- 1 - HC-KAR NC: 2025:KHC:36363 MSA No. 31 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL NO.31 OF 2021 (RO) BETWEEN: T C GOPALA SINCE DEAD BY LRS. 1(a) SMT.INDIRAMMA W/O LATE T.C.GOPALA AGED ABOUT 65 YEARS 1(b) SRI ARUNA S/O LATE T.C.GOPALA AGED ABOUT 39 YEARS 1(c) ANITHA D/O T.C.GOPALA AGED ABOUT 37 YEARS ALL ARE R/O TARIGA AMRUTHA VILLAGE HUMCHA HOBLI HOSANAGARA TALUK SHIVAMOGGA DISTRICT-577 436. …APPELLANTS (BY SRI YOGESH V. KOTEMATH, ADVOCATE) AND: 1. KUBERAPPA SINCE DEAD BY HIS LRS 1(a) SMT.SHOBA W/O MAHABALESHA GOWDA.S.G AGED ABOUT 50 YEARS Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:36363 MSA No. 31 of 2021 R/A ALUR HOSAKOPPA DEMLAPURA POST, THIRTAHALLI TALUK SHIMOGA DISTRICT-577 436. 1(b) SRI SRIDHAR S/O KUBERAPPA GOWDA AGED ABOUT 48 YEARS R/A GANDRALLI VILLAGE KAMMACHI POST HOSANAGARA TALUK SHIMOGA DISTRICT-577 436 1(c) SMT.SRILATHA @ HIRIYAMMA W/O AMARNATH AGED ABOUT 46 YEARS R/O BETTAMAKKI VILLAGE SEEBINAKERE POST THEERTAHALLI TALUK SHIVAMOGGA DISTRICT-577 432 2. GANGAPPA S/O CHANNAIAH GOWDA AT CHANNAPPA GOWDA AGED ABOUT 61 YEARS R/O TARIGA, AMRUTHA VILLAGE HUMCHA HOBLI HOSANAGARA TALUK SHIVAMOGGA DISTRICT-577436. 3. PREMARAJA S/O CHANNAIAH GOWDA @ CHANNANNA GOWDA AGED ABOUT 60 YEARS R/O THARIGA, AMRUTHA VILLAGE HUMCHA HOBLI HOSANAGARA TALUK SHIVAMOGGA DISTRICT-577436. 4. NILAVATHI SINCE DEAD BY LRs - 3 - HC-KAR NC: 2025:KHC:36363 MSA No. 31 of 2021 4(a) GAYATRI W/O VENKAPPA GOWDA AGED ABOUT 56 YEARS R/A SAADGAL BHAVIKATTE VILLAGE NILSGAL POST, HOSANAGAR TALUK SHIMOGA DISTRICT-577 418 4(b) KRISHNA MURTHY.K.T S/O THIMMAPPA GOWDA AGED ABOUT 52 YEARS R/A KUKKANA KODUGE VILLAGE KONANDUR POST THEERTAHALLI TALUK SHIMOGA DISTRICT-577 422 4(c) PADMAVATHI.K.T W/O MAHESH AGED ABOUT 51 YEARS R/A MUNDIGE MANE, KOGGARE VILLAGE KONDLUR POST, THEERTAHALLI TALUK SHIMOGA DISTRICT- 577 422 4(d) NAGAVENI @ GEETHA W/O SATHISHA AGED ABOUT 49 YEARS R/A UTTINAGADDE VILLAGE KAMMARADI POST, THEERTAHALLI TALUK SHIMOGA DISTRICT-577 125 4(e) GIRISH.K.T S/O THIMAPPA GOWDA AGED ABOUT 46 YEARS R/A KUKKANA KODUGE VILLAGE KONANDUR POST THEERTAHALLI TALUK SHIMOGA DISTRICT-577 422 5. CHANDRAMMA W/O LOKAPPA MASTER - 4 - HC-KAR NC: 2025:KHC:36363 MSA No. 31 of 2021 AGED ABOUT 59 YEARS R/O NELLIGADDE ARAGA POST, THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT-577414 …RESPONDENTS (BY SRI S.RAJENDRA, ADVOCATE FOR R3; SRI HEGDE HUDLAMANE, ADVOCATE FOR R5; R1(A), R1(B), R1(C), R4(A), R4(B) AND R4(D) ARE SERVED AND UNREPRESENTED; VIDE ORDER DATED 20.09.2021, NOTICE TO R2 IS HELD SUFFICIENT; VIDE ORDER DATED 12.03.2025, NOTICE TO R4(E) IS DEEMED TO BE SERVED; VIDE ORDER DATED 20.08.2025, NOTICE TO R4(C) IS HELD SUFFICIENT) THIS MSA IS FILED UNDER SECTION XLIII RULE 1(U) OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 19.08.2019 PASSED IN R.A.No.10002/2019 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA (SITTING AT SAGAR), ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT DATED 16.11.2013 PASSED IN FDP.NO.4/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SAGAR AND C/C ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, SAGAR, ALLOWING THE APPLICATION FILED UNDER SECTION 54 OF CPC. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA - 5 - HC-KAR NC: 2025:KHC:36363 MSA No. 31 of 2021 ORAL JUDGMENT Present Miscellaneous Second Appeal is filed by the plaintiff challenging the order passed by the First Appellate Court in R.A.No.10002/2019, whereby appeal came to be allowed and judgment and final decree passed by the trial Court in F.D.P.No.4/2013, dated 16.11.2013 is set aside and matter is remitted to the trial Court for fresh disposal after appointing the fresh Court Commissioner. 