- 1 - HC-KAR NC: 2025:KHC-D:11251-DB RFA No. 100277 of 2024 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 3RD DAY OF SEPTEMBER 2025 PRESENT THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA REGULAR FIRST APPEAL NO.100277 OF 2024 (FDP) BETWEEN: 1. SHRI. BASAGOUDA, S/O. SHIDAGOUDA CHANAGOUDAR, AGE: 63 YEARS, OCC: AGRICUTLURE, R/O. NERALI-591340, TQ: HUKKERI, DIST: BELAGAVI. 2. SHRI. RAJASHEKHAR, S/O. BASAGOUDA PATIL, AGE: 49 YEARS, OCC: AGRICULTURE, R/O. NERALI-591340, TQ: HUKKERI, DIST: BELAGAVI. NOW AT CHAMBUR-MUMBAI (MAHARASTRA). 3. SMT. MANGAL, W/O. RAJENDRA KHANAPURE, AGE: 53 YEARS, OCC: HOUSEHOLD/AGRICULTURE, R/O. AMMANAGI-591236, TQ: HUKKERI, DIST: BELAGAVI. SAMREEN AYUB DESHNUR Digitally signed by SAMREEN AYUB DESHNUR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:11251-DB RFA No. 100277 of 2024 4. SMT. ANNAPURNA, W/O. KARAVEER DHABBA, AGE: 46 YEARS, OCC: HOUSEHOLD/AGRICULTURE, R/O. TERANI-591340, TQ: GADHINGALAJ, DIST: KOLHAPUR, MAHARASHTRA STATE. 5. SMT. SHOBHA @ PARVATI, W/O. ISHWAR CHOUGALE, AGE: 58 YEARS, OCC: HOUSEHOLD/AGRICULTURE, R/O. MUGALI-416551, TQ: GADHINGALAJ, DIST: KOLHAPUR, MAHARASHTRA STATE. 6. SMT. SHIVALEELA @ SHIVAKKA, W/O. RAMA MANE, AGE: 55 YEARS, OCC: HOUSEHOLD/AGRICULTURE, R/O. TANODI-416502, TQ: GADHINGALAJ, DIST: KOLHAPUR, MAHARASHTRA STATE. 7. SMT. KASHAVVA, W/O. BHIMAGOUDA KENCHAGOUDANAVAR @ PATIL, AGE: 83 YEARS, OCC: HOUSEHOLD/AGRICULTURE, R/O. HARAGAPUR-591313, TQ: HUKKERI, DIST: BELAGAVI. …APPELLANTS (BY SMT. SUNANDA P.PATIL, ADVOCATE) - 3 - HC-KAR NC: 2025:KHC-D:11251-DB RFA No. 100277 of 2024 AND: 1. SHRI. IRAGOUDAM S/O. BALAGOUDA KENCHAGOUDANAVAR @ PATIL, AGE: 68 YEARS, OCC: AGRICULTURE, R/O. HARAGAPUR-591313, TQ: HUKKERI, DIST: BELAGAVI. 2. SHRI. GIRIGOUDA, S/O. BASAGOUDA KENCHAGOUDANAVAR @ PATIL, AGE: 48 YEARS, OCC: AGRICULTURE, R/O. HARAGAPUR-591313, TQ: HUKKERI, DIST: BELAGAVI. 3. SHRI. BASAGOUDA, S/O. SHIVAGOUDA KENCHAGOUDANAVAR @ PATIL, AGE: 57 YEARS, OCC: AGRICULTURE, R/O. HARAGAPUR-591313, TQ: HUKKERI, DIST: BELAGAVI. 4. SHRI. DUNDAPPA, S/O. SHIVAGOUDA KENCHAGOUDANAVAR @ PATIL, AGE: 48 YEARS, OCC: AGRICULTURE, R/O. HARAGAPUR-591313, TQ: HUKKERI, DIST: BELAGAVI. 5. SHRI. MALAGOUDA, S/O. RAMAGOUDA KENCHAGOUDANAVAR @ PATIL, AGE: 51 YEARS, OCC: AGRICULTURE, R/O. HARAGAPUR-591313, TQ: HUKKERI, DIST: BELAGAVI. 6. SMT. VIMALA, W/O. APPANGOUDA KENCHAGOUDANAVAR @ PATIL, AGE: 79 YEARS, OCC: HOUSEHOLD/AGRICULTURE, - 4 - HC-KAR NC: 2025:KHC-D:11251-DB RFA No. 100277 of 2024 R/O. HARAGAPUR-591313, TQ: HUKKERI, DIST: BELAGAVI. 7. SHRI. BASAGOUDA, S/O. APPANGOUDA KENCHAGOUDANAVAR @ PATIL, AGE: 58 YEARS, OCC: AGRICULTURE, R/O. HARAGAPUR-591313, TQ: HUKKERI, DIST: BELAGAVI. 8. SHRI. BHIMAGOUDA, A/F KALAGOUDA KENCHAGOUDANAVAR @ PATIL, AGE: 55 YEARS, OCC: AGRICULTURE, R/O. HARAGAPUR-591313, TQ: HUKKERI, DIST: BELAGAVI. 9. SMT. SHARAVVA, W/O. BHIMAGOUDA SANKESHWARI, AGE: 65 YEARS, OCC: HOUSEHOLD/AGRICULTURE, R/O. HANJYANATTI-591309, TQ: HUKKERI, DIST: BELAGAVI. …RESPONDENTS (NOTICE TO R1, R2, R4 TO R9 ARE SERVED) (NOTICE TO R3 IS DISPENSED WTIH) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER XLI RULE 1 OF CPC PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE PORTION OF THE FINAL DECREE DATED 07.12.2023 IN RESPECT OF SCHEDULE B PROPERTIES PASSED BY THE SENIOR CIVIL JUDGE, HUKKERI ITINERARY COURT AT SANKESHWAR IN FDP NO.10/2022 AND THE MATTER MAY KINDLY BE REMANDED TO THE COURT BELOW TO GIVE DIRECTION TO THE COURT COMMISSIONER TO SUBMIT HIS PARTITION PROPOSAL BY ISSUING NOTICE TO ALL THE PARTIES AND SECURE THE PANCHAS, ASCERTAIN THE ACTUAL MARKET VALUE OF THE PROPERTY BASED ON - 5 - HC-KAR NC: 2025:KHC-D:11251-DB RFA No. 100277 of 2024 ITS CONDITION, CONSIDER THE FEASIBILITY OF EFFECTING DIVISION AND THEREAFTER PREPARE THE REPORT IN FDP NO.10/2022 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 S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR) This appeal arises out of the impugned order dated 07.12.2023 passed in F.D.P. No.10/2022 by the Senior Civil Judge, Hukkeri, Itinerary Court at Sankeshwar (hereinafter referred to as, ‘the Trial Court’), as well as the consequent final decree dated 10.01.2024 passed by the Trial Court. 