- 1 - HC-KAR NC: 2025:KHC:21143 WP No. 16179 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 16179 OF 2025 (GM-CPC) BETWEEN: 1. PUTTAMMA @ NARAYANAMMA SINCE DEAD BY LRS SOMASHEKAR T S/O LATE THIMMAIAH AGED ABOUT 52 YEARS 2. SHIVAMMA T D/O LATE THIMMAIAH AGED ABOUT 65 YEARS R/A KARIYAPPA ROAD OPP. TO GANESHA SAW MILL T. DASARAHALLI BENGALURU-560 057 3. VIJAYALAKSHMI.T W/O JAYARAM D/O LATE K. THIMMAIAH AGED ABOUT 59 YEARS 4. NEELARAJU.T S/O K. THIMMAIAH AGED ABOUT 63 YEARS 5. JAGADISH T S/O LATE K. THIMMAIAH AGED ABOUT 61 YEARS Digitally signed by NAGAVENI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:21143 WP No. 16179 of 2025 6. THIMMARAYAPPA T S/O LATE K. THIMMAIAH AGED ABOUT 69 YEARS PETITIONERS NO. 1,3, 4 TO 6 ARE R/A NO. 186, BEHIND OLD CHECK POST KARIYAPPA ROAD, T. DASARAHALLI BENGALURU-560057 &PETITIONERS (BY SRI. PAVAN G.N, ADVOCATE FOR SRI. CHANDRAKANTH R PATEL, ADVOCATE) AND: 1. THIMMAJAMMA SINCE DEAD BY LRS LOKESH H S/O LATE HANUMAIAH AGED ABOUT 44 YEARS 2. RAJESH. H S/O LATE HANUMAIAH AGED ABOUT 42 YEARS 3. SHILPA S/O LATE HANUMAIAH AGED ABOUT 40 YEARS RESPONDENTS NO. 1 TO 3 ARE ALL R/A NO. 57/8, 3RD MAIN, KARIYAPPA ROAD, T. DASARAHALLI, OPP. TO GANESH SAW MILL BENGALURU-560 057 4. RANGAMMA D/O LATE THIRUMALAMMA AGED ABOUT 53 YEARS R/A THIPPAPURA VILLAGE - 3 - HC-KAR NC: 2025:KHC:21143 WP No. 16179 of 2025 DODDABALLAPUR TALUK BENGALURU RURAL DISTRICT 5. SMT. SIDDALINGAMMA D/O LATE THIMMAJAMMA AGED ABUT 72 YEARS R/A NO. 854, 5TH CROSS KEMPEGOWDA NAGARA T. DASARAHALLI, BENGALURU-560057 6. YASHODHA D/O LATE NAGALAKSHMI AGED ABOUT 38 YEARS 7. GANGARAJU S/O LATE GANGALAKSHMI AGED ABOUT 36 YEARS RESPONDENTS NO. 6 AND 7 ARE R/A DASANAPURA VILLAGE NELAMANGALA TALUK BENGALURU RURAL DISTRICT 8. SMT. MANJULA W/O KRISHNAMURTHY D/O LATE K. THIMMAIAH AGED ABOUT 47 YEARS R/AT 9TH MAIN, 5TH CROSS BHUVANESHWARINAGAR BENGALURU-560 057 &RESPONDENTS (BY SRI. M.J. ALVA, ADVOCATE FOR R5) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE IMPUGNED ORDER DATED 05.03.2025 PASSED BY THE LEARNED VIII ADDL. CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU IN FDP NO. 78/2023 IN OS NO. 8227/2011. ANNEXURE-A. - 4 - HC-KAR NC: 2025:KHC:21143 WP No. 16179 of 2025 THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioners are before this Court calling in question the order dated 05.03.2025, by which the concerned Court appoints the Assistant Executive Engineer of the BBMP to draw up a feasibility report of the partition of the property in FDP No.78/2023. 2. Heard Shri Pavan G.N., learned counsel for Shri Chandrakanth R. Patel, learned counsel appearing for the petitioners and Shri M.J. Alva, learned counsel appearing for respondent No.5. 3. A suit is instituted in O.S.No.8227 of 2011 seeking partition and separate possession. The said suit comes to be decreed. After closure of all the proceedings, final decree proceedings in FDP 78/2023 are instituted. The issue in the lis is not with regard to the merit of the matter before the concerned Court in the FDP. The respondent No.5 files a memo - 5 - HC-KAR NC: 2025:KHC:21143 WP No. 16179 of 2025 seeking appointment of Assistant Executive Engineer, BBMP as Court Commissioner. The memo is accepted and the concerned Court appoints the person sought in the memo i.e., the AEE as Court Commissioner for local inspection and has further directed to submit a report with regard to feasibility of the division of the properties in the schedule. It is this order that has driven the petitioners to this Court in the subject petition. 4. The learned counsel appearing for the petitioner would submit that the Assistant Executive Engineer of the BBMP cannot act as a Court Commissioner to draw a feasibility report, as there is a bar under Section 54 of the CPC. The learned counsel would submit that the issue in the lis is covered by plethora of judgments rendered by the coordinate benches of this Court. 5. Shri M.J. Alva, learned counsel appearing for respondent No.5 submits that the plaintiff who had filed a memo before the concerned Court to appoint the Assistant Executive Engineer of the BBMP, as the Court Commissioner would defend the order on the score that he is a Revenue - 6 - HC-KAR NC: 2025:KHC:21143 WP No. 16179 of 2025 Officer in the eye of law, to draw up a report and would seek dismissal of the petition. 6. The afore-narrated facts are not in dispute. The issue at this juncture lies in a narrow compass, as to who can be appointed as a Court Commissioner to be appointed in terms of Section 54 of the CPC to draw up a report with regard to the feasibility of partition of property in a final decree proceeding. 7. The issue in the lis need not detain this Court for long or delve deep into the matter. The co-ordinate benches of this Court, in the case of SANGA REDDY v. SMT. BASAMMA1 has held as follows: <&. &. &. 