissioner has allotted 01 acre 04 guntas to each plaintiffs No.1 and 2, defendant No.1 and defendants No.2 to 6 (together). Thus, it is clear that he demarcated the shares of the parties in accordance with modified preliminary decree and his report is in accordance with law. Thus, same is acceptable one and the parties are entitled to get final decree in accordance with the same. Thus, I answer point No.1 in the affirmative.

¶112

20) POINT No.2: In view of the above discussion, I proceed to pass the following:

¶113

O R D E R

¶114

The final decree petition filed by the petitioners is hereby allowed.

¶115

The court commissioner's report and map submitted by him are accepted.

¶116

The petitioners and respondents are entitled to get their respective shares as per the Court commissioner's report in the suit schedule property.

¶117

The Court commissioner's report and map are part and parcel of this order.

¶118

Parties shall bear their own costs.

¶119

Draw final decree accordingly.

¶120

(Dictated to the stenographer and transcription typed by him, corrected by me and order is pronounced in the open court on the 13^th day of October, 2023 ).

¶121

Sd/(Mahesh Chandrakanth) III Addl. Senior Civil Judge & CJM., Dharwad

¶122

16 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶123

HC-KAR

¶124

A perusal of the impugned judgment and decree will indicate that though appellants/defendants No.1, 7 and 8 contended that the Trial Court had appointed the Tahasildar whereas the commission work was conducted by the ADLR which was impermissible in law, the said contention urged by the appellants was not accepted by the Trial Court. So also, the other contention urged by the appellants that an opportunity was not provided to the appellants, who were not present at the spot when the commission work was conducted was also not accepted by the Trial Court. Aggrieved by the impugned judgment and decree passed by the Trial Court accepting the report of the Court Commissioner and directing drawing up of final decree, the appellants are before this Court by way of the present appeal.

¶125

Heard the learned counsel for the appellants and the learned counsel for the respondents, and perused the material on record.

¶126

The learned counsel for the appellants submits that the impugned judgment and decree passed by the Trial

¶127

17 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶128

HC-KAR

¶129

Court accepting the report of the Court Commissioner deserves to be set aside since the commission work was conducted by the ADLR and not by the Tahasildar who was appointed as Court Commissioner and as such, the impugned judgment and decree stands vitiated on this ground. Secondly, it was contended that the appellants were not notified and were not present at the spot when the commission work was conducted and the impugned judgment and decree accepting the report of the Court Commissioner in the absence of the appellants deserves to be set aside. It is therefore, contended that the impugned judgment and decree passed by the Trial Court may be set aside and the matter be remitted back to the Trial Court for reconsideration afresh by directing fresh/new commission work to be conducted in accordance with law.

¶130

Per contra, the learned counsel for the respondents submitted that the ADLR was equivalent in rank to the Tahasildar and merely because the ADLR who was equivalent in rank to the Tahasildar, who was appointed as Court Commissioner, conducted the

¶131

18 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶132

HC-KAR

¶133

commission work and so long as no prejudice is caused to the appellant, it cannot be said that the impugned judgment and decree warrants interference by this Court in the present appeal. That, the notices issued to the appellants by the Court Commissioner were returned with postal endorsement “unclaimed” and since the appellants did not take any steps in this regard, the Court Commissioner was justified in proceeding to conduct the commission work and proposing to divide the suit schedule properties into four equal proportions having equal value which did not cause any prejudice to the appellant. It was therefore submitted that there is no merit in the appeal and that the same is liable to be dismissed.

¶134

The following points arise for consideration in the present appeal:

¶135

(i) Whether the Trial Court was justified in accepting the report of the Court Commissioner and directing drawing up of final decree in terms of the report of the Court Commissioner?

¶136

19 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶137

HC-KAR

¶138

(ii) Whether the impugned judgment and decree passed by the Trial Court warrants interference by this Court in the present appeal?

