- 1 - NC: 2025:KHC-D:2662-DB RFA No. 100017 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100017 OF 2024 (FDP) BETWEEN: MOHAN S/O SHIVARAYAPPA KIWATI AGE. 35 YEARS, OCC. AGRICULTURE R/O. H.NO. 2443, RAVIWAR PETH, MALAGAR GALLI, GOKAK, TQ. GOKAK, DIST. BELAGAVI- 590001 …APPELLANT (BY SRI. VINAY S. KOUJALAGI, ADV) AND: 1. KEERTHI D/O MOHAN KIWATI AGE 9 YEARS, OCC. STUDENT R/O. H.NO. 2443, RAVIWAR PETH, MALAGAR GALLI, GOKAK, TQ. GOKAK, DIST. BELAGAVI NOW AT MAHANTESH B. TOTAGI KAMATHI FLAT, MASTHAMMA NAGAR, MADIHAL, DHARWAD - 580001. 2. ANU D/O MOHAN KIWATI AGE 9 YEARS, OCC. STUDENT R/O. H.NO. 2443, RAVIWAR PETH, MALAGAR GALLI, GOKAK, TQ. GOKAK, DIST. BELAGAVI NOW AT MAHANTESH B. TOTAGI KAMATHI FLAT, MASTHAMMA NAGAR, MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.02.21 12:30:44 +0530 - 2 - NC: 2025:KHC-D:2662-DB RFA No. 100017 of 2024 MADIHAL, DHARWAD - 580001. SINCE R1 & R2 ARE MINORS, REP BY THEIR MINOR GUARDIAN MOTHER R3 3. POOJA W/O MOHAN KIWATI AGE. 30 YEARS, OCC. HOUSEHOLD WORK R/O. H.NO. 2443, RAVIWAR PETH, MALAGAR GALLI, GOKAK, TQ. GOKAK, DIST. BELAGAVI NOW AT MAHANTESH B. TOTAGI KAMATHI FLAT, MASTHAMMA NAGAR, MADIHAL, DHARWAD - 580001. 4. HANAMAVVA W/O SHIVARAYAPPA KIWATI AGE. 66 YEARS, OCC. AGRICULTURE R/O. RAVIWAR PETH, MALAGAR GALLI, GOKAK, TQ. GOKAK, DIST. BELAGAVI- 590001. 5. IRANNA S/O SHIVARAYAPPA KIWATI AGE. 50 YEARS, OCC. AGRICUTLURE R/O. R.S. NO.289/3B/1, FLAT NO.7, VIDYA NAGAR, GOKAK, TQ. GOKAK, DIST. BELAGAVI -590001. 6. BASAVARAJ S/O SHIVARAYAPPA KIWATI AGE. 48 YEARS, OCC. AGRICULTURE R/O. H.NO.47/1, ADAVI FLAT, BIDNAL, HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD 580001. 7. ANAND S/O SHIVARAYAPPA KIWATI - 3 - NC: 2025:KHC-D:2662-DB RFA No. 100017 of 2024 AGE. 45 YEARS, OCC. AGRICULTURE R/O. H.NO.47/1, ADAVI FLAT, BIDNAL, HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD 580001. 8. UDAYA S/O SHIVARAYAPPA KIWATI AGE. 42 YEARS, OCC. AGRICULTURE R/O. H.NO.47/1, ADAVI FLAT, BIDNAL, NEAR NO.10 SCHOOL, HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD 580001. …RESPONDENTS (BY SMT. P.G. NAIK, ADV FOR R1 TO R3, NOTICE TO R4 TO R8 ARE SERVED) ----- THIS RFA IS FILED UNDER SEC. 96 READ WITH ORDER 41 RULE 1 OF CPC., PRAYING TO CALL FOR THE RECORDS, ALLOW THE APPEAL AND SET ASIDE THE ORER AND DECREE DATED 14.12.2023 PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE, GOKAK IN FDP NO. 57/2022, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 4 - NC: 2025:KHC-D:2662-DB RFA No. 100017 of 2024 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellant, challenging the final decree dated 14.12.2023 passed in FDP.No.57/2022 by the learned I Additional Senior Civil Judge, Gokak. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The Appellant was defendant No.6, respondent Nos. 1 to 3 were the plaintiff Nos.1 to 3 and respondent Nos. 4 to 8 were defendant Nos.1 to 5. 3. Brief facts leading rise to the filing of this regular first appeal are as follows: The plaintiffs filed a suit against the defendants for partition and separate possession in O.S.No.720/2021. The said suit was decreed, and a judgment and preliminary decree was drawn vide preliminary decree dated 1.7.2022. The judgment and preliminary decree passed in O.S.No.720/2021 was challenged in RFA - 5 - NC: 2025:KHC-D:2662-DB RFA No. 100017 of 2024 No.100238/2023. This Court dismissed the said appeal vide judgment dated 20.12.2023. The plaintiffs filed a petition for drawing the final decree in FDP No.57/2022. Defendant No.6 filed objections to the main petition. The trial Court appointed the ADLR, Gokak, as Court Commissioner to submit a report. The ADLR, Gokak, submitted a report to which defendant No.6 filed objections on 25.11.2023. The trial Court allowed the petition, and ordered to draw a final decree in terms of the preliminary decree by allotting shares of the parties as per the preliminary decree of the said suit with the assistance of the reports of the Court Commissioner, and ordered that the sketch prepared by them shall be the part and parcel of the final decree. Defendant No.6, aggrieved by the final decree, filed this appeal under Section 97 of the Code of Civil Procedure. 