- 1 - HC-KAR NC: 2025:KHC:46576 RFA No. 1327 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO.1327 OF 2024 (PAR) BETWEEN: 1. K.G. MAHESH S/O LATE GURAPPA GOWDA AGED ABOUT 56 YEARS 2. ARUNDHATHI HARISH W/O LATE K.G. HARISH, AGED ABOUT 54 YEARS 3. MANUPREETH S/O LATE K.G. HARISH, AGED ABOUT 27 YEARS APPELLANT NO.1 TO 3 ARE RESIDENT OF KADEMAKKI MAKKIMANE POST KIRANAKERE VILLAGE THIRTHAHALLI TALUK SHIVAMOGGA - 577 414. 4. HARINI W/O REMANNA AGED ABOUT 64 YEARS R/AT MADABURU, MUTHINAKOPPA POST N.R. PURA TALUK, CHIKKAMAGALURU - 577 134. LAKSHMIDEVAMMA S SINCE DEAD REP BY HER LRS I.E., APPELLANT NO.5 AND 6 5. K.S. JAYANTH S/O SOORAPPA GOWDA AGED ABOUT 66 YEARS Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:46576 RFA No. 1327 of 2024 R/AT KADEMAKKI, MAKKIMANE POST KIRANAKERE VILLAGE THIRTHAHALLI TALUK, SHIVAMOGGA - 577 414. 6. SUJATHA W/O MANJUNATHA, AGED ABOUT 64 YEARS R/AT HUGALAVALLI, KUDUMALLIGE POST, THIRTHAHALLI TALUK SHIVAMOGGA - 577 232. …APPELLANTS (BY SRI. ASHWATH C.M, ADVOCATE) AND: 1. K.M. VENU S/O LATE MANAPPA GOWDA AGED ABOUT 68 YEARS R/AT KADEMAKKI, MAKKIMANE POST KIRANAKERE VILLAGE THIRTHAHALLI TALUK SHIVAMOGGA - 577 414. 2. VANAJAKSHI W/O LATE K.M. RAVINDRA AGED ABOUT 66 YEARS R/AT BHARATH RICE MILL ROAD NETHAJINAGAR, KOPPA TOWN CHIKKAMAGALURU - 577 126. 3. RASHMI D/O LATE K M RAVINDRA AGED ABOUT 45 YEARS R/AT BHARATH RICE MILL ROAD NETHAJINAGAR, KOPPA TOWN CHIKKAMAGALURU - 577 126. 4. RAMYA D/O LATE K.M. RAVINDRA - 3 - HC-KAR NC: 2025:KHC:46576 RFA No. 1327 of 2024 AGED ABOUT 43 YEARS R/AT BHARATH RICE MILL ROAD NETHAJINAGAR, KOPPA TOWN CHIKKAMAGALURU - 577 126. 5. ROHITH S/O LATE K.M. RAVINDRA AGED ABOUT 32 YEARS R/AT BHARATH RICE MILL ROAD NETHAJINAGAR, KOPPA TOWN CHIKKAMAGALURU - 577 126. 6. CHANDRAVATHI W/O G.T. SIDDAPPA GOWDA AGED ABOUT 81 YEARS R/AT DWARAMAKKI, B.H. KAIMARA POST N.R. PURA TALUK, CHIKKAMAGALURU - 577 131. 7. LEELAVATHI W/O G.M. RANGANNA AGED ABOUT 78 YEARS R/AT CHIKKAGOPPENAHALLI HIRIYUR POST, BHADRAVATHI TALUK SHIVAMOGGA - 577 302. 8. SHARAVATHI W/O CHANNAPPA GOWDA AGED ABOUT 75 YEARS R/AT KELAGINA KANIVE KONAKERE POST, N.R. PURA TALUK CHIKKAMAGALURU - 577 127. 9. K.M. SATHYAVATHI W/O CHANDRAPPA, AGED ABOUT 66 YEARS R/AT HIREBYLU, KUDUVALLI POST THIRTHAHALLI TALUK, SHIVAMOGGA - 577 133. - 4 - HC-KAR NC: 2025:KHC:46576 RFA No. 1327 of 2024 10. VANAMALA W/O K.G. RAMESH, AGED ABOUT 67 YEARS R/AT GABADI, THUDUR POST MANDAGADDE HOBLI, THIRTHAHALLI TALUK SHIVAMOGGA - 577 226. …RESPONDENTS (BY SRI. MANJUNATHA L.S, ADV. FOR R1 TO R5 AND R7; R6, R8, R9, R10 ARE SERVED AND UNREPRESENTED) THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE ORDER DATED 5.02.2024 PASSED IN F.D.P. NO.13/2019 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, THIRTHAHALLI., ALLOWING THE PETITION FILED UNDER ORDER XX RULE 12 OF CPC. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR ORAL JUDGMENT This appeal by respondent Nos.10, 11, 12, 13, 15 and 16 in FDP No.13/2019 is directed against the impugned judgment and decree dated 05.02.2024 on the file of the Senior Civil Judge and JMFC, Thirthahalli, whereby the said Final decree petition filed by the 1st respondent – plaintiff was allowed by the Trial Court. 2. Heard learned counsel for the appellants and learned counsel for the respondent Nos.1 to 5 and 7 and perused the material on record. Though notice of the appeal has been served - 5 - HC-KAR NC: 2025:KHC:46576 RFA No. 1327 of 2024 on respondent Nos.6, 8, 9 and 10, they chosen to remain unrepresented and has not contested the appeal. 