- 1 - HC-KAR NC: 2025:KHC-D:7614 RSA No. 100269 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 12TH DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.100269/2025(FDP) BETWEEN: 1. SMT. HOUSABAI W/O. MAHADEVA MALI, AGE: 85 YEARS, OCC: HOUSEHOLD WORK, R/O: MANGASULI, TALUK: KAGAWAD, DIST: BELAGAVI, PIN- 591 234. 2. SHRI. BABAN S/O. MAHADEV MALI, AGE: 62 YEARS, OCC: AGRICULTURE, R/O: MANGASULI, TALUK: KAGAWAD, DIST: BELAGAVI, PIN- 591 234. 3. SMT. SHALAN W/O. JYOTIBA KURANDE, AGE: 53 YEARS, OCC: HOUSEHOLD WORK, R/O: SAMRUDDI NAGAR SANGLI, TALUK: SANGLI, MAHARASTRA STATE, PIN- 416 410. 4. SHRI. KRISHNA S/O. MAHADEVA MALI, AGE: 54 YEARS, OCC: AGRUCULTURE, R/O: MANGASULI, TALUK: KAGAWAD, DIST: BELAGAVI, PIN- 591 234. 5. SMT. SUREKHA W/O. BALU MALI, AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O: MANGASULI, TALUK: KAGAWAD, DIST: BELAGAVI, PIN- 591 234. 6. SHRI. RAHUL S/O. BALU MALI, AGE: 34 YEARS, OCC: AGRICULTURE, R/O: MANGASULI, TALUK: KAGAWAD, DIST: BELAGAVI, PIN- 591 234. Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:7614 RSA No. 100269 of 2025 7. SMT. POOJA W/O. RAMACHANDRA MALI, AGE: 29 YEARS, OCC: HOUSEHOLD WORK, R/O: CHINCHALI, TALUK: TASAGAON , DIST: SANGLI, MAHARASTRA STATE. PIN- 416 410. 8. SMT. PRIYANKA W/O. RAHULA MALI, AGE: 27 YEARS, OCC: HOUSEHOLD WORK, R/O: KALAMBI, TALUK: MIRAJ, DIST: SANGLI, MAHARASTRA STATE. PIN- 416 410. 9. SHRI. BAPU S/O. DHULAPPA MALI, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: MANGASULI, TALUK: KAGAWAD, DIST: BELAGAVI, PIN- 591 234. ` 10.SHRI. SHIVAJI S/O. DHULAPPA MALI, AGE: 88 YEARS, OCC: AGRICULTURE, R/O: MANGASULI, TALUK: KAGAWAD, DIST: BELAGAVI, PIN- 591 234. 11.SHRI. PARASHURAM S/O. SHIVAJI MALI, AGE: 59 YEARS, OCC: AGRICULTURE, R/O: MANGASULI, TALUK: KAGAWAD, DIST: BELAGAVI, PIN- 591 234. 12.SHRI. MANOHAR S/O. SHIVAJI MALI, AGE: 50 YEARS, OCC: AGRICULTURE, R/O: MANGASULI, TALUK: KAGAWAD, DIST: BELAGAVI, PIN- 591 234. 13.SHRI.SUNIL S/O. SHIVAJI MALI, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: MANGASULI, TALUK: KAGAWAD, DIST: BELAGAVI, PIN- 591 234. …APPELLANTS (BY SRI. SHIVARAJ P. MUDHOL, ADVOCATE) AND: 1. SMT. SHEVANTI W/O. CHANDRAPPA MADAR, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: KHANADAL, TALUK: RAIBAG, DIST: BELAGAVI, PIN- 591 317. - 3 - HC-KAR NC: 2025:KHC-D:7614 RSA No. 100269 of 2025 2. SHRI APPU S/O. RAMA MADAR, AGE: 75 YEARS, OCC: AGRICULTURE, R/O: MANGASULI, TALUK: KAGAWAD, DIST: BELAGAVI, PIN- 591 234. 3. SMT. BAINABI W/O. HANAMANT MADAR @ KANGARE, AGE: 67 YEARS, OCC: HOUSEHOLD WORK, R/O: VOKURBUG, TALUK: MIRAJ, DIST: SANGLI, MAHARASTRA STATE, PIN- 416 410. 4. SMT. MEENA W/O. SHANKAR MADAR @ KANGARE, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O: MANGASULI, TALUK: KAGAWAD, DIST: BELAGAVI. PIN- 591 234. 5. SMT. SWATI W/O. KANDU CHAVAN, AGE: 35 YEARS, OCC: HOUSEHOLD WORK, R/O: MANGASULI, TALUK: KAGAWAD, DIST: BELAGAVI, PIN- 591 234. 6. SHRI. SUNIL S/O. SHAMARAO KANGARI @ MADAR, AGE: 33 YEARS, OCC: AGRICULTURE, R/O: MANGASULI, TALUK: KAGAWAD, DIST: BELAGAVI. PIN - 591 234. …RESPONDENTS (BY SRI. M.C.HUKKERI, ADVOCATE FOR C/R1) THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE PRAYING TO CALL FOR RECORDS AND SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 10.02.2025 IN RA NO.19/2024 PASSED BY THE ADDL. SENIOR CIVIL JUDGE AND JMFC AT ATHANI AND IMPUGNED ORDER AND DECREE DATED 17.01.2024 IN FDP NO.7/2021 (OLD NO.7/2013) PASSED BY THE CIVIL JUDGE AND JMFC COURT KAGWAD BY ALLOWING THIS APPEAL IN THE INTEREST OF JUSTICE AND ETC., THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERD THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC-D:7614 RSA No. 100269 of 2025 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. The legal representatives of respondent No.2 and respondent No.3 are before this Court, aggrieved by the order dated 17.01.2024 passed in FDP No.7 of 2021 (Old FDP No.7/2013) by the Civil Judge and JMFC, Kagwad, which was confirmed by the order dated 10.02.2025, passed in R.A. No.19 of 2024 by the Additional Senior Civil Judge and JMFC, Athani. 