¶139

Before adverting to the rival contentions, it is necessary to place on record that, initially, the Trial Court passed a preliminary decree holding that the plaintiffs would be entitled to 1/8^th share each in the suit schedule property. However, during the pendency of the final decree proceedings, in the light of the judgment of the Apex Court in the case of Vineeta Sharma (supra), the preliminary decree passed by the Trial Court and confirmed by this Court was modified by declaring that the plaintiff No.1, plaintiff No.2, defendant No.1, and defendants No.2 to 6 (jointly) would be entitled to 1/4^th share each in the suit schedule property. It is also an undisputed fact that the modified preliminary decree declaring that all the aforesaid parties will be entitled to 1/4^th share in the suit schedule property has attained finality and become conclusive and binding upon the parties.

¶140

A perusal of the Court Commissioner’s report and the

¶141

sketch will indicate that the topography of the suit schedule

¶142

20 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶143

HC-KAR

¶144

property does not, in any way, indicate that the value of all the four portions demarcated as 1, 2, 3 and 4 are different from each other. In fact, the Trial Court, in the impugned judgment and decree, records that the plaintiffs fairly contend that in addition to four equal portions, extra two guntas of land down as portion No.5 was not being claimed by the plaintiffs. The Trial Court also took into account that the appellants, in their objections, did not take up any contention that portion No.3 allotted to them was lesser in value compared to the remaining portions. The Trial Court also noticed the fact that though the appellants stated that portion No.3 allotted to the appellant No.1 was said to be less fertile, the appellant No.1 did not place any legal or acceptable evidence in this regard. On the other hand, the Trial Court took note of the fact that all the four portions including the portion proposed to be allotted to appellant No.1/plaintiff No.1 were equal in extent and that no prejudice would be caused to appellant No.1 if the said portion was allotted towards his 1/4^th share in the suit schedule property. Under these circumstances, we are of the view that the Trial Court was fully justified in accepting the report of the Court Commissioner which was perfectly just and equitable and did not cause any prejudice,

¶145

21 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶146

HC-KAR

¶147

hardship or loss to any of the parties warranting interference by this Court in the present appeal.

¶148

The appellants had contended that despite the Trial Court appointing the Tahasildar as a Court Commissioner, it was the ADLR who had conducted the local inspection and who had conducted the survey and submitted his report which is impermissible in law and the same deserves to be set aside. In this context, it is pertinent to note that both the Tahasildar and the ADLR occupy the same rank/status in hierarchy. Under identical circumstances in the case of Sri. Ganesh Vishnu Hegde Vs. Bhavani Dattatreya Hegde and another [RSA No.101274/2022, disposed of on 05.11.2024], a learned Single Judge of this Court came to the conclusion that merely because ADLR conducted the survey instead of the Tahasildar, the said circumstance would not be a basis to interfere with the report and sketch of the Court Commissioner or the judgment and decree passed by the Trial Court accepting the same. In Ganesh Vishnu Hegde’s case (supra), this Court held as under:

¶149

“8. The question that falls for consideration is whether the trial Court was justified in accepting the

¶150

22 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶151

HC-KAR

¶152

Commissioner’s report submitted by the ADLR is in accordance with 54 CPC?

¶153

9. Section 54 CPC reads as under:

¶154

“ 54. Partition of estate or separation

¶155

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 shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.”

¶156

10. Section 54 CPC envisages that primary duty is of the Court to partition the estate and cause separation of share, and if necessary, the Court can appoint a Revenue Officer not below the rank of Tahsildar as a Commissioner and seek report. In the instant case, the trial Court / FDP Court appointed the Tahsildar as Court Commissioner to effect partition in terms of the preliminary decree. The Tahsildar delegated the power to survey the suit property and submit his report, the commission work was carried out by the ADLR, the Tahsildar who is the head of revenue taluk has obtained the assistance of the surveyor (ADLR) and as per Sections 11, 12 and 18 of the Act, the ADLR and the Tahsildar are

