1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE K.NATARAJAN REGULAR FIRST APPEAL NO. 2469 OF 2024 BETWEEN: 1 . SRI.NANJAPPA S/O. LATE KOORLAPPA AGED ABOUT 79 YEARS, NO.784/1, 6TH MAIN ROAD, 6TH CROSS, MARUTHI LAYOUT, CHOKKASANDRA, BENGALURU - 560 057. 2 . SMT. MUNIRATHNAMMA @ KALA, W/O. SRI SIDDANGAPPA AND D/O. SRI NANJAPPA AGED ABOUT 51 YEARS RLAT SRI KRISHNA YADAVA SEVA TRUST, NO.79, SRI MAHIMARANGA SWAMY NILAYA, CHOKKASANDRA, T.DASARAHALLI, BENGALURU - 560 045. 3 . SRI. MAHESH, S/O. SRI NANJAPPA AGED ABOUT 39 YEARS, NO.784/1, 6TH MAIN ROAD, 6TH CROSS, MARUTHI LAYOUT, CHOKKASANDRA, BENGALURU - 560 057. ...APPELLANTS (BY SRI. BHANU PRASAD K., ADVOCATE) 2 AND: 1 . SRI. MAHIMAKKA @ VEDA W/O.SRI M.LAKSHMANA D/O SRI. NANJAPPA, AGED ABOUT 46 YEARS NO.14/1, G NO.9TH STREET, JOGHUPALYA, HALSURU, BENGALURU - 560 008. 2 . SMT. RAJAMMA @ RADHA W/O. SRI. MUNIRAJU, D/O SRI. NANJAPPA, AGED ABOUT 44 YEARS NEAR AUTO SHED, MUKTHINAGAR KADUGONDANAHALLI, BENGALURU - 560 045. 3 . SMT. BHAGYAMMA, W/O SRI. SRINIVASALU, D/O SRI. NANJAPPA, AGED ABOUT 42 YEARS, NO.1-11-175, HINDUPURAM, ANDHRA PRADESH - 515 201. ...RESPONDENTS (BY SRI. H.C.SHIVARAMU, ADVOCATE FOR C/R1) THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 05.09.2024 PASSED IN FDP NO.64/2020 ON THE FILE OF XXXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, ALLOWING THE PETITION. THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 19.12.2024 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: 3 CORAM: HON'BLE MR. JUSTICE K NATARAJAN CAV JUDGMENT This appeal filed by the appellants/respondent Nos.1 to 3 under Section 96 read with Order XLI Rule 1 of CPC., for setting aside the order dated 05.09.2024 passed in FDP No.64/2020 by the XXXVIII Addl. City Civil & Sessions Judge, Bangalore (CCH-39). 2. Heard the arguments of learned counsel for the appellants and respondents. 3. The appellants are the respondents are the petitioners before the FDP court. The respondent No.1 was the petitioner in FDP court, respondent Nos.2 and 3 are the respondent No.3 and 4 in the FDP court. The rank of the parties before the Trial Court is retained for the sake of convenience. 4. The case of the petitioners before the FDP court is that, the petitioner obtained the judgment and decree in OS.No.3029/2009 dated 16.05.2020 and against the said judgment the respondent Nos.1 to 3 have filed RFA No.834/2020 before this court which RESERVED FOR ORDERS ON: 19.12.2024 PRONOUNCED ON : 17.01.2025 4 came to be dismissed and confirmed the preliminary decree passed by the trial court in OS.No.3029/2009. Subsequently, the respondents/defendants have filed the special leave petition before the Hon'ble Supreme Court in SLP (Civil) Diary No(s).16825/2024, which came to be dismissed. Accordingly, the FDP court passed the order by appointing the Commissioner. The Commissioner visited the spot and prepared the report and same is placed before the court and the same is accepted. The property was divided into six portions, where the plaintiff entitled for 1/6th share along with the respondent Nos.1 to 5 and the impugned order dated:05.09.2024 came to be passed by accepting the Commissioner report, survey sketch and mahazar, which is under challenge. 5. The learned counsel for the appellant has contended that the surveyor of the ADLR office appointed as Commissioner for division of property measuring equal shares of 1 acre 32 guntas in Sy.No.50 of Chokkasandra village. Each of the parties entitle for 0.12 guntas of land. While passing the order the trial court not considered the objection made by the appellant, the order has been passed without appreciating the facts. The survey sketch produced by the Commissioner where each one of the parties entitled to 0.12 guntas of land and a kharab land. As per the Commissioner report there is a road which cuts the land in respect of 1.32 guntas, where as road 5 measuring east to west: 20 feet and north to south : 321 feet, totally measuring 6420 sq.ft. The Commissioner ought to have taken road margin into consideration while demarcating the shares of each but the same was not done. The property has been divided equally in six shares by ignoring the road and its measurement. Therefore, the order of the trial court is set aside. The argument addressed by the counsel for the appellant has not considered. The sketch is clearly depicts the road leading between both the property allotted to the parties, therefore the road margin of 6420 sq.ft., should be removed and then the parties are entitled to 11 guntas of each instead of 12 guntas shown by the court. Further it is contended that the court has power to allot the shares but not the Commissioner. The Commissioner can only partition and show the shares of each persons and he has no authority to allot the shares. Therefore, prayed for setting aside the same. 6. Per contra the learned counsel for the respondents has contended that the respondents/appellants have been issued notice by the ADLR surveyor but the petitioner not appeared and avoid the service. Thereafter, the Commissioner report has been filed, they have not filed any objection. The report of the surveyor has been accepted by the court. Therefore there is no question of challenging the same. Hence, prayed for dismissal of the appeal. 6 7. Having heard the arguments and perused the records the points that arises for my consideration is; "Whether the order of the trial court accepting the Commissioner report is liable to be set aside and require modification?" 