- 1 - NC: 2025:KHC:8104 RSA No. 915 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE K.NATARAJAN REGULAR SECOND APPEAL NO. 915 OF 2024 (PAR-) BETWEEN: SRI. HALLALLI KANNAPPARA ANJINAPPA S/O LATE HANUMANTHAPPA, AGED ABOUT 48 YEARS, AGRICULTURIST, R/O KONDAJJI ROAD, YARAGUNTE, DAVANAGERE - 577 001. …APPELLANT (BY SRI. SANTHOSH R. NELKUDRI, ADVOCATE) AND: SMT. CHANDRAMMA W/O AREHALLI ANJINAPPA, AGED ABOUT 36 YEARS, R/AT NEAR ANJANEYA TEMPLE, YARAGUNTE, DAVANAGERE - 577 001. …RESPONDENT (BY SRI. SATISH CHANDRA R., ADVOCATE) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:16.03.2024 PASSED IN RA NO.21/2023 ON THE FILE OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE, DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED:7.03.2023 PASSED IN FDP NO.31/2017 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DAVANAGERE, ALLOWING THE PETITION FILED UNDER ORDER 20 RULE 18 OF CPC., FOR SEEKING AN ORDER TO PASS THE FINAL DECREE. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by VEDAVATHI A K Location: High Court Of Karnatka - 2 - NC: 2025:KHC:8104 RSA No. 915 of 2024 CORAM: HON'BLE MR JUSTICE K.NATARAJAN ORAL JUDGMENT This appeal is filed by the appellant/defendant under Section 100 of CPC., for setting aside the order of accepting the Commissioner report by the trial court in FDP No.31/2017, dated 07.03.2023, and the same was upheld by the First Appellate Court in RA.No.21/2023, dated 16.03.2024. 2. Heard the arguments of learned both the counsels. 3. The case of the appellant is that the respondent No.1 filed a suit for partition and separate possession seeking ½ share in the suit schedule property in O.S.No.168/2016, which came to be decreed and which was attained finality, thereafter FDP was filed by the respondent in FDP No.31/2017 and the trial court issued the Commissioner warrant for bifurcating the land and preparing the report, accordingly report has been submitted by the Commissioner before the FDP court. The respondent /plaintiff not filed any objection on the commissioner report, however the defendant/appellant filed objection to the commissioner report, the trial court without giving an opportunity to cross examine the commissioner, - 3 - NC: 2025:KHC:8104 RSA No. 915 of 2024 accepted the commissioner report as it is and disposed of the FDP and the same was challenged before the First Appellate Court, which also came to be dismissed. Hence, the appellant is before this court. 4. Learned counsel for the appellant submits that both the courts below not considered State amendment to the Section 54 of the CPC., The court has to bifurcate or allowed the shares and should not accept the commissioner report as it is. The commissioner has no power to allocate the shares. Therefore, the orders of the both the courts below shall be set aside. 5. Where as learned counsel for the respondent has contended that the trail court not as it is accepted the report of the commissioner, but they are applied the mind and found it is correct and therefore no question of giving opportunity to the appellant/defendant for cross examine the commissioner and the First Appellate Court also considered the same. Hence, prayed for dismissing the appeal. - 4 - NC: 2025:KHC:8104 RSA No. 915 of 2024 6. Having heard the arguments and perused the records, the substantial questions of law involved in this appeal is that; 1) Whether the courts below erred in accepting the commissioner report by ignoring the amendment for allotting the share by the court? 2) Whether the orders of the Trial Court call for the interference? 7. On perusal of the records it is an admitted fact that the respondent was the plaintiff and the suit filed for partition and obtained the decree of ½ share in the suit schedule property. The schedule property also consisting of land as well as house property. The respondent/petitioner filed FDP before the trial court, accordingly the commissioner report was sought by the trial court. When the commissioner report was filed in respect of the land as well as a house property by valuing the house as Rs.47 lakhs and the share allotted to the plaintiff also not correct and the commissioner has no power to allot the share in view of the amendment brought to the Section 54 of the CPC., by the State. On perusal of the Section 54 of CPC., - 5 - NC: 2025:KHC:8104 RSA No. 915 of 2024 where the State Government amended the provision, where the commissioner shall be appointed and the court required to be allot the shares. However, the trial court considered the commissioner report and found it is correct, therefore it is accepted. However, the commissioner report especially sketch reveals the commissioner himself allocated the shares by dividing the property equally and the same allotment was as it is accepted by the trial court. It is seen from the Trial Court impugned order, the appellant /defendant in the FDP court filed objection to the commissioner report. Once the objection is filed by the party, it is the duty of the court to summoned the commissioner and provide the opportunity to the aggrieved party of the commissioner report and commissioner report required to be marked. Such being the case, the trial court not considered the objection filed by the appellant and totally ignored and the allotment made by the commissioner has been accepted as it is by ignoring amendment to the Section 54 of CPC., and with an intention to give an opportunity to appellant/defendant to cross examine the commissioner report in respect of the location of the properties allocated by the commissioner and value fixed by the commissioner in respect - 6 - NC: 2025:KHC:8104 RSA No. 915 of 2024 of the house property required to be considered only after the cross examination of the commissioner's report by the appellant. Such being the case, order of both the courts below required to be set aside. Accordingly, answered the substantial questions of law in favour of the appellant/respondent. Hence, the following; The appeal is allowed. Both the orders passed by the courts below are hereby set aside. The trial court is directed to summoned the Commissioner and give an opportunity to the petitioner as well as respondent to cross examine the commissioner on the share divided by the commissioner including the value fixed by the commissioner and dispose the matter within 6 months from the date of receipt of the judgment of this court. Sd/- (K.NATARAJAN) JUDGE SRK List No.: 1 Sl No.: 47 CT:SK