- 1 - HC-KAR NC: 2025:KHC:48549 RSA No. 1616 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1616 OF 2025 (FDP) BETWEEN: 1. SMT. KARIYAMMA W/O LATE HANUMANTHAPPA AGE: 76 YEARS 2. H. ANJINAPPA S/O LATE HANUMANTHAPPA AGE: 57 YEARS 3. H. MURUDAPPA S/O LATE HANUMANTHAPPA AGE: 55 YEARS 4. H. HONNAPPA S/O LATE HANUMANTHAPPA AGE: 54 YEARS 5. H. DALAVAYAPPA S/O LATE HANUMANTHAPPA AGE: 51 YEARS ALL AGRICULTURISTS R/O MATTI VILLAGE DAVANAGERE TALUK - 577502 &APPELLANTS (BY SRI VIGNESHWAR S SHASTRI, SR. COUNSEL FOR SRI HIREMATHAD MAHESHAIAH RUDRAYYA, ADVOCATE) Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:48549 RSA No. 1616 of 2025 AND: 1. SMT GIRIJAMMA W/O LATE KARIYAPPA AGED ABOUT 63 YEARS OCC: AGRICULTURIST 2. BASAPPA S/O LATE KARIYAPPA AGED ABOUT 59 YEARS OCC: AGRICULTURIST 3. NAGARATHNAMMA W/O LATE REVANASIDDAPPA AGE: 47 YEARS OCC: HOUSEWIFE 4. M.R. SHWETHA W/O RAVI D/O LATE REVANASIDDAPPA AGE: 39 YEARS ADDITIONAL ADDRESS R/O N.M.D.C. DONIMALAI, TALUK SANDUR DISTRICT BALLARI 3 583119 5. M.R. SWATHI, D/O LATE REVANASIDDAPPA AGE: 37 YEARS 6. M.R. HARISH S/O LATE REVANASIDDAPPA AGE: 37 YEARS OCC: AGRICULTURIST 7. M.R. SHARATH S/O LATE REVANASIDDAPPA AGE: 35 YEARS OCC: AGRICULTURIST - 3 - HC-KAR NC: 2025:KHC:48549 RSA No. 1616 of 2025 8. SMT. MADAMMA W/O LATE MADAPPA AGED ABOUT 60 YEARS HOUSEHOLD WORK 9. SRI. RAVI M. S/O LATE MADAPPA AGED ABOUT 40 YEARS AGRICULTURIST 10. SRI. HALESHI M S/O LATE MADAPPA AGED ABOUT 31 YEARS AGRICULTURIST 11. KUMARI. SAVITHA M D/O LATE MADAPPA AGED ABOUT 35 YEARS AGRICULTURIST ALL ARE R/O MATTI VILLAGE DAVANAGERE TALUK 3 577502 &RESPONDENTS THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 16.09.2025 PASSED IN R.A. NO.21/2016 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE AND ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH - 4 - HC-KAR NC: 2025:KHC:48549 RSA No. 1616 of 2025 ORAL JUDGMENT This second appeal is filed against the concurrent finding of the Trial Court as well as the First Appellate Court. 2. This matter is listed for admission. Heard the learned counsel appearing for the appellants. 3. The factual matrix of the case of the plaintiffs before the Trial Court is that the plaintiffs filed the suit for the relief of partition including Item Nos.1 to 5 of properties. The Trial Court considering the material on record granted the relief in respect of all the 5 acres of land. The said judgment and decree of the Trial Court also confirmed by the First Appellate Court in the appeal and thereafter, the plaintiffs have filed final decree proceedings in FDP No.22/2009. In final decree proceedings, at the first instance, commissioner was appointed since the same was not in order, again, the commissioner was appointed second time and second commissioner submitted the report on 30.07.2015 and the said report was not challenged by the appellants herein and also not filed any objections to the said report. The Trial Court considering the commissioner - 5 - HC-KAR NC: 2025:KHC:48549 RSA No. 1616 of 2025 report proceeded to pass an order and even details of commissioner report in respect of all the item of the properties were also taken note of while passing the final decree and the same was passed in the year 2015. Being aggrieved by the same, an appeal was filed before the First Appellate Court in R.A.No.21/2016. The First Appellate Court considered the grounds urged in the appeal wherein it is stated that the entire extent of Sy.No.3/23 in respect of particular number 41/1 and other properties are also included. The First Appellate Court having considered the grounds which have been urged in the appeal taken note of extent of land i.e., 3 acres 23 guntas and having considered both oral and documentary evidence placed on record comes to the conclusion that survey has been conducted and filed the report based on the relief granted in the original suit in O.S.No.22/1998 and held that the property is standing in the name of Hanumanthappa. Having considered the same comes to the conclusion that on careful consideration it is evident that ratio laid down in the judgments are not applicable to the facts of the case when defendant No.19 has no right to prefer the present appeal against the order passed - 6 - HC-KAR NC: 2025:KHC:48549 RSA No. 1616 of 2025 in the final decree proceedings and confirmed the judgment of the Trial Court. 