- 1 - NC: 2025:KHC:7170 WP No. 3467 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 3467 OF 2024 (GM-CPC) BETWEEN: SRI. NAGARAJU T.S. S/O SHIVALINGAIAH, AGED ABOUT 71 YEARS, R/A NEAR MARUTHI CIRCLE, GARDEN ROAD, CHIKPET, TUMAKUR TOWN, TUMAKURU TALUK AND DISTRICT, PINCODE - 572 101. (SENIOR CITIZEN SHIP NOT CLAIM) …PETITIONER (BY SRI. MADHUSUDHAN M N., ADVOCATE) AND: 1. SMT. JAYAMMA D/O SHIVALINGAIAH, AGED ABOUT 61 YEARS, R/AT NEAR MARUTHI CIRCLE, GARDEN ROAD, CHIKPET,TUMAKUR TOWN, TUMAKURU TALUK AND DISTRICT PINCODE - 572 101. 2. SRI.T.S.SIDDAIAH, S/O SHIVALINGAIAH, AGED ABOUT 76 YEARS, R/AT NEAR MARUTHI CIRCLE, GARDEN ROAD, CHIKPET,TUMAKUR TOWN, TUMAKURU TALUK AND DISTRICT, PINCODE - 572 101. Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT KARNATAKA - 2 - NC: 2025:KHC:7170 WP No. 3467 of 2024 SHIVAKUMAR DEAD BY HIS LR'S 3. SMT.SHANKARAMMA, W/O LATE SHIVAKUMAR, AGED ABOUT 49 YEARS, R/AT NEAR MARUTHI CIRCLE, GARDEN ROAD, CHIKPET, TUMAKUR TOWN, TUMAKURU TALUK AND DISTRICT, PINCODE - 572 101. 4. SRI.T.S.KISHOR KUMAR, S/O LATE SHIVAKUMAR, AGED ABOUT 22 YEARS, R/AT NEAR MARUTHI CIRCLE, GARDEN ROAD, CHIKPET, TUMAKUR TOWN, TUMAKURU TALUK AND DISTRICT, PINCODE - 572 101. 5. SRI.T.S. MADHUKUMAR S/O LATE SHIVAKUMAR, AGED ABOUT 32 YEARS, R/AT NEAR MARUTHI CIRCLE, GARDEN ROAD, CHIKPET,TUMAKUR TOWN, TUMAKURU TALUK AND DISTRICT PINCODE - 572 101. 6. SRI.T.S. SHVIAPRASADH, S/O LATE SHIVAKUMAR, AGED ABOUT 29 YEARS, R/AT NEAR MARUTHI CIRCLE, GARDEN ROAD, CHIKPET,TUMAKUR TOWN, TUMAKURU TALUK AND DISTRICT, PINCODE - 572 101. …RESPONDENTS (BY SRI. M.B.CHANDRACHOODA., ADVOCATE FOR R1, (NOTICE NOT ORDERED IN R/O R2 - R6)) - 3 - NC: 2025:KHC:7170 WP No. 3467 of 2024 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO a) SET ASIDE THE IMPUGNED ORDER DATED 03/01/2024 PASSED ON IA NO. IV FILED BY THE PETITIONER UNDER ORDER 26 RULE 9 OF CIVIL PROCEDURE CODE FOR APPOINTING THE NEW COMMISSIONER/TAHSILDAR, TUMAKURU TALUK/TALUK SURVEYOR / ENGINEER PWD, TUMAKURU FOR DEMARKING OF PROPERTIES AS PER LAW IN FDP NO. 8/2015 WHICH IS PENDING BEFORE THE PRL. SENIOR CIVIL JUDGE AND CJM AT TUMAKURU, AS PER ANNEXURE-K AND BY ALLOWING THIS WP WITH COST AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R. NATARAJ ORAL ORDER The respondent No.2 in F.D.P. No.8/2015 pending on the file of the Principal Senior Civil Judge and CJM at Tumakuru (henceforth referred to as 'final decree Court'), has filed this petition challenging the correctness of an order dated 03.01.2024 by which, an application filed by him under Order XXVI Rule 9 of the Code of Civil Procedure (henceforth referred to as 'CPC' for short) was rejected. 2. The respondent No.1 herein filed O.S.No.51/2008 for partition and separate possession of - 4 - NC: 2025:KHC:7170 WP No. 3467 of 2024 her share in suit item Nos.1 to 4. The said suit after contest was decreed in part in respect of suit item Nos.2 and 3 and dismissed in respect of suit item No.1. The respondent No.1 herein initiated F.D.P.No.8/2015 to enforce the preliminary decree passed in O.S.No.51/2008. In the meanwhile, she also challenged the dismissal of the suit in so far as suit item No.1 is concerned in R.A.No.62/2015 before the II Additional District and Sessions Judge Tumakuru, (henceforth referred to as 'first appellate Court'). The First Appellate Court in terms of its judgment and decree dated 07.03.2019 allowed the appeal in part and declared that the plaintiff is entitled to 1/16th share in suit item No.1. 