- 1 - NC: 2025:KHC-D:1588-DB RFA No. 100339 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF JANUARY 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100339 OF 2018 (FDP) BETWEEN: KAMALESH S/O. MOTICHAND PATEL AGE: 49 YEARS, OCC: BUSINESS, R/O: SRI GAJA NIRMALA MOTI, 94, NAVEEN PARK, KESHWAPUR, HUBBALLI 580023, DIST:DHARWAD. …APPELLANT (BY SRI. S.G. KADADAKATTI, ADVOCATE) AND: 1. CHANDRAKANT S/O. MOTICHAND PATEL AGE: 61 YEARS, OCC: BUSINESS, R/O: KESAR COMFORTS, GROUND FLOOR, ARIHANT NAGAR, 3RD CROSS, KUSUGAL ROAD, KESHWAPUR, HUBLI DIST:DHARWAD-580023. 2. SMT. MEENA W/O. MAHENDRA VIKAMSHI AGE: MAJOR, OCC: HOUSEHOLD, R/O: B.105, ANANTNATJI COMPLEX, NEHARU NAGAR, KANJOORMARG (EAST), MUMBAI, STATE OF MAHARASHTRA-400042. Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:1588-DB RFA No. 100339 of 2018 3. SMT. MEERA W/O. NIRANJAN VIKAMSHI AGE: MAJOR, OCC:HOUSEHOLD, R/O: BLOCK NO.2, JAYANT VILLA, HINGAWALA LANE, GHATKOPAR (EAST), MUMBAI, STATE OF MAHARASHTRA-400077. 4. SMT. BEENA W/O. AMIT KHONA AGE: MAJOR, OCC: HOUSEHOLD R/O: 4, 1304, CHADDA HEIGHTS, LBS ROAD, NEAR HDFC BANK, OPP. TO SHERA BANDOOP (WEST), MUMBAI, STATE OF MAHARASHTRA-400078. 5. SMT. ANITA W/O. JAYAKUMAR DHARMSE AGE: MAJOR, OCC: HOUSEHOLD, R/O: D-63, MANORATA SOCIETY, OPP. AMAR COMPLEX, CHANIKYAPURI, NEAR SAMA VADODARA, STATE OF GUJARAT 390024. …RESPONDENTS (BY SRI. K.L. PATIL, ADVOCATE FOR C/R1; NOTICE TO R2 AND R5 SERVED; Appeal against R3 DISMISSED V/O. DATED 13.01.2025; NOTICE TO R4 HELD SUFFICIENT V/O. DATED 11.03.2022) THIS RFA IS FILED UNDER SEC. 96 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED:30.07.2018 PASSED IN FDP NO.10/2017 ON THE FILE OF THE I-ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, ALLOWING THE PETITION FILED UNDER ORDER 20 RULE 18 OF CPC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 3 - NC: 2025:KHC-D:1588-DB RFA No. 100339 of 2018 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This appeal is filed by respondent No.1 in FDP No.10/2017 against the final decree drawn by the trial Court in FDP No.10/2017 dated 30.07.2018. 2. Respondent No.1 herein filed O.S. No.295/2013 for partition and separate possession of 90% share in the suit schedule property and the said suit came to be decreed by the preliminary decree dated 16.12.2016 by the learned I Additional Senior Civil Judge, Hubballi. As per the terms of the decree, the plaintiff is entitled for 90% share in the suit schedule property and defendant No.1 is entitled for 10% share in the suit schedule property. The said suit has attained finality. 3. Respondent No.1 herein filed final decree proceedings in FDP No.10/2017. The trial Court heard both the parties and appointed a Court Commissioner. The trial Court recorded the evidence of the Court - 4 - NC: 2025:KHC-D:1588-DB RFA No. 100339 of 2018 Commissioner as CW.1 and in his evidence Exs.C.1 to C.17 were marked. 4. The appellant herein filed objections to the Commissioner’s report. The trial Court held that the said objections are not tenable as the said objections cannot be considered in the final decree proceedings. Appreciating the contentions of the parties on the report of the Court Commissioner, the trial Court passed the impugned order. 5. The grounds of the appeal are not tenable. Most of the grounds of the appeal are pertaining to preliminary decree passed by the trial Court. Since the said preliminary decree was not challenged by the appellants or got it modified or was set aside in an appeal, the trial Court cannot consider such grounds in the final decree proceedings. Therefore, there is no merit in the appeal to admit. - 5 - NC: 2025:KHC-D:1588-DB RFA No. 100339 of 2018 6. For the aforesaid reason, the appeal is dismissed as devoid of merits. In view of dismissal of appeal, I.A.1/2018 does not survive for consideration. Accordingly, the same is disposed of. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE kmv ct-cmu