- 1 - NC: 2025:KHC:11515 RSA No. 338 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 338 OF 2022 (PAR) BETWEEN: 1. SRI VINOD AGED ABOUT 51 YEARS S/O LATE KRISHNOJI RAO C/O UPHOLSTERY WORK MAHADEVPET MADIKERI NORTH KODAGU 571 201 2. SRI KUMAR AGED ABOUT 46 YEARS S/O LATE KRISHNOJI RAO C/O UPHOLSTERY WORK MAHADEVPET MADIKERI NORTH KODAGU 571 201 …APPELLANTS (BY SRI.G.HARSHA, ADVOCATE) AND: 1. SMT SUMATHI AGED ABOUT 52 YEARS W/O LATE SRINIVASA RAO Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:11515 RSA No. 338 of 2022 R/AT D NO.5 OPH ROAD OPP KAMATH HOTEL BANGALORE 560 051 2. CHI HEMANTH @ GIRISH AGED ABOUT 26 YEARS W/O LATE SRINIVASA RAO R/AT D NO.5 OPH ROAD OPP KAMATH HOTEL BANGALORE 560 051 3. SMT BHARATHI AGED ABOUT 60 YEARS D/O LATE KRISHNOJI RAO W/O ASHOK RAO R/AT DOOR NO.114 BETWEEN 12TH AND 13TH CROSS MARGOSA ROAD MALLESHWARAM BENGALURU - 03 4. SMT MANJULA AGED ABOUT 56 YEARS D/O LATE KRISHNOJI RAO W/O D SURESH R/AT DOOR NO.22/3A SAGMANFI STREET KURNOOL A P 518001 …RESPONDENTS (BY SRI. MANMOHAN P N.,ADVOCATE FOR C/R1) - 3 - NC: 2025:KHC:11515 RSA No. 338 of 2022 THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 02.12.2020 PASSED IN RA.NO. 74/2019 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.12.2018 PASSED IN FDP NO.4/2005 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, MYSURU. ALLOWING THE PETITION FILED UNDER ORDER XX RULE 18 OF CPC. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant, challenging the Judgment and decree dated 02.12.2020, passed in R.A No.74/2019 by the Learned Principal District and Sessions Judge, Mysuru and the final decree dated 21.12.2018 passed in FDP.No.04/2005 by the learned First Additional Senior Civil Judge and CJM, Mysuru. - 4 - NC: 2025:KHC:11515 RSA No. 338 of 2022 2. For convenience, the parties are referred to, based on their rankings before the trial court. Appellants were the defendant Nos.4 and 5, respondent Nos.1 and 2 were the plaintiffs, respondent Nos.3 and 4 were the defendant No.1(a) and defendant No.1(b). 3. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiffs filed a suit against the defendants for partition and separate possession in O.S.No.87/1994 on the file of the Principal Senior Civil Judge, Mysuru. After the contest, the plaintiff's suit came to be decreed, and the preliminary decree was passed. In the preliminary decree, it is declared that the plaintiffs are entitled to a 2/3rd share in the 'A' schedule property. But it is contended that they were entitled to a 5/6th share. The plaintiffs aggrieved by the judgment and preliminary decree passed in O.S.No. 87/1994, preferred an appeal in R.A.No.42/2003, and defendant No.1 also filed the cross objection. The first appellate Court modified the judgment - 5 - NC: 2025:KHC:11515 RSA No. 338 of 2022 and decree passed by the Trial Court and dismissed the cross objection filed by defendant No.1. The judgment and decree of the trial Court regarding 'B' and 'C' of the suit schedule properties have been confirmed. Earlier, defendant No.1 filed FDP.No.27/2002 on the file of learned Principal Senior Civil Judge, Mysore, for drawing up a final decree. Subsequently, the decree in respect of 'A' schedule property was modified. Hence, the final decree has to be drawn as per the preliminary decree passed in R.A.No.42/2003, regarding 'A' schedule property. Hence, this petition. 4. The defendant Nos.3 and 5 filed objections contending that the petition filed by the plaintiffs is not maintainable. Therefore, the appointment of Court Commissioner to demarcate the parties' share in this petition is not possible. Hence, prays to dismiss the petition. 5. Defendant No.4 did not file the objections to the petition. The FDP Court appointed a Court Commissioner - 6 - NC: 2025:KHC:11515 RSA No. 338 of 2022 for local inspection of the properties and demarcated shares of the parties and submitted a report. 6. Perusal of the FDP Court's order, discloses that, the Court Commissioner submitted a report to the Final Decree Court. The petitioners/plaintiffs did not file any objections to the commissioner's report. Respondent No.5/defendant No.5 filed the objections to the commissioner's report, contending that the Court Commissioner has not satisfactorily explained in what manner the entire properties can be bifurcated and hence, prays to reject the Court Commissioner's report. 