4. The learned counsel appearing for the appellants in this second appeal mainly contend that both the Courts have committed an error and finding of both the Courts are not justified and no fair opportunity is given to the appellants for filing objections to the commissioner9s report. The counsel would vehemently contend that FDP is initiated not only in respect of suit schedule properties but also other property also included. 5. Having heard the learned counsel appearing for the appellants and also on perusal of the material on record, it discloses that in final decree proceedings, in paragraph 11, taken note of the earlier commissioner report dated 13.10.2011 and also taken note of the subsequent commissioner report dated 30.07.2015 and admittedly no objection is filed to the subsequent commissioner report dated 30.07.2015. Having taken note of the said fact into consideration, the Trial Court comes to the conclusion that objections is not filed to the commissioner9s report. Respondent Nos.1 and 2 have placed - 7 - HC-KAR NC: 2025:KHC:48549 RSA No. 1616 of 2025 ex-parte as they have not appeared before the Court, though respondent nos.3 and 4 appeared before the Court through their counsel, not filed any objections to the subsequent commissioner report. Having considered the preliminary decree passed in O.S.No.22/1998 and also the commissioner report, it discloses that the property is allotted to the shares of the plaintiffs in the preliminary decree and properly divided the same between the parties and hence, accepted the commissioner report and passed an order in final decree proceedings. The appeal is also filed challenging the same. 6. The main contention of the counsel for the appellants that the lands which have been taken into consideration for allotting the same is not in terms of the preliminary decree but in the commissioner9s report is very clear that in respect of item No.5 i.e., Sy.Nos.61/3P, 50/2P, 72/1P, 46/4P and 41/1P was taken note of and total extent is 3 acres 23 guntas and with regard to the entire area is concerned, there is no difference and may be survey numbers are different. But what is the extent of the claim made in this suit is very similar and as well as the commissioner visited the - 8 - HC-KAR NC: 2025:KHC:48549 RSA No. 1616 of 2025 spot and he is none other than the surveyor and demarcated the property and filed the report. Now, the counsel for the appellants cannot contend that no opportunity was given to the appellants to file objections. But the fact that second commissioner was appointed and he had submitted the report on 30.07.2015 itself and FDP was disposed of on 22.08.2015. The First Appellate Court also taken note of the extent of land for which a preliminary decree was granted and considered the material and record. When such being the case, I do not find any ground to interfere with the finding of the Trial Court and the First Appellate Court as there is a definite finding with regard to the extent of land is concerned i.e., 3 acres 23 guntas. Apart from that suit was filed in the year 1998, that too for the relief of partition and almost 27 years is elapsed for getting the relief of partition. Having considered the said fact into consideration and when there is no any miscarriage of justice, I do not find any grounds to admit the appeal and to frame substantial question of law. 7. In view of the discussions made above, I pass the following: - 9 - HC-KAR NC: 2025:KHC:48549 RSA No. 1616 of 2025 Order The second appeal is dismissed. In view of dismissal of the main appeal, I.A. if any, does not survive for consideration and the same stands dismissed. Sd/- (H.P.SANDESH) JUDGE SN