8. On perusal of the records it is an admitted fact that the respondent No.1 filed the suit against the appellants as well as other two respondents in OS.No.3029/2009 for partition and separate possession of 1/6th share in the Sy.No.50 of Chokkasandra village, measuring 1.32 guntas. After considering the evidence on record the trial court decreed the suit by granting 1/6th share to the 1st respondent/plaintiff. Feeling aggrieved by the same, defendants Nos.1 to 3, filed an appeal before this court in RFA No.834/2020 which came to be dismissed by this court on 26.10.2023. It is also an admitted fact that the defendants have filed special leave petition before the Hon'ble Apex Court in SLP (Civil) Diary No(s).16825/2024, which also came to be dismissed on 29.04.2024. Meanwhile the respondent/plaintiff filed FDP before the trial court and admittedly the defendants have not filed any objections to the FDP proceedings and appointment of Commissioner and a warrant has been issued to the Commissioner/surveyor of the ADLR. From the survey report which reveals a court notice has been issued by the surveyor but the 7 defendants have refused and not appeared at the time of preparing the report by the Commissioner. After filing the Commissioner report the respondents/defendants have filed objection to the Commissioner report and sketch. Thereafter, once again the fresh Commissioner was appointed for fresh consideration and notice has been issued to the defendants and other adjoining land owners but the defendants have not appeared and participated while surveying the land by the Commissioner. The Commissioner after surveying the land filed the report, where the Commissioner has demarcated six divisions measuring 12 guntas each out of 1 acre 32 guntas, which comes 12 guntas each. The Commissioner sketch reveals there is a road in between the both side of the lands i.e., a division was made by the Commissioner. The report reveals there are six colours given by the Commissioner by showing demarcating of land. On perusal of the Commissioner sketch the 6th division given to the plaintiff and remaining division 1 to 5 given to the defendants. The photographs also produced by the counsel for the appellant where the land in question is not a vacant land but there were constructions made by the parties and residing in their respective portions i.e., divisions made by the Commissioner in his report. Once the parties are residing in their respective places, when they are in possession, it is required to be allot the same place where they are in possession and the Commissioner cannot shift them to 8 some other place while preparing the sketch. The road is visible in the photographs which corroborates with the Commissioner report. The road cuts the property allotted to the plaintiff, a portion goes on the eastern side as well as western side. Likewise the property allotted to the 3rd appellant shows he is in possession of the property by putting up construction. On perusal of the sketch it cannot be said it is abruptly prepared by the surveyor but it was scientifically prepared by the surveyor and allotted the shares where the parties are in possession. Such being the case the contention of the appellant counsel cannot be acceptable where the Commissioner has no authority to allot the shares or identify the shares of the parties. The Commissioner has prepared the sketch as per the availability of the land and parties are in possession and proposed to allot the shares of the respective parties. Therefore, the contention of the appellant counsel cannot be acceptable that the Commissioner has committed error in allotting the shares. 9. The Commissioner is also examined as CW.1. The evidence of the Commissioner clearly reveals the respondents have served with the notice but refused and RPAD also issued, once again refused to receive the notice. Thereafter, the Commissioner fixed the date for visit, and accordingly on 07.03.2024, he has visited the spot and surveyed the land and demarcated the property, then 9 prepared the sketch and submitted the report to the Court. Ex.C.1 is the report, Ex.C.2 is the covering letter, Ex.C.3 is the index submitted along with the report, Ex.C.4 mahazar prepared by him, Ex.C.5 and 6 are the two survey sketch. 10. In the cross examination, nothing has been elicited to disbelieve the evidence of the Commissioner report. Though the respondents/appellants have cross examined at length but nothing has been elicited in respect of any improper demarcation of property by the Commissioner. The Commissioner also stated that to the best of his skill and judgment he prepared the sketch and demarcated the shares of the property. The only contention in the cross examination the valuable property allotted to the share of the plaintiff and other properties allotted to the respondents share and the same was denied by the Commissioner. The only contention of the appellants are that in order to help the plaintiff the report was prepared and the same was denied by the Commissioner in the cross examination. 