2. Facts, in the nutshell, which are utmost necessary for disposal of the present appeal are as under: Suit in O.S.No.203/2005 claiming partition and separation of the following properties came to be decreed on 12.04.2012: “SUIT ‘A’ SCHEDULE PROPERTIES Item No.1 All the piece and parcel of the property bearing Sy.No.74 situated at Huligadde village, Humcha Hobli, Hosanagara Taluk, Shimoga 10 acre 16 guntas and bounded by : East : River Kumadwathi; West : Government Land; North : River and annappa Naika’s land; South : Lands of Chandra Naika; - 6 - HC-KAR NC: 2025:KHC:36363 MSA No. 31 of 2021 Item No.2: All the piece and parcel of the property bearing Sy No.20 situated at Tariga, Amrutha village, Humcha hobli, Hosanagara Taluk, Shimoga 4 acres 19 guntas, in which 12 teak wood trees are standing and bounded by: East : Lands of Eshwarappa Gowda; West : Lands of Ganesh Shetter; North : Government Land ; South : Lands of Thimmappa; Item No.3: All the piece and parcel of the property bearing Sy.No.40/3, situated at Tariga village, Humcha Hobli, Hosanagara Taluk, Shimoga 1 acre 24 guntas and bounded by: East : Lands of Shankar Naika; West : Nagendrappa’s land; North : Lands of Yanka Naika; South : Lands of Bistappa Gowda; Item No.4: All the piece and parcel of property bearing Sy.No.49/12, situated at Tariga, Amrutha Village, Humcha hobli, Hosanagara Taluk, Shimoga 1 acre 5 guntas and bounded by: East : Lands of Devamma; West : Land of Devaraj; North : Lands of Renuka Naika; - 7 - HC-KAR NC: 2025:KHC:36363 MSA No. 31 of 2021 South : Lands of Devaraj; Item No.5: All the piece and parcel of the property bearing Sy.No.47, situated at Tariga, Amrutha village, Humcha hobli, Hosanagara Taluk, Shimoga 36 guntas and bounded by: East : Government Land; West : Lands of Channappa Gowda; North : Lands of Yanka Naika; South : Lands of Kaillurappa Gowda; Item No.6: All the piece and parcel of the property bearing Sy.No.49/4, situated at Tariga, Amrutha village, Humcha hobli, Hosanagara Taluk, Shimoga 13 guntas and bounded by ; East : Lands of Yogendrappa; West : Lands of Devaraj; North : Government Land; South : Lands of Nagendrappa; Item No.7 : All the piece and parcel of the property bearing Sy.No.58/4, situated at Tariga, Amrutha Village, Humcha hobli, Hosanagara Taluk, Shimoga 31 guntas and bounded by ; East : Yogendra Naika; West : Lands of Devaraj; North : Government Land; - 8 - HC-KAR NC: 2025:KHC:36363 MSA No. 31 of 2021 South : Government Land; SUIT ‘B’ SCHEDLE PROPERTY Golden ornaments which are in possession of the 1 and 3rd defendant weighing about 200 grams, worth about Rs.1,30,000/-. 2.1. 'Decree attained finality whereby plaintiff has been given 1/4th share in suit ‘A’ schedule properties. 2.2. In order to get the property divided by metes and bounds, final decree proceedings was initiated in F.D.P.No.04/2013. 2.3. Learned Judge in the trial Court by order dated 16.11.2013 allowed the Final Decree Proceedings accepting the Commissioner Report and allotted the share as per the Commissioner’s Report and the sketch. 3. Being aggrieved by the same, Sri Premraj who was defendant No.3 in O.S.No.203/2005 and plaintiff in final decree F.D.P.No.04/2013 filed an appeal before the First Appellate Court which was numbered as R.A.No.10002/2019. - 9 - HC-KAR NC: 2025:KHC:36363 MSA No. 31 of 2021 4. Learned Judge in the First Appellate Court after securing the records heard the arguments of the parties and set aside the final decree passed by the trial Court on the ground that the Commissioner has not properly divided the properties and on the basis of the seniority of the parties, without taking into consideration the fertility of the land, classification of the land and type of the land, remitted the matter to the trial Court for fresh disposal after appointing another Court Commissioner. 5. The said order of the First Appellate Court is called in question by the plaintiff in this appeal. 6. Sri Virupakshaiah P.H., appearing on behalf of Sri Yogesh V Kotemath, learned counsel for the appellant reiterating the ground in the appeal memorandum, vehemently contended that there is no proper appreciation of the material on record by the First Appellate Court and Court Commissioner did issue notice to the parties before inspecting the suit properties and in the presence of the parties, the properties came to be divided not on the seniority of the parties. 