- 1 - HC-KAR NC: 2025:KHC-D:11627 MSA No. 100096 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 08TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI MISCELLANEOUS SECOND APPEAL NO. 100096 OF 2020 BETWEEN: 1. SRI. PUNDALIK S/O VENKAPPA BIRADAR PATIL, SINCE DECEASED BY LRS, SRI. MANJUNATH S/O PUNDALIK BIRADAR PATIL, AGED: 35 YEARS, OCC: AGRICULTURE, R/AT: CHIKKUR, TQ: MUDHOL, DIST: BAGALKOTE. 2. SMT. VIJAYLAXMI W/O KRISHNA BUDNI AGED: 41 YEARS, OCC: HOUSEHOLD WORK, R/AT: CHIKKUR, TQ: MUDHOL, DIST: BAGALKOTE-587201. 3. SMT. VENKAWWA W/O VENKAPPA BUDNI SINCE DECEASED BY LR, SRI. KRISTAPPA S/O VENKAPPA BUDNI AGED: 53 YEARS, OCC: AGRICULTURE, R/AT: CHIKKUR, TQ: MUDHOL, DIST: BAGALKOTE-587201. …APPELLANTS (BY SRI. MRUTYUNJAY TATA BANGI, ADV) AND: 1. SRI. RANGAPPA S/O VENKAPPA BIRADAR PATIL, SINCE DECEASED BY LRS, SMT. NINGAWWA W/O RANGAPPA BIRADAR PATIL @ B PATIL, AGED 60 YEAERS, OCC: HOUSEHOLD WORK, 2. SRI. TIRUPATI S/O RANGAPPA BIRADAR PATIL @ B PATIL AGED 39 YEAERS, OCC: AGRICULTURE, MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.09.15 17:46:41 +0530 - 2 - HC-KAR NC: 2025:KHC-D:11627 MSA No. 100096 of 2020 3. SMT. YAMANAWWA D/O RANGAPPA BIRADAR PATIL @ B PATIL, AGED 37 YEAERS, OCC: HOUSEHOLD WORK, 4. SMT. PADDAWWA D/O RANGAPPA BIRADAR PATIL @ B PATIL AGED 34 YEAERS, OCC: HOUSEHOLD WORK, ALL ARE R/AT: CHIKKUR, TQ: MUDHOL, DIST: BAGALKAOTE. 5. SMT. TAYAWWA VENKAPPA BIRADAR PATIL, SINCE DECEASED BY LRS WHO ARE ALREADY ON RECORD. SRI. VENKAPPA S/O BHIMAPPA BIRADAR PATIL, AGED 69 YEAERS, OCC: AGRICULTURE, R/AT: CHIKKUR, TQ: MUDHOL, DIST: BAGALKAOTE-587201. …RESPONDENTS (BY SRI. GIRISH A. YADAWAD, ADV FOR R3 & R4, APPEAL AGAISINT R2 ABATED & NOTICE TO R1 & R5 ARE SERVED) THIS MSA IS FILED UNDER SECTION 43 RULE 1 (u) OF CPC., PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, MUDHOL PASSED IN RA NO.33/2018 DATED 25.11.2019 AND CONFIRM THE JUDGEMENT AND DECREE PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, MUDHOL PASSED IN FDP NO.14/2014 DATED 22.10.2018 IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:11627 MSA No. 100096 of 2020 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) 1. This Miscellaneous First Appeal is filed by the appellants, challenging the judgment and decree dated 25.11.2019 passed in R.A. No.33/2018 by the learned Principal Senior Civil Judge and JMFC, Mudhol. 2. For convenience, the parties are referred to based on their rankings before the FDP Court. The appellants were the plaintiffs and the respondents were the defendants. 3. The plaintiffs filed a suit against the defendants in O.S. No.257/1989 for a partition and separate possession. The said suit was decreed vide judgment dated 22.12.1994. The deceased defendant No.1 Rangappa, aggrieved by the judgment and decree passed in the said suit preferred an appeal in R.A. No.6/1995. The appeal came to be allowed vide judgment dated 16.02.2004. Thereafter, the plaintiffs preferred the second appeal in RSA No.417/2004 before this Court. This Court confirmed the judgment and decree passed - 4 - HC-KAR NC: 2025:KHC-D:11627 MSA No. 100096 of 2020 by the trial Court, by setting aside the judgment and decree passed in R.A.6/1995. The judgment and decree passed by this Court in RSA No.417/2004 has attained finality. The plaintiffs filed the final decree proceedings in FDP No.14/2014. The defendants appeared in the Final Decree Proceedings; however, did not file their objections to the main petition. The FDP Court appointed a Court Commissioner to effect a partition of the plaintiffs share in the suit schedule properties as per the preliminary decree. The Court Commissioner submitted a second report on 13.12.2017. The FDP Court, after hearing the learned counsel for the parties, accepted