Dismissed¶¶96

Harijana Nagaraju v. Smt. Harijana Nanji

Karnataka HC22 Aug 2025RSA/95/2019

Case brief

AI extract

What is this about?

Regular Second Appeal Section 100 CPC dismissed; final decree proceedings FDP No.1/2013; preliminary decree finality; bar on disputing unchallenged preliminary decree in appeal from final decree; Order XLI Rule 1 read with Section 97 CPC appeal; acceptance of Court Commissioner (Taluka Surveyor) report; no statement of objections; no objections to Commissioner's report; 2/3rd share partition; mesne profits petition dismissed; Selvi v. Gopalakrishnan Nayar (2018) 7 SCC 319 relied on; Senior Civil Judge Virajpet; Civil Judge JMFC Ponnampet; O.S. No.50 of 2010; Karnataka High Court 2025; Ashok S.Kinagi J.

What did the court decide?

None; the impugned judgments and final decree confirmed, with no order as to costs ¶¶96

Harijana Nagaraju Vs Smt. Harijana Nanji — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

None; the impugned judgments and final decree confirmed, with no order as to costs

¶¶96

Issue for consideration

Whether the respondent in the final decree proceedings, having not challenged the preliminary decree passed in O.S. No.50 of 2010 (which has attained finality), is precluded from disputing its correctness in the appeal preferred from the final decree. +2 more

¶¶82

Court's answer

A respondent in final decree proceedings who did not challenge the preliminary decree, which has attained finality, is precluded from disputing its correctness in an appeal preferred from the final decree.

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Ratio / Principle

Since the respondent in the FDP filed no objections to the main petition or to the Commissioner's report, the FDP Court rightly accepted the Commissioner's report and passed the final decree.

¶¶75

Key takeaways

On reassessment of the material on record, the First Appellate Court rightly concurred with the findings recorded by the FDP Court and dismissed the appeal.ratio¶¶79
This Court concurs with the findings of both the Courts below; there is no error in the impugned judgment and final decree and no substantial question of law arises for consideration in the appeal.ratio¶¶89

Detailed headnote1 paragraphs

High Court of Karnataka (Bengaluru), RSA No. 95 of 2019, decided 22.08.2025 by Ashok S.Kinagi, J. — Regular Second Appeal under Section 100 CPC against the judgment and decree dated 04.10.2018 in R.A. No.8 of 2015 (Senior Civil Judge, Virajpet), which had confirmed the final decree dated 22.11.2014 in FDP No.1 of 2013 (Civil Judge and JMFC, Ponnampet) arising from the preliminary decree dated 27.04.2013 in O.S. No.50 of 2010 (partition), whereby petitioner Nos.2 and 3 were held entitled to a 2/3rd share. In the FDP, the respondent appeared through counsel but filed neither a statement of objections nor objections to the Taluka Surveyor's Commission report; the FDP Court accepted the report, drew the final decree allotting the 2/3rd share with possession, and dismissed the mesne-profits claim. Holding: a party who does not challenge the preliminary decree, which has attained finality, is precluded from disputing its correctness in an appeal from the final decree, as held by the Supreme Court in Selvi v. Gopalakrishnan Nayar, (2018) 7 SCC 319, relied on by the First Appellate Court; both Courts below concurrently found against the respondent, and no substantial question of law arose. Appeal dismissed; impugned judgments and final decree confirmed; no costs.

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NC: 2025:KHC:32859 RSA No. 95 of 2019

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF AUGUST, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 95 OF 2019 (PAR)

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BETWEEN:

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HARIJANA NAGARAJU S/O LATE KARKI @ KANIKE AGED ABOUT 49 YEARS R/AT KANOOR VILLAGE AND POST PONNAMPET NAD SOUTH KODAGU – 576 101

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…APPELLANT

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(BY SRI. SHIVASHANKAR K. & SRI. VIJAYA KUMAR, ADVOCATES)

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AND:

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Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA

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SMT. HARIJANA NANJI W/O LATE KARKI @ KANIKE DEAD BY HER LRS.

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SMT. HARIJANA SAROJA D/O LATE KARKI @ KANIKE AGED ABOUT 54 YEARS

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2(A) H.M. MANJULA D/O HARIJANA SAROJA W/O MANJU AGED ABOUT 40 YEARS

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HC-KAR

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2(B) H.S. RAMESH S/O HARIJANA SAROJA W/O SOMU AGED ABOUT 38 YEARS

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2(C) H.S. NAGENDRA S/O HARIJANA SAROJA W/O SOMU AGED ABOUT 36 YEARS

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ALL ARE R/AT BRAMHAGIRIPURA KANOOR VILLAGE AND POST PONNUMPET TALUK SOUTH KODAGU DISTRICT.

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SMT HARIJANA BHAGYA D/O LATE KARKI @ KANIKE AGED ABOUT 52 YEARS R/AT KAMPPARAMANE PAISARY KANOOR VILLAGE AND POST PONNAMPET NAD SOUTH KODAGU – 576 101

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…RESPONDENTS

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[BY SRI. MOHANA CHANDRA P, ADVOCATE FOR R2 (A-C)]

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 04.10.2018 PASSED IN RA.NO.8/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, VIRAJPET, DISMISSING THE APPEAL AND CONFIRMING JUDGMENT AND DECREE DATED 22.11.2014 PASSED IN FDP No.1/2013 ON THE FILE OF THE CIVIL JUDGE AND JMFC, PONNAMPET.