3. A perusal of the material on record will indicate that the 1st respondent – plaintiff instituted a suit in O.S.No.24/2017 against the appellants – defendants and other defendants for partition and separate possession of the alleged share in the suit schedule property. The said suit having been contested by the defendants, the Trial Court proceeded to pass a judgment and preliminary decree dated 11.04.2019 declaring that the plaintiffs and defendants were entitled to 1/3rd share each in the suit schedule properties. The said preliminary decree passed by the Trial Court in O.S.No.24/2017 attained finality and became conclusive and binding upon the parties. As per the preliminary decree, the suit schedule properties comprised of four items of landed properties viz., Sy.No.13/1 measuring 7 acres 3 guntas and 7 guntas kharab, Sy.No.14 measuring 7 acres 15 guntas and 11 guntas kharab, Sy.No.67/1 measuring 16 acres 30 guntas and 3 guntas kharab and converted land bearing Sy.No.13/2 measuring 4 guntas. - 6 - HC-KAR NC: 2025:KHC:46576 RFA No. 1327 of 2024 4. In pursuance of the aforesaid preliminary decree, the 1st respondent – plaintiff instituted Final Decree proceeding in FDP 13/2019 to which neither the appellants / defendants 10, 11, 12, 13, 15 and 16 nor the other defendants filed objections. The Trial Court appointed a Court Commissioner, who submitted reports dated 20.11.2021 and 13.12.2022 demarcating and indicating as to how it was possible / feasible to divide and effect partition of all the suit schedule properties including item No.2 of the suit schedule properties bearing Sy.No.14 measuring 7 acres 15 guntas as stated supra. The said reports, sketch, mahazar, etc., submitted by the Court Commissioner was accepted by the Trial Court which passed the impugned final decree as hereunder: “1. Case of the petitioner:- A suit in O.S.No.24 of 2017 was filed. In the said suit, the respondents and the petitioner came to be made entitled to have their respective shares at the rate of 01/03rd shares each in the petition schedule properties. The petitioner in association with defendants no. 01 to 09 was made entitled jointly to have 01/03rd shares. Defendants no. 11 to 16 have been made entitled for the share at the rate of 01/03rd each in the suit properties by metes and bounds. 2. No statement of objections has been fled in respect of the petition. - 7 - HC-KAR NC: 2025:KHC:46576 RFA No. 1327 of 2024 3. Heard the learned Advocates appearing for the respective parties to the petition. 4. Perused records. 5. Following points arise for determination: I. Whether the petitioner is entitled for as a final decree in respect of his 01/03rd shares declared in the preliminary decree in respect of the petition schedule properties? II. What Order ? 6. Above point no.01 has been answered in the Affirmative for the reasons hereinafter stated....... REASONS 7. POINT NO.01:- Court Commissioner was appointed to submit report by showing the exclusive shares of the parties to the petition. 8. The Court Commissioner has submitted his report twice. In the report dated 20-11-2021, he submitted nothing in respect of the property in Sy.no.13/2. Subsequently, vide report dated 13-12-2022 he has specifically showed the shares of the parties in respect of all the petition schedule properties. 