3. The Trial Court by the impugned order has ordered for effecting partition in all the suit properties by metes and bounds through the Court Commissioner with a direction to handover 1/8th share to the plaintiff and thereafter to report to the Court along with his survey sketch and receipt evidencing handing over of possession to the plaintiff. 4. To examine the correctness of the contention that the impugned order is contrary to Section 54 of CPC, the amended provision requires to be noticed. It reads as follows: 1 ILR 2004 KAR 3664 - 7 - HC-KAR NC: 2025:KHC:21143 WP No. 16179 of 2025 <54. Partition of estate or separation of share 4 Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share of such an estate shall be made by the Court in accordance with the law if any for the time being in force relating to the partition or the separate possession of shares and if necessary on the report of a revenue officer, not below the rank of Tahsildar or such other person as the Court may appoint as Commissioner in that behalf=. (Underlining is mine) 5. As could be seen from the above provision, effecting partition by the Court Commissioner, or revenue officer is not permissible. This is because of the change in law brought by Karnataka Act No. 36 of 1998 to Section 54 of CPC. In all cases to which the amended provision applies, the partition shall be made only by the Court and not by revenue officer or Court Commissioner. The Court, if necessary, can obtain a report from revenue officer or Court Commissioner to enable it to effect partition. It can effect partition on such a report.= Further, in the case of OBAMMA v. BORAIAH2, has held as follows: <&. &. &. 8. While admitting the present appeal, this Court framed the following substantial question of law: <Whether the Courts below justified in allowing the Final Decree Proceedings mainly on the basis of the division made by the Court Commissioner in view of the provisions of Section 54(amended) of the Code of Civil Procedure?= 2 2016 SCC OnLine Kar 4008 - 8 - HC-KAR NC: 2025:KHC:21143 WP No. 16179 of 2025 9. I have given my anxious consideration to the arguments advanced by the Learned Counsel for the parties to the lis. It is unfortunate case, where the decree was made as long back as in the year 1981. The suit filed in the year 1975. Though the decree was passed in the year 1981 and affirmed by this Court in RSA 727/1991, till today, the decree has not been implemented. It is the mistake committed by the Court for not making division of the suit properties as contemplated under the amended provisions of Section 54 of the Code of Civil Procedure. 10. In view of the amendment of Section 54 of the Code of Civil Procedure, the shares or division shall be made by the Court in accordance with law, if any, on the basis of report of the revenue officer not below the rank of Tahsildar, which reads as under: <54 Partition of estate or separation of share : Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share of such an estate shall be made bv the Court in accordance with the law if any, for the time being in force relating to the particular or the separate possession of shares, and if necessary on the report of a revenue officer, not below the rank of Tahsildar or such other person as the court may appoint as Commissioner in that behalf=. (emphasis supplied) 11. In view of the amendment of Section 54 of Code of Civil Procedure by Act No. 36 of 1998 with effect from 1.2.2001, in all cases to which the amended provision applies, the <partition shall be made only by the Court and not by the revenue officer or the Commissioner=. The Court if necessary on the report of the revenue officer not below the rank of the Tahsildar to enable to it to effect partition, it can effect partition on such report and Court Commissioner cannot make a division. In the present case, admittedly, the division is made by the Court Commissioner and not by the Court. Therefore, the substantial question of law has to be answered in negative holding that the Final Decree - 9 - HC-KAR NC: 2025:KHC:21143 WP No. 16179 of 2025 Proceedings accepting the division made by the Court Commissioner is contrary to the amended provisions of Section 54 of the Code of Civil Procedure. 12. Admittedly, as could be seen from the impugned judgment and decree passed by the Lower Appellate Court, confirming the Order passed by the Final Decree Proceedings, the division was effected by the Court Commissioner as stated in the Order of the Final Decree Proceedings that, <Court Commissioner partitioned the suit properties as per the preliminary decree=. 