11. On perusal of the records especially sketch prepared by the Commissioner, the sketch and allotment was made clock wise to the defendant Nos.1 to 5 and 6th portion given to the plaintiff. Therefore, there is no fault found by this court in the 10 Commissioner's report and demarcating /division of the property by metes and bounds made by the Commissioner. After reading and examination of the parties, and hearing of the arguments, the trial court accepted the Commissioner's report as it is. The trial Court has committed an error in accepting the measurement of 12 guntas shown by the Commissioner since the very Commissioner's report and his evidence reveals that there is existence of the road in the said land. The photographs produced by the learned counsel for the appellant shows that there is existence of the road. If the Commissioner's report is accepted as it is, for 12 guntas each, there will be chances of alienation of 12 guntas of land by the parties, but in future it will lead to further litigation between the parties. Therefore, as per the calculation of the land in Sy.No. No.50 measuring 1 acre 32 guntas, if road is excluded i.e. measuring East to West 20 feet totally 6,420 square feet, it comes around 6 guntas, if the 6 guntas of land is excluded the parties are entitled to 0.11 guntas of each of their respective shares but not 0.12 guntas of each as suggested by the Commissioner. Therefore, to the extent of 6,420 square feet towards road i.e. approximately 6 guntas of land shall be excluded and 0.11 guntas each to be allotted to the share of the parties. Therefore, the trial Court ought to have allotted only 0.11 guntas each to the parties, but not 0.12 guntas. The roads were existing between the land and the parties have put up their own 11 construction and they are in possession of the respective shares allotted / identified by the Commissioner. Therefore, to the extent of 1 gunta each to be excluded from the shares allotted to them. 12. If the said shares are allotted, 11 guntas each would come with modified boundary as under: (i) Block No.I : East by: Road existed to the half extent each in Block No.I and II and the portion of property allotted to Bhagyamma West by: Remaining land in Sy.No.50. North by: Remaining land in Sy. No.49. South by: Portion of property allotted to Mahimakka alias Veda i.e., Block No. VI, which includes road shown in eastern end and western end to the half extent. (ii) Block No.II : East by: Remaining land in Sy. No.51 West by: Road existed to the half extent each in same Block and remaining half extent existed in Block No.1 and IV and then portion of properties allotted to Radhamma and Mahimakka alias Veda. North by: Remaining land in Sy.No.50. South by: Portion of property allotted to Nanjappa, which includes some portion of road margin. (iii) Block No.III : East by: Remaining land in Sy. No.51. West by: Portion of land allotted to Muniratnamma alias Kala and some portion of property allotted to Mahimakka 12 alias Veda which portions includes existence of road. North by: The portion of land allotted to Bhagyamma i.e., Block No.II, which portion includes road to half extent. South by: Remaining land in Sy. No.63. (iv) Block No.IV : East by: Portion of property allotted to Nanjappa ie., Block No.III, which includes some portion of road. West by: Remaining land in Sy.No.50. North by: Some portion of property allotted to Nanjappa i.e., Block No. III and portion of property allotted to Mahimakka alias Veda Block No. VI, which includes road. South by: Portion of property allotted to Mahesh i.e., Block No.V, which includes road. (v) Block No.V : East by: Remaining land in Sy. No.63. West by: Remaining land in Sy. No.50. North by: Portion of property allotted to Muniratnamma alias Kala ie, Block No.IV, which includes road South by: Nagasandra main road (iv) Block No.VI : East by: some portion of land allotted to Nanjappa ie., Block No. III and portion of property allotted Bhagyamma, which includes road. West by: Remaining land in Sy. No.50 North by: Portion of property allotted to Radhamma alias Radha i.e., Block No.1. 13 South by: Portion of property allotted to Muniratnamma alias Kala i.e., Block No. IV which includes road and remaining land in Sy. No: 50. 12. In view of the above modification in respect of 11 guntas of land allotted to each sharer by excluding the existing road about 6420 sqft. existing in the said land measuring east west 20 ft., and north to sought 321 ft and boundaries fixed above the report of the Commissioner required to be accepted in part by modifying the above boundaries and 11 guntas of each to the parties. 13. In view of the same, the order of the trial court required to be interfered only to the extent of 1 guntas of each and the boundaries shown by the Commissioner and required to be modified boundaries as stated above. 14. Accordingly, I proceed to pass the following: ORDER (i) The appeal is partly allowed. (ii) The order passed in FDP No.64/2020 dated 05.09.2024 is modified as under: (a) The petitioner and respondents are allotted 0.11 guntas each instead of 0.12 guntas each and one gunta shall be left to the road margin. 14 (b) The portion of property allotted to Nanjappa and Muniratnamma alias Kala includes kharab to the extent of 0.0½% guntas each but they have absolute right over said kharab land. (c) The sketch prepared by the Commissioner along with report dated 15-03-2024 is part and parcel of final decree but the boundary prepared by this court shall be substituted to the boundary mentioned in the sketch. (d) The trial court shall draw final decree in terms of the order of this court irrespective of any correction in the petition. Sd/- (K.NATARAJAN) JUDGE SRK/CS CT:SK