¶157

23 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶158

HC-KAR

¶159

of the same and equivalent rank thus the report submitted by the ADLR, which is accepted by the trial Court cannot be said contrary to the Section 54 CPC. The decision placed by the learned counsel for the appellant in the case of Sanga Reddy stated supra, is distinguishable as in the said facts the partition was ordered through Court commissioner. In the instant case, the trial Court has felt it necessary to secure the report of a Revenue Officer and appointed the Tahsildar as a Court Commissioner, and the ADLR who submitted the report is not below the rank of Tahsildar and hence under these circumstance this Court is of the considered view that the order passed by the trial Court is in terms of Section 54 CPC and there is no error or illegality committed by the Courts below warranting any interferences by this Court and this Court pass the following:

¶160

ORDER

¶161

(i) The Regular Second Appeal is hereby dismissed .

¶162

(ii) The judgment and decree of the Courts below stands confirmed .”

¶163

In the instant case, the contention urged by the learned counsel for the appellant that the ADLR could not have conducted the commission work stands perfectly answered by this Court in Ganesh Vishnu Hegde’s case (supra) and

¶164

24 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶165

HC-KAR

¶166

consequently, the said contention urged by the learned counsel for the appellants cannot be accepted.

¶167

Learned counsel for the appellant also placed reliance upon the judgment of this Court in i) Combe v. Combe⁴ , and ii) Shamanna Setty Vs. B.L.Channegowda⁵ and iii) Somaraddi and others Vs. Smt. Tayavva (since deceased by L.Rs)⁶ in order to contend that so long as the Trial Court had appointed the Tahasildar as Court Commissioner, it was impermissible for the ADLR to have conducted the survey and submit a report which could not have been accepted by the Trial Court. In our considered opinion, as stated supra, apart from the fact that the said contention has been negatived by the Trial Court, so long as the ADLR, who is equivalent to the rank of the Tahasildar as held by this Court in Ganesh Vishnu Hegde’s case (supra), it cannot be said that there is any demonstrable prejudice, loss, injury or hardship caused to the appellant in the ADLR, who is equivalent in rank to the Tahasildar, conducting the commission work and submitting his report which was accepted by the Trial Court. In

¶168

4 (1951) 2 KB 215 (CA)

¶169

5 (2007)5 Kant LJ 494

¶170

6 RSA No.100328/2015, disposed off on 05.06.2015

¶171

25 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶172

HC-KAR

¶173

this context, it is relevant to state that Section 99 of the Code of Civil Procedure, 1908, which reads as under:

¶174

“ 99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.– No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:

¶175

Provided that nothing in this section shall apply to non-joinder of a necessary party.”

¶176

In the case on hand, in the absence of any demonstrable prejudice not affecting the merits of the case or the jurisdiction of the Court, it cannot be said that there is any error, defect or irregularity in any proceedings in the suit including the ADLR conducting the survey and submitting the report despite the Tahasildar being appointed by the Trial Court, and the question of reversing or substantially varying or remanding the matter in the present appeal would not arise in the facts and circumstances of the instant case and

¶177

26 - NC: 2025:KHC-D:13006-DB RFA No. 100012 of 2024

¶178

HC-KAR

¶179

consequently, even this contention urged by the appellant cannot be accepted.

¶180

Insofar as the contention urged by the appellants that they were not notified of the proposed commission work to be conducted by the Court Commissioner is concerned, even this contention has been dealt with by the Trial Court which has taken note of the fact that the appellants did not avoid the service of notice by the Court Commissioner and the postal endorsement indicated that it was returned as “unclaimed”. At any rate, so long as the report of the Court Commissioner and the sketch equitably, justly, reasonably and properly purports to divide and effect the partition of the sole item of suit schedule property by allotting four equal shares in favour of the parties, in our considered opinion, this is not a fit case for interference by this Court in the present appeal and even this contention of the appellants cannot be accepted.

¶181

A perusal of the various grounds and contentions put forth and urged by the appellants in the present appeal will also indicate that it is not their case that the merits of the division made by the Court Commissioner has not been assailed or

¶182