2. Respondent Nos.2 and 3 are the purchasers of suit schedule property from the mother of the plaintiffs’ in terms of a deed of sale dated 03.07.1998. In a suit for partition filed in O.S. No.568 of 1998, a preliminary decree was passed allotting 1/4th share each to the plaintiffs and defendants therein, which was later modified reducing the share to 1/5th each. The challenge to the said preliminary decree and modification thereof has attained finality the plaintiffs initiated FDP proceedings, during which a Commissioner was appointed. The Commissioner prepared a report and a sketch demarking the areas to be allotted to - 5 - HC-KAR NC: 2025:KHC-D:7614 RSA No. 100269 of 2025 plaintiffs and defendant Nos.1, 2(a) to 2(e), 3, 4, 5 and 6 respectively. Objections were apparently filed by the appellants herein to the Commissioner's report contending that the Commissioner had delegated his powers to a subordinate Officer. In addition, the appellants herein also filled an application in I.A. No.29 under Order 20 Rule 18 and Order 21 read with Section 41 of the CPC alleging that the decree tha had been obtained fraudulently and the same was not executable under law. 3. The FDP Court, after considering the grounds urged, framed the following points for its consideration: 1. Whether the proposal made in the Court Commissioner report is as per the modified Preliminary Decree passed in O.S. No.568/1998 in respect of the suit schedule property is just, proper and acceptable? 2. Whether the petitioner made out grounds to allow the petition? 3. Whether the respondent No.2 and 3 made out grounds that the petitioner got obtained the fraudulent decree and the same is not executable under the Law as alleged in the IA. No.29? 4. What order? - 6 - HC-KAR NC: 2025:KHC-D:7614 RSA No. 100269 of 2025 4. On consideration of the materials placed on record and the evidence of the parties, the trial Court answered point Nos.1 and 2 in the affirmative, and point No.3 in the negative and consequently ordered for drawing up of the final decree, accepting the Commissioner’s report whatap takta and the PT sheet filed by the Commissioner. 5. Aggrieved by the same, the appellants herein preferred a Regular Appeal in R.A. No.19 of 2024. 6. The First Appellate Court framed the following points for its consideration: “1. Whether the learned trial Court has committed error in concluding that, the petitioner and respondents are having equal share? 2. Whether the impugned judgment and decree are opposed to law, facts and material on record as such, required interference at the hands of this court? 3. What order?” 7. On re-appreciation of the matter, the First Appellate Court dismissed the said appeal. - 7 - HC-KAR NC: 2025:KHC-D:7614 RSA No. 100269 of 2025 8. Aggrieved by the same, the appellants are before this Court in this regular second appeal. 9. Learned counsel for the appellants submits that the only grievance of the appellants is with regard to the allotment of shares made by the Commissioner, as found in the sketch forming part of the final decree passed by the trial Court. He submits that the appellants had originally purchased 9 acres of land from the mother of the plaintiffs. After the purchase, the appellants made certain improvements to the property, including installing borewells on the northern end and enhancing the fertility of the land. However, while allotting the 1/5th share to the vendor of the appellants, the Commissioner has allocated the land at the extreme southern end, which is a barren land. Learned counsel further contends that if the appellants are allotted the northern portion of the land in which they had installed the borewells, the purpose of filing the present appeal would be served. - 8 - HC-KAR NC: 2025:KHC-D:7614 RSA No. 100269 