the second Court Commissioner’s report and passed a final decree on 22.10.2018. The defendants, aggrieved by the final decree passed in FDP No.14/2014 preferred the appeal under Section 97 of the Code of Civil Procedure in R.A. No.33/2008 on the file of the learned Principal Senior Civil Judge ad JMFC, Mudhol. The first appellate Court allowed the appeal, and set aside the final decree, remanding the matter to the FDP Court. The plaintiffs ,aggrieved by the judgment passed in R.A. No.33/2008 filed this miscellaneous second appeal. - 5 - HC-KAR NC: 2025:KHC-D:11627 MSA No. 100096 of 2020 4. Heard the arguments of the learned counsel for the plaintiff. 5. Learned counsel for the plaintiff submits that the FDP Court has considered the entire material on record, and has rightly passed the final decree. The first appellate Court committed an error in remitting the matter to the FDP Court on the ground that the final decree is not in compliance with the preliminary decree. Hence, on these grounds, he prays to allow the appeal. 6. Perused the records, and considered the submissions of the learned counsel for the plaintiff. 7. It is not in dispute that the plaintiff filed a suit against the defendants for a partition and separate possession. The suit was decreed on 22.12.1994. Thereafter, the deceased Defendant No. 1 preferred an appeal in RA NO. 06/1995. The said appeal was allowed by the first appellate Court on 16.02.2004 and the plaintiffs, aggrieved by the judgment and decree passed by the first appellate Court, - 6 - HC-KAR NC: 2025:KHC-D:11627 MSA No. 100096 of 2020 preferred a second appeal before this Court in RSA No. 417/2004. This Court allowed the second appeal filed by the plaintiff on 17.01.2014, and restored the judgment and preliminary decree passed by the trial Court and held that Venkappa and Bhimappa are the brothers. Defendant No.2- Tayavva is the wife of Venkappa who gave birth to the plaintiff and defendant Nos.1 and 3. The said Venkappa died about 25 years before the filing of the suit. His brother Bhimappa is not alive. 1 acre of land in R.S. No.154/3 was allotted to the branch of Venkappa. Similarly, the branch of Venkappa and Bhimappa, each, have a ½ share in the property bearing R.S. No.120 measuring 4 acres 27 guntas. 8. In the proceedings before the FDP Court, the FPD Court appointed a Court Commissioner to demarcate the properties shares for partition. 9. Learned counsel for the plaintiff filed a memo on 20.09.2017, before the trial Court, by stating that the plaintiff and defendant No.1 each are entitled to a 4/9th share and defendant No.3 is entitled to a 1/9th share without any basis. - 7 - HC-KAR NC: 2025:KHC-D:11627 MSA No. 100096 of 2020 The trial Court, without hearing on the said memo, proceeded to issue the Commissioner’s warrant and further, the Commissioner has not demarcated the shares of the parties as per the preliminary decree. The first appellate Court has rightly recorded a finding that the Commissioner’s report is not in compliance with the preliminary decree, and remitted the matter. Hence, I do not find any error in the impugned judgment and any substantial question of law that arises for consideration in this appeal. I concur with the findings recorded by the first appellate Court in the impugned judgment. 10. Accordingly, I proceed to pass the following order: ORDER i. The appeal is dismissed. ii. The judgment and decree passed by the first appellate Court is hereby confirmed. iii. No order as to the costs. - 8 - HC-KAR NC: 2025:KHC-D:11627 MSA No. 100096 of 2020 In view of the dismissal of the appeal, I.A.2/2020 does not survive for consideration and is accordingly, disposed off. Sd/- (ASHOK S. KINAGI) JUDGE kmv CT: BSB