13. In view of the aforesaid reasons, the judgment and decree of the Lower Appellate Court passed in R.A. No. 7/2013 dated 26.8.2013 on the file of Senior Civil Judge, Challakere, confirming the Order dated 5.12.2012 allowing the Final Decree Proceedings on the basis of the division made by the Court Commissioner are set-aside. The matter is remanded to the Principal Civil Judge, Challakere, with a direction to the Trial Court to effect partition in accordance with the amended provisions of Section 54 of the Code of Civil Procedure. 14. Taking into consideration the matter is pending for last 3 7 years, though a decree was made in the year 1981 and confirmed by this Court in RSA 727/1991 on 2.6.1998, the Trial Court shall dispose of the Final Decree Proceedings within two months from the date of receipt of copy of the Order.= Subsequently, in the case of SMT.ANNAPURNA v. SMT.SHANTAWWA3, it is held as follows: <&. &. &. 13. Section 54 (Karnataka Amendment) of the CPC reads as under: 3 R.S.A.No.100266 of 2021 disposed on 30.1.2023 - 10 - HC-KAR NC: 2025:KHC:21143 WP No. 16179 of 2025 <54. Partition of estate or separation of share.- Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share of such an estate shall be made by the Court in accordance with the law if any, for the time being in force relating to the partition or the separate possession of shares and if necessary on the report of a revenue officer, not below the rank of Tahasildar or such other person as the Court may appoint as Commissioner in that behalf.= 14. Thus, from a reading of the aforesaid provisions of Section 54 of CPC, it is clear that, it is the primary responsibility of the Court to partition the estate and cause separation of the shares and if necessary the Court shall appoint a Revenue Officer not below the rank of Tahashildar who shall submit the report. In the instant case as seen, by the order dated 07.12.2016, the Trial court not only appointed ADLR, Gadag as the Court Commissioner to effect the partition but also directed him to execute the commission work with due notice to both the parties. The said approach by the Trial Court confirmed by the First Appellate Court, according to the appellants is erroneous and illegal. There is considerable force in the submissions made by the learned counsel for the appellants. 15. If a statute provides a particular thing to be done in a particular manner, it has to be done accordingly and not otherwise, is the settled principle of law. Section 54 of the CPC as noted herein above, casts a duty on the Court to cause partition and separate possession and allotment of shares to the parties, if necessary, upon obtaining the report from the Revenue Officer not below the rank of the Tahashildar. Though initially the learned counsel for the appellants has submitted that the ADLR is an officer below the rank of the Tahashildar, it is however clarified that his rank is equal to the rank of Tahashildar. In view of the law laid down by this Court in the case of RAMESH Vs. VISHNU AND OTHERS in W.P.No.106672/2018 disposed of on 25.08.2021, wherein this Court on an identical situation, has held that the rank of ADLR is equal to that of the Tahashildar, therefore, the said contention of the appellants would not - 11 - HC-KAR NC: 2025:KHC:21143 WP No. 16179 of 2025 survive for consideration. However, the further reading of the provision of Section 54 of the CPC makes it abundantly clear that even though the Civil Court is authorized to appoint a Revenue Officer and obtain a report, the division of property and allotment of share has to be carried out by the Court itself and the same cannot be delegated even to the Court Commissioner appointed under Section 54 of the CPC. 16. In the instant case, as seen from the records namely the final decree proceedings and the Commissioner9s report, which forms part of the decree passed by the Trial court, includes a sketch showing the division of the property. Perusal of said sketch reveal that same has been prepared by the Taluka Surveyor and is counter signed by the ADLR. Pointing out the same, the learned counsel for the appellants submits that the ADLR had apparently further authorized/delegated the responsibility to the Taluka Surveyor to carryout and execute the commission work which otherwise ought to have been done by the ADLR. Thus, he submits that at the first instance, delegation of the authority by the Civil Court to the ADLR to effect the partition itself was contrary to Section 54 of the CPC (Karnataka Amendment) and in the teeth of the said illegality, the ADLR could not have further delegated the power to the Taluka Surveyor to survey the land and effect partition, as seen from the annexure to the decree. 