of 2025 10. Learned counsel for the respondents-plaintiffs, on the other hand, submits that the Commissioner’s report was prepared in the presence of the parties and that the demarcation was also carried out in their presence. He submits that no objection of any nature whatsoever was filed by the appellants regarding the demarcation and allotment of the properties made by the Commissioner. The only technical objection raised by the appellants was that the Commissioner had delegated his powers to his assistant. This issue was taken by the appellants in W.P. No. 100056/2024 before this Court, which was disposed off on 04.01.2024, negating the said contention. As the appellants did not raise any other plea, they cannot be permitted to urge new grounds in this appeal. Hence, he seeks rejection of the appeal 11. Heard. Perused the records. 12. The order dated 17.01.2024 passed in FDP No.7 of 2021, as seen in the issues framed, pertains to the acceptance of the report of the Commissioner as well as the - 9 - HC-KAR NC: 2025:KHC-D:7614 RSA No. 100269 of 2025 application filed by the appellants herein in I.A. No.29. Since the learned counsel for the appellants submitted that the appellants are not aggrieved by the rejection of their application in I.A. No.29, the only point that remains to be considered is their submission regarding the allotment of a 2/5th share on the northern end of the suit properties. 13. A perusal of the sketch prepared by the Commissioner, which is enclosed with and forms part of the final decree, it indicates that the suit property has been divided into four parts, marked in Roman numbers I, II, III & IV. The portion marked and shown as ‘I’ has been allotted to the share of defendant Nos.4, 5 and 6 being their 1/5th share collectively; portion marked and shown in ‘II’ has been allotted the share of the defendant No.1 as his 1/5th share; portion marked and shown in ‘III’ has been allotted to the share of plaintiff No.1 as his 1/5th share; and portion marked and shown in ‘IV’ has been allotted to the share of respondent Nos.2(a) to 2(e) and 3 who are appellants herein as their 2/5th share collectively. - 10 - HC-KAR NC: 2025:KHC-D:7614 RSA No. 100269 of 2025 14. Though appellants contend that they had purchased the entire suit property under the deed of sale dated 03.09.1998 from the mother of the plaintiffs, and that they had made certain improvements, including the installation of borewells on the northern end of the property, no such objections were raised at the time when the Commissioner’s inspected or during the division of the property as per the sketch prepared by the Commissioner. Nor was any such plea raised before the trial Court. As rightly pointed out by the learned counsel for the respondents – plaintiffs, such a plea cannot be permitted to be raised for the first time in a second appeal. 15. Nonetheless even under the law, the appellants are entitled only to the share that their vendor, who was entitled to 1/5th share. The appellants, being the purchasers under the sale deed dated 03.09.1998 have accordingly been allotted 2/5th share collectively. There is no dispute with regard to entitlement of the share in the suit properties. - 11 - HC-KAR NC: 2025:KHC-D:7614 RSA No. 100269 of 2025 16. The Commissioner’s report has been accepted and approved by the appellants themselves and no objections were raised in that regard at appropriate stage. No grounds have been made out to interfere with the order passed by the FDP Court, which has been confirmed by the First Appellate Court. Therefore, this Court finds no reason to interfere, and no substantial question of law arises for consideration. Accordingly, the appeal is dismissed. 17. In light of the dismissal of the appeal, the pending applications, if any, would not arise for consideration and the same are disposed off. Sd/- (M.G.S. KAMAL) JUDGE VNP/CT-ASC List No.: 1 Sl No.: 37