7. He would also contend that very fact that in each of the items of the suit property, Commissioner has decided the - 10 - HC-KAR NC: 2025:KHC:36363 MSA No. 31 of 2021 shares and given the respective portion to the respective parties by indicating which portion is allotted to which of the parties, the finding recorded by the learned judge in the First Appellate Court that the lands are not divided on the fertile basis is incorrect and sought for allowing the appeal. 8. Per contra, learned counsel for the respondents supports the order of the First Appellate Court. 9. Some proposals for amicable settlement were given before this Court also for which the parties did not see eye to eye. 10. During the course of the present appeal, original plaintiff, respondent No.1 and respondent No.4 died and their legal representatives were brought on record. 11. In other words, the litigation has already reached the second generation. Decree for partition has attained finality and Final Decree Proceedings itself is of the year 2013. 12. Admittedly, Court Commissioner Conducted the spot inspection in the presence of the parties and thereafter divided the property conveniently and sketch was also prepared allotting shares to each of the parties. In each of the - 11 - HC-KAR NC: 2025:KHC:36363 MSA No. 31 of 2021 properties, Commissioner has allotted block No.2 to the plaintiff. 13. Pertinently, since the shares have been granted in each item of the property as per the decree of the trial Judge. The observation made by the First Appellate Court that property is divided based on the seniority of the parties and without looking into the fertility of the land has no basis whatsoever inasmuch as if the land is dry land in particular item each of the parties have got their 1/4th share in the dry lands and if it is a garden property, each of the parties have also got the garden property to that extent. 14. Therefore, this Court does not find any valid point whatsoever to uphold the order of the First Appellate Court, which is per se based on surmises and conjectures. 15. Only on the ground that the respondents did not contest the appeal, the learned Judge in the First Appellate Court ought not to have interfered with the equitable partition carried out by the Commissioner after issuing notice and property having been divided in the presence of the parties. 16. It is also pertinent to note that to the Commissioner's sketch and the report, there was no objection - 12 - HC-KAR NC: 2025:KHC:36363 MSA No. 31 of 2021 filed by any of the parties including the defendant No.3 who filed the appeal before the First Appellate Court in R.A.No. 10002/ 2019. 17. Under such circumstances, the order of the First Appellate Court needs interference by this Court in this appeal. 18. Accordingly, the following ORDER (i) Miscellaneous Second Appeal is allowed. (ii) Judgment of the First Appellate Court passed in R.A.No.10002/2019, on the file of V Additional District and Sessions Judge, Shovamogga (sitting at Sagar) is set aside. (iii) The Judgment of the trial Court in O.S.No.203/2005, on the file of Additional Senior Civil Judge and JMFC., Sagar, granting the shares as per the Commissioner's sketch is confirmed. (iv) Parties are at liberty to get their shares as per the Commissioner's sketch. - 13 - HC-KAR NC: 2025:KHC:36363 MSA No. 31 of 2021 (v) Plaintiff is entitled to Block No.2 in each of the properties as per the Commissioner's sketch and so also the other parties, who are entitled for their respective Blocks. (vi) It is also submitted that Execution was filed and portion was handed over to the plaintiff as per the sketch. If it is so, the parties shall enjoy their respective portions without obstructing to any other sharers. (vii) Further, since the daughters are not made as parties to the suit and they are entitled for the shares in another pending Regular Second Appeal, which they may work out their equitable shares as per the final judgment in the Regular Second Appeal. Sd/- (V SRISHANANDA) JUDGE MR