- 1 - HC-KAR NC: 2025:KHC-D:10293 RSA No. 100913 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 14TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR SECOND APPEAL NO. 100913 OF 2024 (FDP) BETWEEN: 1. SMT. SUNITHA W/O. GANGADHAR HIREMATH AGE. 42 YEARS, OCC. HOUSEHOLD, RESIDING AT 381, WARD NO.11, NEAR LAXMI TEMPLE, AMMINGAD, TQ. AND DIST. BAGALKOTE-580001. 2. SHASHIDARAYYA S/O. MADIWALAYYA MANNURMATH AGE. 37 YEARS, OCC. AGRICULTURE, RESIDING AT AINYAR ONI, NAVALGUND TQ., DHARWAD DISTRICT-580001. …APPELLANTS (BY SRI. UMESH P. HAKKARAKI, ADVOCATE) AND: 1. SMT. RATNA D/O. MADIWALAYYA MANNURMATH @ HIREMATH AGE: 39 YEARS, OCC. HOUSEHOLD, RESIDING AT ANNIGERI, NAVALGUND TALUK, DHARWAD DISTRICT 580001. 2. CHANNABASAYYA S/O. VEERABHASAYYA MANNURMATHH AGE: 74 YEARS, OCC. AGRICULTURE, RESIDING AT KARLWAD VILLAGE, NAVALGUND TQ., DHARWAD DISTRICT 580001. 3. SMT. SUSHILA W/O. MADIWALAYYA MANNURMATH AGE: 66 YEARS, OCC. HOUSEHOLD, RESIDING AT ANNIGERI, NAVALGUND TQ., DHARWAD DISTRICT-580001. …RESPONDENTS Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.08.20 10:43:01 +0530 - 2 - HC-KAR NC: 2025:KHC-D:10293 RSA No. 100913 of 2024 THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 29.10.2024 PASSED BY THE IV ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD IN R.A.NO.178/2019, AND ALSO THE ORDER DATED 06.06.2018 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, NAVALGUND IN F.D.P. NO.29/2014. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) Heard learned counsel for appellants on admission. 2. The appellants have preferred this appeal against the order dated 06.06.2018 passed in FDP No.29/2014 by the Senior Civil Judge and JMFC, Navalgund (for short, ‘the trial Court’), which is confirmed by the Judgment and Decree dated 29.10.2024 passed by the IV Additional District and Sessions Judge, Dharwad (for short, ‘the first appellate Court’) in R.A.No.178/2019. 3. The learned counsel for appellants would submit that the impugned Judgment and Decree passed by the first appellate Court is opposed to law, facts and all probabilities of the case and the Judgment and Decree - 3 - HC-KAR NC: 2025:KHC-D:10293 RSA No. 100913 of 2024 passed by the first appellate Court is contrary to mandatory provision of Section 54 of the CPC. The first appellate Court has misinterpreted Section 54 of the CPC and come to a wrong conclusion that the order passed in final decree proceedings by the trial Court is correct. To substantiate his arguments, the learned counsel for appellants relied on the decision of a co-ordinate bench of this Court passed in R.S.A.No. 100266/2021 dated 30.01.2023 rendered in the case of Smt.Annapurna D/o.Nagappa Godi and others vs. Smt.Shantawwa W/o.Andanappa Patil and others. Accordingly, he sought for allowing of this appeal. 4. Perused the materials placed before this Court. Smt.Ratna D/o.Madivalayya Mannurmath @ Hiremath, who is respondent No.1 in this appeal has filed FDP No.29/2014 for partition and separate possession in respect of suit schedule landed properties as per the Judgment and Decree passed in O.S.No.26/2001. The trial Court has issued notice to the respondents. Respondent - 4 - HC-KAR NC: 2025:KHC-D:10293 RSA No. 100913 of 2024 No.1 appeared before the trial Court through counsel. Respondent No.2 has not appeared before the Court and was placed exparte. The petitioner-Smt.Ratna filed an application in FDP No.29/2014 for appointment of Court Commissioner and accordingly, the trial Court has appointed the Court Commissioner and Commissioner filed the report. Both parties have submitted before the trial Court that they have not filed any objections to the Commissioner’s report. The Court has accepted the report of the Court Commissioner. Being aggrieved by this order of the trial Court, the present appellants have preferred RA.No.178/2019. The first appellate Court has passed the Judgment on 29.10.2024, in which it has observed at paragraph No.11 as under: “11. The Advocate for the respondent has submitted that, Commissioner Report was accepted without any objection by this appellant and he has not filed any written objection before the Trial Court. Now, he cannot question the same in this appeal before this Court, as there was no any other special grounds to contest the same. The Appeal is - 5 - HC-KAR NC: 2025:KHC-D:10293 RSA No. 100913 of 2024 filed by the appellant only with an intention of not giving share to his daughter and now after his death, his legal heirs are on record and they are contesting the appeal and they pray to dismiss the appeal. The main grievance of the appellant is that, the Land Surveyor has got no authority to survey the land as per Section 54 of CPC and the Tahasildar has to make a specific order appointing the Land Surveyor. In the present case, the Trial Court has referred the case to the Tahasildar and in the ordinary course the Tahasildar would appoint the Taluka Surveyor to visit the spot and give the Report and the same would be forwarded to the Court. In the Report dated 07.04.2018, the Taluka Surveyor has stated that, as per the order received from the Court in FDP No.29/2014 he has issued notice to both parties and visited the spot, made survey of the land and prepared the Commissioner’s Report and same is filed before the Court. It is observed that, the defendant has refused to sign the panchanama prepared at the spot. But, he has not filed any objection on the Commissioner’s Report before the Court. Hence, no reasonable grounds are made out by the appellant to show that the Report prepared by the Taluka Surveyor is arbitrary and the share allotted to himself and his brother as well as the plaintiff was biased. He has not challenged the way share has - 6 - HC-KAR NC: 2025:KHC-D:10293 RSA No. 100913 of 2024 been allotted, but only validity of Commissioner Report filed by the Taluka Surveyor is questioned. I am of the clear opinion that, the Taluka Surveyor would be empowered to file Commissioner Report as the provision itself states that, either the Commissioner or any other Gazetted Officer appointed under him can file the Commissioner Report. When objection is not filed before the Trial Court, same cannot be questioned herein in the Appeal and I am of the opinion that, the appeal is devoid of merits. No reasonable grounds are made out to interfere with the order of the Trial Court in passing of Final Decree. It is also to be observed that, the petitioner has filed the suit for partition against her own father and uncle in the year 2001 and even in the year 2024 her right in the property is denied by the present appellant by filing one or the other appeal. The preliminary decree was already once challenged in the appeal and same was dismissed. Now, second attempt is made by the appellants to question the Final Decree and it is only an effort to delay for granting of share to the petitioner, who is fighting for her right since 23 years. Hence, I am of the opinion that, no reasonable grounds are made out to interfere with the order of the Trial Court and I have answered Point No.1 and 2 in the Negative.” - 7 - HC-KAR NC: 2025:KHC-D:10293 RSA No. 100913 of 2024 5. The first appellate Court has rightly considered the arguments advanced on behalf of appellants and passed the impugned order. 6. The decision of the co-ordinate Bench of this Court passed in RSA.No.100266/2021 relied on by the learned counsel for the appellants is not applicable to the case on hand. I do not find any error, illegality or infirmity in the impugned Judgment and Decree passed by the first appellate Court. There is no substantial question of law is involved in this appeal. Hence, being devoid of merits, appeal stands dismissed at the stage of admission itself. Sd/- (G BASAVARAJA) JUDGE CKK LIST NO.: 1 SL NO.: 64