3. The respondent No.1 thereafter filed an application under Order XXVI Rule 13 of CPC for appointment of a Commissioner to effect a division. Accordingly, the Final Decree Court allowed the application in terms of the order dated 10.02.2020. The petitioner herein who purportedly constructed a house in suit item - 5 - NC: 2025:KHC:7170 WP No. 3467 of 2024 No.2, opposed the Commissioner's report contending that the property where he had constructed a house had to be allotted to his share. He also claimed that he was not present when the Commissioner executed the warrant and therefore, the report was half baked and could not be relied upon to effect a partition of the suit property as per the preliminary decree. Even before his objection to the Commissioner's report was accepted, the petitioner herein filed an application under Order XXVI Rule 9 of CPC for appointment of a fresh Commissioner to effect a division as per the preliminary decree. 4. The said application was opposed by the respondent No.1 herein and the Trial Court after considering the contentions urged in the application as well as in the objections, rejected the application with cost of Rs.2,000/-. 5. Being aggrieved by the aforesaid order, the petitioner is before this Court. - 6 - NC: 2025:KHC:7170 WP No. 3467 of 2024 6. The learned counsel for the petitioner contends that the Commissioner had suggested a scheme of partition behind the back of the petitioner. He submits that the petitioner had constructed a house on suit item No.2 and the portion where the house was constructed was allotted to the respondent No.1. Thus, he contends that the report of the Commissioner was lopsided and could not be accepted. He therefore, contends that the Final Decree Court ought to have appointed a fresh Commissioner for submitting a fresh scheme of partition. 7. Per contra, the learned counsel for respondent No.1 submitted that the suit was decreed in the year 2015 and till date, the respondent No.1 is not able to enjoy the fruits of the decree. He contends that if the petitioner is aggrieved by the scheme of partition suggested by the Commissioner, the remedy available for him is to file objections to the Commissioner's report before the Final Decree Court and the Final Decree Court would consider the objections so filed. Therefore, he contends that there - 7 - NC: 2025:KHC:7170 WP No. 3467 of 2024 is no justification for the petitioner to file a fresh application for appointment of a Commissioner. He contends that if the Court rejects the report of the Commissioner based on the objections filed by the petitioner, the Court would certainly take steps for appointment of a fresh Commissioner to suggest a fresh scheme of partition. 8. I have considered the submissions of the learned counsel for the petitioner as well as learned counsel for the respondent No.1. 9. As rightly contended by the learned counsel for the respondent No.1, once the Commissioner who was appointed to effect partition, had submitted his report indicating a scheme to divide the property as per the preliminary decree, it is up to the Final Decree Court to either accept or reject the scheme suggested by the Commissioner. The Final Decree Court can always reject the report and appoint a fresh Commissioner for suggesting a fresh scheme of partition. The petitioner - 8 - NC: 2025:KHC:7170 WP No. 3467 of 2024 therefore having filed objections to the Commissioner's report, must have pursued it to its logical end. He could not have filed a fresh application seeking for appointment of a fresh Commissioner to suggest a fresh scheme of partition. In that view of the matter, the Final Decree Court has rightly considered the application filed by the petitioner and the impugned order does not warrant any interference in this writ petition. 10. Hence, the petition is dismissed. However, the Final Decree Court is directed to consider the objections filed by the petitioner to the Commissioner's report and thereafter, proceed in accordance with law. Sd/- (R. NATARAJ) JUDGE BKN List No.: 1 Sl No.: 21