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

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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NC: 2025:KHC:32859 RSA No. 95 of 2019

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HC-KAR

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 04.10.2018 passed in R.A. No.8 of 2015 by the learned Senior Civil Judge, Virajpet and the final decree passed in FDP No.1 of 2013 dated 22.11.2014 by the learned Civil Judge (Junior Division) and JMFC, Ponnampet (for short, ‘the FDP Court’).

¶34

The parties are referred to, based on their rankings before the FDP Court. The appellant was the respondent and the respondents were the petitioners in the final decree proceedings.

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Brief facts, leading rise to the filing of this appeal are as follows:

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The petitioners filed a suit against the respondent in O.S. No.50 of 2010 for partition and separate possession. The said suit was decreed and a preliminary decree was passed on 27.04.2013 and

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NC: 2025:KHC:32859 RSA No. 95 of 2019

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HC-KAR

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held that the petitioner Nos.2 and 3 are entitled to get 2/3^rd share in the suit schedule properties with reference to both good and bad soil and after survey and demarcation by metes and bounds, and for separate delivery of possession.

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After the disposal of the suit, the petitioners have filed the final decree proceedings in FDP No.1 of 2013.

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The respondent in final decree proceedings appeared through the counsel, but did not file the statement of objections.

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The FDP Court conducted an enquiry to ascertain the mesne profits. The petitioners filed an affidavit in lieu of examination-in-chief. The respondent has not led any rebuttal evidence. The FDP Court framed the points for determination. The Court also appointed a Court Commissioner, and the Court Commissioner submitted a report to the Court. The respondent has

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NC: 2025:KHC:32859 RSA No. 95 of 2019

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HC-KAR

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neither filed the objections to the petition nor filed the objections to the Commissioner’s report. The FDP Court accepted the Commissioner’s report, and allowed the final decree proceedings and drawn a final decree and declared that petitioner Nos.2 and 3 are entitled to 2/3^rd share in the petition schedule properties as per the division made by the Commissioner in the Commission report, and they shall be put in possession of the petition schedule properties. The petition in respect of mesne profit was dismissed.

¶48

The respondent aggrieved by the final decree passed in FDP No.1 of 2013 preferred an appeal under Order XLI Rule 1 read with Section 97 of the Civil Procedure Code, 1908 in R.A. No.8 of 2015, on the file of the learned Senior Civil Judge, Virajpet.

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¶50

NC: 2025:KHC:32859 RSA No. 95 of 2019

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HC-KAR

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The First Appellate Court, after re-appreciating the entire evidence on record dismissed the appeal vide judgment dated 04.10.2018.

¶53

The respondent aggrieved by the impugned judgment and final decree, filed the instant Regular Second Appeal.

¶54

Heard the arguments of the learned counsel for the respondent.

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Learned counsel for the respondent in final decree proceedings submits that the respondent has produced sufficient documents to establish that he is the owner in possession and enjoyment of the properties, and further, produced the document marked as Exhibit D-1, which clearly shows that the plaintiff's father had retained the property on the eastern side portion and sold on the western side. He submits that the respondent has produced all the records to show that he is in possession and

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NC: 2025:KHC:32859 RSA No. 95 of 2019

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HC-KAR

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enjoyment of the suit properties, and the revenue records stand in his name and the said aspect was not adequately considered by the Courts below and have committed an error in passing the impugned judgment. Hence, on these grounds, he prays to allow the appeal.

¶60

Perused the records, and considered the submissions of the learned counsel for the respondent in the final decree proceedings.

¶61

There is no dispute that the petitioners have filed a suit in O.S. No.50 of 2010 for partition and separate possession. The said suit was decreed by judgment and preliminary decree dated 27.04.2013. During the pendency of the suit, plaintiff No.1 died. Thereafter, plaintiff Nos.2 and 3 continued the suit.

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After the disposal of the suit in O.S. No.50 of 2010, the petitioners have filed the final decree

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8 - NC: 2025:KHC:32859 RSA No. 95 of 2019

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HC-KAR

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proceedings in FDP No.1 of 2013 for drawing up a final decree in terms of the preliminary decree.

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The FDP Court issued a notice to the respondent. The respondent, though appeared through the counsel, but did not file a statement of objections. Hence, the objections was taken as not filed.

¶67

Thereafter, the FDP Court appointed the Taluka Surveyor as a Court Commissioner to demarcate the properties in accordance with the preliminary decree. The Taluka Surveyor issued a notice to both the parties and answered as per the memo of instructions filed by the petitioners.

¶68

The respondent did not file an objections to the Commissioner's report.