4. Heard learned counsel for defendant No.6, and learned counsel for the plaintiffs. - 6 - NC: 2025:KHC-D:2662-DB RFA No. 100017 of 2024 5. Learned counsel for defendant No.6 submits that the Court Commissioner before carrying out the commission work, did not issue a notice. The Commissioner prepared the report behind the back of defendant No.6. He submits that, the Commissioner’s work was done only on the paper, and has not visited the spot. The trial Court did not consider the aforementioned aspect and passed a final decree. The final decree passed by the trial Court is perverse and arbitrary. Hence, on these grounds, he prays to allow the appeal. 6. Per contra, the learned counsel for the plaintiffs supported the final decree, and he submits that the Court Commissioner, before visiting the spot, issued a notice calling upon the parties to be present on the spot. The Commissioner has carried out the work on the spot, and submitted a report. The trial Court has rightly accepted the Commissioner’s report, and passed the final decree. Hence, prays to dismiss the appeal. - 7 - NC: 2025:KHC-D:2662-DB RFA No. 100017 of 2024 7. Perused the records, and considered the submissions of the learned counsel for the parties. The points, that would arise for our consideration are; 1) Whether defendant No.6 prove that the trial Court committed an error in drawing the final decree without considering the objections filed to the Court Commissioner’s report? 2) What order? Re. Point No.1 : 8. It is not in dispute that the plaintiffs filed a suit in O.S.No.720/2021 for partition and separate possession regarding the suit schedule properties. The trial Court, after the full-fledged trial, decreed the suit of the plaintiffs vide judgment and preliminary decree dated 1.7.2022. The judgment and preliminary decree passed in O.S.No.720/2021 was challenged in RFA No.100238/2023. This Court, vide judgment dated 20.12.2023, dismissed the appeal. The plaintiffs filed a petition in FDP proceedings numbered, FDP No.57/2022. A notice was issued to the defendants. The defendants No.1 to 5, - 8 - NC: 2025:KHC-D:2662-DB RFA No. 100017 of 2024 despite service of notice, did not appear. Hence, they were placed absent. Defendant No.6 appeared through the counsel, and filed objections to the main petition. The trial Court appointed a Court Commissioner to demarcate the properties for the allotment of shares to the respective parties. The Court Commissioner issued notice to the parties, fixing the date of appearance. The Commissioner, after inspection, submitted a report to the trial Court. Defendant No.6 filed objection to the Court Commissioner’s report stating that, RFA and RSA are pending. In the objections filed by defendant No.6, defendant No.6 has not mentioned the numbers of the regular first appeal and regular second appeal, and further, has not produced a copy of any interim order alleged to have been passed in the aforesaid appeals. In the absence of any interim order, there was no legal impediment for the trial Court to proceed with the FDP proceedings. The trial Court accepted the report of the Court Commissioner, and passed the impugned final decree. The trial Court was justified in passing the final - 9 - NC: 2025:KHC-D:2662-DB RFA No. 100017 of 2024 decree, as there was no impediment either in this case or in the alleged second appeal. We do not find any error in the impugned final decree. In view of the above discussion, point No.1 is answered in the negative. Re. Point No.2. 9. In view of the above discussion, we proceed to pass the following; ORDER i) The Regular First Appeal is dismissed. ii) The impugned final decree drawn in FDP No.57/2022 dated 14.12.2023 passed by the learned I Additional Senior Civil Judge, Gokak, is hereby confirmed. No order as to the cost. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE rs CT: BSB/List No.: 1 Sl No.: 49