7. The FDP Court, after hearing the arguments of the learned Counsel for the parties on the Commissioner's report, allowed the petition and accepted the Court Commissioner's report and ordered to draw the final decree in terms of the preliminary decree passed in O.S.No.87/1994 in respect of 'B' and 'C' schedule properties and as per the preliminary decree passed in R.A.No.42/2003 in respect of 'A' schedule property. It is - 7 - NC: 2025:KHC:11515 RSA No. 338 of 2022 declared that the Court Commissioner report shall form the part and parcel of the final decree in respect of 'A', 'B' and 'C' schedule properties. Respondent Nos.4 and 5/defendant Nos.4 and 5, aggrieved by the final decree passed in FDP No.04/2005, preferred an appeal in R.A.No.74/2019 on the file of Principal District and Sessions Judge Mysore. The first appellate Court, on the re-assessment of oral and documentary evidence and material placed on record, dismissed the appeal with cost vide judgment dated 02.12.2020. Respondent Nos.4 and 5 /defendant Nos.4 and 5, aggrieved by the judgment and final decree passed in R.A.No.74/2019, filed this Regular Second Appeal. 8. Heard the arguments of learned counsel for the respondent Nos.4 and 5/ defendant Nos.4 and 5. 9. Learned counsel for the respondent/defendant Nos.4 and 5 submits that the bifurcation of the suit schedule properties by metes and bounds could not have been advantageous to the respondent/defendant Nos.4 - 8 - NC: 2025:KHC:11515 RSA No. 338 of 2022 and 5, to whom the share allotted could be rendered. He submits that the bifurcation of the suit schedule properties ought to have been done by the Tahsildar and not by the Court Commissioner. Further, he submits that the first appellate Court failed to consider the provisions of Sections 6 and 8 of the Hindu Succession Act 1956 and committed an error in dismissing the appeal with cost. Hence, on these grounds, he prays to allow the appeal. 10. Perused the records and considered the submissions of the learned counsel for the respondent/defendant Nos.4 and 5. 11. It is not in dispute that the plaintiffs filed the suit in O.S.No.87/1994 for the relief of partition and separate possession on the file of the Principal Senior Civil Judge, CJM, Mysore and decreed the suit. An appeal came to be filed in R.A.No.42/2003 on the file of the Principal District and Sessions Judge, Mysore. 12. The first appellate Court has modified the judgment and preliminary decree of the trial Court to the - 9 - NC: 2025:KHC:11515 RSA No. 338 of 2022 extent of 'A' schedule of the suit properties, and the share of the plaintiffs was enhanced to 5/6th share. The judgment and decree passed by the first appellate Court in R.A.No.42/2003, has attended the finality. The plaintiffs/petitioners filed a Final Decree Proceedings in FDP No.4/2005 wherein the FDP Court appointed the Court Commissioner to demarcate the shares of the parties in suit schedule properties. The Court Commissioner submitted a report, though the respondent/defendant Nos.4 and 5 filed the objections, FDP Court overruled the objections of respondent/defendant Nos.4 and 5 and accepted the report of the Court Commissioner and passed the Final Decree. 13. The appellate Court in R.A.No.74/2019, after re-assessing the material on record confirmed the final decree passed in FDP.No.04/2005. Both the Courts below have concurrently recorded the finding of fact against respondent/defendant Nos.4 and 5. Further scope of interference in FDP proceedings in the second appeal is - 10 - NC: 2025:KHC:11515 RSA No. 338 of 2022 very limited. I do not find any error in the impugned judgment and order or any substantial questions of law that arise for consideration in this appeal. Accordingly, I pass the following order: ORDER i) The appeal is dismissed. ii) The impugned judgment and final decree passed by the Courts below are hereby confirmed. iii) No order as to the costs. iv) In view of the dismissal of the appeal, IA No.1/2023 and IA.No.2/2023, does not survive for consideration. Accordingly, IA No.1/2023 and IA.No.2/2023 are disposed of. SD/- (ASHOK S.KINAGI) JUDGE RCK List No.: 1 Sl No.: 21