- 1 - NC: 2025:KHC-D:6568 RSA No. 100216 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF APRIL 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100216 OF 2024 (FDP-) BETWEEN: SRI. ULAVAPPA S/O. BUDAPPA MADALLI, AGE: 89 YEARS, OCC: AGRICULTURE, R/O. BHUDESHWAR, HOSALLI-582205, TQ: & DIST: GADAG. …APPELLANT (BY SRI. H.R. DESHPANDE, ADVOCATE) AND: SRI. RUDRAPPA S/O. BUDAPPA MADALLI, AGE: 89 YEARS, OCC: AGRICULTURE, R/O. BHUDESHWAR, HOSALLI-582205, TQ: & DIST: GADAG. …RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 READ WITH ORDER XLII RULE 1 OF CPC 1908 PRAYING TO ALLOW THIS APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE DATED 03.11.2023 PASSED IN R.A.NO.79/2022 BY THE LEARNED I ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT AT GADAG AND ALSO TO SET ASIDE THE ORDERS PASSED DATED 05.11.2022 IN F.D.P.NO.10/2020 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, GADAG BY DISMISSING F.D.P.NO.10/2020 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, GADAG WITH SAMREEN AYUB DESHNUR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:6568 RSA No. 100216 of 2024 COSTS THROUGHOUT AS PRAYED IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This Regular Second Appeal is filed by the petitioner, challenging the judgment and decree dated 03.11.2023 passed in RA No.79/2022 on the file of I Additional Principal Judge, Family Court at Gadag (for short, hereinafter referred to as ‘First Appellate Court’), dismissing the appeal and confirming the order dated 05.11.2022 passed in FDP No.10/2020 on the file of Principal Senior Civil Judge and CJM, Gadag (for short, hereinafter referred to as ‘FDP Court’), allowing the petition by decreeing the suit of the petitioner. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the FDP Court. 3. It is the case of the petitioner in FDP No.10/2020 that, the petitioner has filed OS No.175/2016 - 3 - NC: 2025:KHC-D:6568 RSA No. 100216 of 2024 seeking relief of partition and separate possession in respect of the suit schedule properties and preliminary decree came to be passed on 08.11.2019. It is also stated that, the defendant / appellant herein has preferred RA No.98/2019 before the Principal District and Sessions Judge, Gadag. 3.1. It is also stated that, the appeal came to be dismissed on 03.11.2023. In the meanwhile the plaintiff has preferred FDP No.10/2020 in terms of the preliminary decree in OS No.175/2016. Commissioner was appointed, for seeking actual division of the properties and the report of the commissioner was accepted as no objection by either of the parties and as such the FDP Court in FDP No.10/2020, allowed the petition and Final Decree Proceedings was drawn. Feeling aggrieved by the same, the respondent in FDP No.10/2020 has preferred RA No.79/2022 and the said appeal was resisted by the petitioner in FDP No.10/2020. The said appeal came to be dismissed by judgment and decree dated 03.11.2023 and - 4 - NC: 2025:KHC-D:6568 RSA No. 100216 of 2024 feeling aggrieved by the same, the respondent in FDP No.10/2020 has preferred this Regular Second Appeal. 4. I have heard Sri. H. R. Deshpande, learned counsel appearing for the appellant. 5. It is contended by the learned counsel appearing for the appellant that, both the Courts below have committed an error in accepting the report of the Court Commissioner effecting partition in respect of the suit schedule properties and the FDP Court has not applied its mind for actual division of the properties and accordingly, sought for interference of this Court. 6. In the light of the submission made by the learned counsel appearing for the appellant, I have carefully examined the finding recorded by both the Courts below. It is not in dispute that, the respondent herein has filed OS No.175/2016 seeking relief of partition and separate possession in respect of the suit schedule properties, which came to be decreed on 08.11.2019, and same came to be confirmed in RA No.98/2019. FDP - 5 - NC: 2025:KHC-D:6568 RSA No. 100216 of 2024 No.10/2020 is filed by the plaintiff in OS No.175/2016 seeking actual division of the properties. In the said proceedings, Court Commissioner was appointed for actual division of the properties. The Court Commissioners are the ADLR and one advocate Sri. S. F. Doddamani, for sub- dividing the properties. Report of the Commissioner is filed and same was accepted as either of the parties have not filed objection to the Commissioner Report. 7. In that view of the matter, as the appellant herein has not opposed the acceptance of the Commissioner Report before the FDP Court, I am of the view that, the arguments advanced by the learned counsel appearing for the appellant cannot be accepted. 8. Taking into consideration the fact that, the report of the Commissioner has been accepted by both the Courts below and concurrent finding of facts has been reached by both the Courts below, I do not find any merit in the appeal. 9. Accordingly, appeal is dismissed as the appellant herein has not made out grounds for formulation - 6 - NC: 2025:KHC-D:6568 RSA No. 100216 of 2024 of substantial question of law as required under Section 100 of Code of Civil Procedure. Sd/- (E.S.INDIRESH) JUDGE SMM CT-MCK List No.: 1 Sl No.: 25