- 1 - NC: 2025:KHC-D:1878 RFA No. 100259 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 29TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.100259 OF 2019 (FDP) BETWEEN: SHRI. FAKIRAPPA S/O. LAXMAN MUTTALAGERI, AGE: 64 YEARS, OCC: AGRICULTURE, R/O: MOKASHI GALLI, SAUNDATTI, TQ: SAUNDATTI, DIST: BELAGAVI. …APPELLANT (BY SRI A.B. NESARGI, ADVOCATE) AND: 1. SHRI. LAXMAPPA S/O. SIDDAPPA TAPASI, AGE: 59 YEARS, OCC: SERVICE, R/O: AKKISAGAR, TQ: SAUNDATTI, DIST: BELAGAVI, NOW R/O. NEAR GOKAK MILLS, SAUNDATTI, DIST BELAGAVI. 2. SHRI. MAHADEV @ MAHADEVAPPA S/O. SIDDAPPA TAPASI, AGE: 45 YEARS, OCC: SERVICE, R/O: AKKISAGAR, TQ: SAUNDATTI, DIST: BELAGAVI. 3. SMT. REKHA W/O. MAHADEVAPPA TAPASI, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O: AKKISAGAR, TQ: SAUNDATTI, DIST: BELAGAVI. 4. SHRI. BASAVARAJ S/O. VARAPPA PRASANNAVAR, AGE: 34 YEARS, OCC: AGRICULTURE, R/O: AKKISAGAR, TQ: SAUNDATTI, DIST: BELAGAVI. …RESPONDENTS (BY SRI CHETAN MUNNOLI, ADVOCATE FOR R1; SRI SHEKARGOUDA M.NAGANURI, ADVOCATE FOR R2; NOTICE TO R3 IS SERVED) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, PRAYED THAT THE ORDER AND DECREE PASSED IN FINAL DECREE PROCEEDING NO.4/2017 BY THE SENIOR CIVIL JUDGE, SAUNDATTI DATED 26.03.2019 IN RESPECT OF LAND BEARING R.S. NO.198/3 OF AKKISAGAR VILLAGE IN SAUNDATTI TALUKA, MAY KINDLY BE SET ASIDE BY ALLOWING THIS APPEAL IN THE INTEREST OF JUSTICE AND EQUITY. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:1878 RFA No. 100259 of 2019 THIS REGULAR FIRST APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) Though this appeal is listed for admission, with the consent of learned counsel for the parties, it is taken up for final disposal. 2. This Regular First Appeal is filed by appellant/respondent No.4 challenging the order dated 26.03.2019 passed in FDP No.4/2017 on the file of Senior Civil Judge, Saundatti (hereinafter referred to as ‘the FDP Court’). 3. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court. 4. Heard arguments from both learned counsels appearing for the parties and perused the materials placed on record. - 3 - NC: 2025:KHC-D:1878 RFA No. 100259 of 2019 5. The appellant is defendant No.4 in O.S.No.107/2015 and respondent No.4 in FDP No.4/2017. The plaintiff/respondent No.1 has filed a suit for partition and separate possession against the appellant and respondents No.2 to 4. The trial Court has decreed the suit in O.S.No.107/2015 by the judgment and decree dated 16.12.2016. Thereafter, the respondent No.1 herein has initiated final decree proceedings before the FDP Court and FDP Court by acting under Order XX Rule 18 r/w Section 54 of CPC, allowed the petition filed for effective decree and ordered that respondent No.1 is entitled to take possession of the share in accordance with law and order passed in the FDP and accordingly, ordered for drawing up of final decree by accepting the report submitted by the Court Commissioner. 6. Now the appellant being defendant No.4 in the suit and respondent No.4 in FDP has filed the present appeal questioning order passed by the FDP Court on the ground that the Taluka Surveyor was appointed as a Court Commissioner for reporting and for making division of - 4 - NC: 2025:KHC-D:1878 RFA No. 100259 of 2019 property is contrary to Section 54 of CPC. He submitted that the FDP Court has obtained report from a Revenue Officer who is lesser in rank to Tahasildar which is not permissible as per Section 54 of CPC. Therefore, the report submitted by the competent authority is contrary to Section 54 of CPC. Therefore, prays to allow the appeal and set aside the judgment and decree and remand the case to the FDP Court for passing a fresh order. He places reliance on the judgment of this Court in the case of Annapurna (Smt.) and Others V/s Smt. Shantawwa and another, HCR 2023 Kant. 463. 7. Section 54 of CPC reads as follows: “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 shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if - 5 - NC: 2025:KHC-D:1878 RFA No. 100259 of 2019 any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.” 8. In Annapurna case (supra), the effect is that the Civil Court in final decree proceeding has appointed ADLR (Addl. Director of Land Records) to submit report but the ADLR has delegated the said work to the Taluka Survey Officer. Therefore, in this context, this Court has formed opinion that ADLR could not delegate work to the Taluka Surveyor as it is contrary to the order passed by the Civil Court. But in the present case, the FDP court has appointed Taluka Surveyor and Taluka Surveyor has submitted report of division of properties and the same is accepted by the FDP Court. This makes difference in the facts in the above said case and in the present case. 9. In the present case, the FDP Court as per Section 54 of CPC has appointed Taluka Surveyor as Court Commissioner under Section 54 of CPC. The discretion is with the FDP Court to appoint revenue officer not below the rank of Tahasildar or such other person as the Court - 6 - NC: 2025:KHC-D:1878 RFA No. 100259 of 2019 may appoint in this behalf. The second limb of Section 54 of CPC so far as, appointing a revenue officer is discretion to Court even to appoint any such other person as Court Commissioner. Therefore, it is not only to be appointed Tahasildar or any other person as the Court commissioner but also Civil Court and FDP Court has vested power to appoint as Court Commissioner as above stated. Therefore, while considering second limb of Section 54 of CPC, the FDP Court is correct in appointing Taluka Surveyor and final decree drawn is perfectly justifiable which needs no interference. Therefore, the appeal is liable to be dismissed. Hence, appeal is dismissed. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE RKM List No.: 1 Sl No.: 23