9. A careful reading of the report of the Court Commissioner makes it clear that, it is an exhaustive report and in respect of the petition schedule properties, shares in - 8 - HC-KAR NC: 2025:KHC:46576 RFA No. 1327 of 2024 the light of the preliminary decree have been shown. Hence, as the learned Advocates appearing for the respective parties to the petition have submitted that, they have no objections on the report of the Court Commissioner, same deserves to be accepted. The report of the Court Commissioner specifies that, he has notified all the parties to the petition prior to the Commission work. It is reported by the Court Commissioner that, the defendant-respondent no. 10 was present, but, declined to affix his signature in respect of his presence and rest of the defendants did not appear before the Commissioner during commission work. 10. Hence, because of their non-cooperation. Court Commissioner’s report cannot said to be useless or otherwise. But, in the Court learned Advocates appearing for all the parties herein have submitted that, they do not object the report of the Court Commissioner. Specific shares as aforesaid in the petition schedule properties have been shown in respect of the petition schedule properties. The parties herein shall have shares by metes and bounds. Hence, the Court opines that, the parties herein are entitled to have the shares as per the preliminary decree in respect of the petition schedule properties. Accordingly, they are entitled for final decree. They are entitled to take the possession over the properties by metes and bounds as per the shares shown specifically in the report of the Court Commissioner. Hence, the point no.01 is answered in the affirmative. - 9 - HC-KAR NC: 2025:KHC:46576 RFA No. 1327 of 2024 11. POINT NO.02: The circumstances warrant the following orders...... OPERATIVE PORTION The petition filed under Order XX Rule 12 of C.P.C, by the petitioners, stands allowed. Office is hereby directed to prepare final decree as per the report of the Court Commissioner in respect of the petition schedule properties, showing the specific shares of the parties herein. Parties shall draw the same. The report of the Court Commissioner shall from the part of the final decree. The parties to the matter are entitled to obtain possession over the properties shown as their shares specifically in the Court Commissioner's report, by metes and bounds. In the light of the nature of the petition there is no order as to cost.” 5. Learned counsel for the appellants submitted that while they do not have any objection to the impugned final decree insofar as it relates to items 1, 3 and 4 of the suit schedule properties are concerned, item No.2 had not been properly divided / partitioned and the Trial Court committed an error in accepting the report and sketch of the Court Commissioner and directing drawing up of final decree in respect of this item also. In this context, it is - 10 - HC-KAR NC: 2025:KHC:46576 RFA No. 1327 of 2024 pertinent to note that though the appellants have raised objections as regards the final decree in respect of item No.2, the contention of the appellants that they are in possession and enjoyment of the portion that was not allotted to them but to the respondents herein cannot be accepted in the absence of any material produced by the appellants in this regard. In addition thereto, on perusal of the report, sketch, mahazar and other documents submitted by the Court Commissioner and accepted by the Trial Court, the appellants are not in a position to point out any illegality or infirmity in the same nor establish any ground for this Court to interfere in the impugned final decree especially when the same is in accordance with law and no prejudice or hardship or failure of justice can be said to have been caused to the appellants by the impugned judgment and decree. Under these circumstances, I am of the view that there is no merit in the present appeal and the same is accordingly dismissed. Sd/- (S.R.KRISHNA KUMAR) JUDGE SS / SV List No.: 1 Sl No.: 12