¶69

The FDP Court accepted the Commissioner's report and allowed the petition, and held that petitioner Nos.2 and 3 are entitled to 2/3^rd share in the petition schedule properties as per the divisions made by the

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9 - NC: 2025:KHC:32859 RSA No. 95 of 2019

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HC-KAR

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Commissioner in the Commission’s report, and they shall be put in possession of the petition schedule properties.

¶73

Respondent, aggrieved by the final decree preferred an appeal in R.A. No.8 of 2015.

¶74

The First Appellate Court, on reassessment of the material placed on record, observed that, after the disposal of the final decree proceedings on 22.11.2014, a final decree was engrossed on the stamp paper furnished by the petitioners. Thereafter, on 14.01.2015, the case was advanced so as to give effect to the order, by handing over possession of the properties as per the final decree.

¶75

Admittedly, the respondent has not filed any objections to the Commissioner’s report and also statement of objections to the main petition. The FDP Court has rightly accepted the Commissioner’s report, and passed the final decree, and the First

¶76

10 -

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NC: 2025:KHC:32859 RSA No. 95 of 2019

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HC-KAR

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Appellate Court on reassessment of material on record has rightly concurred with the findings recorded by the FDP Court, and dismissed the appeal.

¶80

Both the Courts below have concurrently recorded the findings against the respondent in the final decree proceedings. The grounds raised in the appeal are on the merits of the case.

¶81

Admittedly, the respondent has not challenged the preliminary decree passed in the suit in O.S No.50 of 2010. The preliminary decree passed in the said suit has attained finality.

¶82

The respondent in final decree proceedings, without challenging the preliminary decree, is precluded from disputing its correctness in an appeal, which is preferred from the final decree.

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The First Appellate Court has placed reliance on the judgment passed by the Hon'ble Apex Court in the

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11 -

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NC: 2025:KHC:32859 RSA No. 95 of 2019

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HC-KAR

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case of Selvi v. Gopalakrishnan Nayar reported in (2018) 7 SCC 319 wherein the Hon'ble Apex Court held as follows:

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“Where any party aggrieved by a preliminary decree passed, does not appeal from such a decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the said final decree.”

¶89

On overall analysis of both the judgments and perusal of the entire material on record, I concur with the findings recorded by both the Courts below, and I am of the considered view that both the Courts below were justified in passing the impugned judgments and final decree. I do not find any error in the impugned judgment and final decree, nor any substantial question of law that arises for my consideration in this appeal.

¶90

In view of the above discussion, I proceed to pass the following Order:

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NC: 2025:KHC:32859 RSA No. 95 of 2019

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HC-KAR

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ORDER

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(i) The Regular Second Appeal is dismissed .

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(ii) The impugned judgments and final decree are hereby confirmed.

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(iii) No order as to the costs.

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Sd/(ASHOK S.KINAGI) JUDGE

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List No.: 1 Sl No.: 8

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CT:KHV

Procedural history

How this case reached the court

AI extract

Order under challenge
Judgment and decree dated 04.10.2018 in R.A. No.8 of 2015 dismissing the appeal against the final decree dated 22.11.2014 in FDP No.1/2013 and confirming it¶¶33
Senior Civil Judge, Virajpet · 04.10.2018
Prior proceeding
Petitioners (present respondents) filed suit O.S. No.50 of 2010 against the respondent (present appellant) for partition and separate possession; suit decreed by judgment and preliminary decree dated 27.04.2013¶¶61
Prior proceeding
Preliminary decree held petitioner Nos.2 and 3 entitled to 2/3rd share in suit schedule properties (good and bad soil) with demarcation by metes and bounds and separate possession¶¶40
Prior proceeding
After disposal of the suit, petitioners filed final decree proceedings in FDP No.1 of 2013 for drawing up final decree in terms of the preliminary decree¶¶41
Prior proceeding
Respondent in the FDP appeared through counsel but did not file statement of objections; objections taken as not filed¶¶42
Prior proceeding
FDP Court appointed the Taluka Surveyor as Court Commissioner to demarcate the properties in accordance with the preliminary decree¶¶67
Prior proceeding
Respondent filed no objections to the Commissioner's report¶¶68
Prior proceeding
FDP Court accepted the Commissioner's report, allowed the final decree proceedings and drew a final decree declaring petitioner Nos.2 and 3 entitled to 2/3rd share in petition schedule properties and possession thereof¶¶47
Prior proceeding
Petition in respect of mesne profits in the FDP was dismissed¶¶47
Prior proceeding
Respondent, aggrieved by the final decree, preferred appeal R.A. No.8 of 2015 under Order XLI Rule 1 read with Section 97 CPC before the Senior Civil Judge, Virajpet¶¶48
Prior proceeding
First Appellate Court, after re-appreciating the entire evidence, dismissed the appeal by judgment dated 04.10.2018¶¶52
Prior proceeding
First Appellate Court recorded that after disposal of the FDP on 22.11.2014 the final decree was engrossed on stamp paper and on 14.01.2015 the case was advanced to hand over possession as per the final decree¶¶74

Harijana Nagaraju v. Smt. Harijana Nanji

Case brief

What is this about?

What did the court decide?

Harijana Nagaraju v. Smt. Harijana Nanji

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

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Procedural history

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