17. From the aforesaid submissions and the material on record, it is clear that the Trial Court while passing the order dated 20.01.2018 has not kept in mind the parameters and scope of Section 54 of the CPC and also while accepting the said report has not looked into the fact that the report has been prepared by the Taluka Surveyor purportedly under the instructions of the ADLR. Such a procedure cannot be countenanced. 18. This Court in the judgment and order dated 03.09.2021 passed in the case of SHIVANNA Vs. GOWRAMMA AND OTHERS in RSA.No.1434/2016 while dealing with an identical matter, at para Nos.10 and 11 has held as under: - 12 - HC-KAR NC: 2025:KHC:21143 WP No. 16179 of 2025 <10. In this regard, I have carefully considered the Commissioners report produced in the paper book from page Nos.36 to 55. A perusal of page No.44 of the paper book would indicate that the Court Commissioners have not only divided the property in terms of the preliminary decree but have allotted each share to the respective parties. The said report of the Commissioners is contrary to Section 54 of CPC. In this regard, it is the duty of the Court Commissioners to see the feasibility of the division of property in terms of Section 54 of CPC. However, in the instant case, the Court Commissioners gone beyond the warrant of Commission and allotted the share in favour of the respective parties. However, the same has been accepted by the trial Court and same has been affirmed by the First Appellate Court. Perusal of the report of the Commissioners would indicate that same is not in terms of Section 54 of CPC, abdicates the power of the trial Court. At this juncture, it is relevant to refer paragraph 11 of the judgment of this Court in Smt.Obamma's case (supra), which reads as under: "11. In view of the amendment of Section 54 of Code of Civil Procedure by Act No. 36 of 1998 with effect from 1.2.2001, in all cases to which the amended provision applies, the "partition shall be made only by the Court and not by the revenue officer or the Commissioner". The Court if necessary on the report of the revenue officer not below the rank of the Tahsildar to enable to it to effect partition, it can effect partition on such report and Court Commissioner cannot make a division. In the present case, admittedly, the division is made by the Court Commissioner and not, by the Court. Therefore, the substantial question of law has to be answered in negative hoiding that the Final Decree Proceedings accepting the division made by the Court Commissioner is contrary to the amended provisions of Section 54 of the Code of Civil Procedure." 11. Applying the principle laid down by this Court in the aforementioned case and on re- appreciating the Commissioners report, which would indicate that the Commissioners ought not to have divide and allot the properties in favour of the respective parties in terms of the preliminary decree as it is the duty of the trial Court to allot the share in favour of the respective parties in the suit and the said action on the part of the Commissioners - 13 - HC-KAR NC: 2025:KHC:21143 WP No. 16179 of 2025 amounts to abdication of the duty of the trial Court, which is not permissible under Section 54 of CPC. Accordingly, I am of the considered view that accepting the said report by the trial Court in FDP is contrary to Section 54 of CPC, in view of the law laid down by this Court in the aforementioned case.= 19. In view of the above facts and situation and legal aspect of the matter, this Court is of the considered view that the Trial Court erred in authorizing ADLR-Court Commissioner to effect the partition to execute the commission work and to submit their reports and the said ADLR had further committed an error and illegality in authorizing the Taluka Surveyor to carryout the task assigned to ADLR.= In the light of the issue standing answered by the co-ordinate benches, which would cover the issue on all its fours, the petition deserves to succeed with quashment of the order dated 05.03.2025, which appoints the Assistant Executive Engineer of the BBMP, as the Court Commissioner to bring about a feasibility report for partition in the final decree proceedings. 8. For the aforesaid reasons, the following ORDER i) Writ petition is allowed. ii) The impugned order dated 05.03.2025 passed by the learned VIII Additional City Civil and Sessions Judge at - 14 - HC-KAR NC: 2025:KHC:21143 WP No. 16179 of 2025 Bengaluru in FDP No.78/2023 in O.S.No.8227/2011 stand quashed. iii) It is open to the concerned Court to appoint an appropriate person bearing in mind the observation of the Court to draw up a feasibility report of partition of the properties. Sd/- (M.NAGAPRASANNA) JUDGE JY List No.: 1 Sl No.: 9