2. Heard the learned counsel for the appellants and perused the material on record. 3. Respondents having been served with the notice of this appeal have chosen to remain unrepresented and have not contested the appeal. - 6 - HC-KAR NC: 2025:KHC-D:11251-DB RFA No. 100277 of 2024 4. A perusal of the material on record will indicate that the appellants/plaintiffs instituted a suit in O.S. No.194/2021 seeking partition and separate possession of their legitimate share in the suit schedule immovable properties and for other reliefs. 5. It is a matter of record and undisputed fact that the suit ‘A’ schedule properties comprised of item Nos.1 to 16 being landed and agricultural properties, while suit ‘B’ schedule properties consisted of items Nos.1 and 2 being house properties. By judgment and decree dated 03.09.2022, the Trial Court decreed the suit thereby allotting 1/6th share in favour of the appellants/plaintiffs in both suit ‘A’ schedule properties and suit ‘B’ schedule properties. The preliminary decree passed by the Trial Court having attained finality and become conclusive and binding upon the parties, the appellants/plaintiffs instituted the instant final decree proceedings in F.D.P. No.10/2022 to enforce and implement the said preliminary decree passed by the Trial Court. In the said final decree proceedings, the Trial Court - 7 - HC-KAR NC: 2025:KHC-D:11251-DB RFA No. 100277 of 2024 issued notices to the respondents/defendants who remained ex parte and did not contest the final decree proceedings. The appellants/plaintiffs filed interlocutory applications – I.A. Nos.II and III under Order XXVI Rule 9 and Section 54 of the Code of Civil Procedure seeking appointment of Court Commissioner to demarcate and effect partition of suit ‘A’ schedule properties and suit ‘B’ schedule properties. Accordingly, The Tahasildar/ADLR, Hukkeri was appointed as Court Commissioner to effect division of suit ‘A’ schedule properties - landed properties, and a report in this regard was submitted by the Court Commissioner to the Trial Court. Similarly, one Shri. S.D.Padmannavar, and Advocate of Sankeshwar was appointed as Court Commissioner to effect division of suit ‘B’ schedule properties being the house properties, who submitted a report to the Trial Court in this regard. Before the Trial Court, the appellants/plaintiffs chose not to file any objections to the reports of both the Court Commissioners as a result of which the Trial Court proceeded to pass the impugned order accepting the reports of both the Court Commissioner and directing - 8 - HC-KAR NC: 2025:KHC-D:11251-DB RFA No. 100277 of 2024 drawing up of final decree in terms of the reports submitted by the Court Commissioners. 6. Aggrieved by the impugned final decree only insofar as it relates to suit ‘B’ schedule properties (house properties), the appellants/plaintiffs are before this Court by way of the present appeal. 7. Learned counsel for the appellants, on instructions, submits that though there were several errors/discrepancies in the report of the Court Commissioner as regards the suit ‘B’ schedule properties (house properties) and that the appellants intended to file objections to the report of the Court Commissioner, due to oversight and inadvertence, the appellants/plaintiffs did not submit any objections to the report of the Court Commissioner, which was noticed by the appellants/plaintiffs only at the time of filing execution proceedings. It is submitted that the appellants/plaintiffs intend to file their objections to the report of the Court Commissioner in relation to suit ‘B’ schedule properties and the impugned order and the final decree only in - 9 - HC-KAR NC: 2025:KHC-D:11251-DB RFA No. 100277 of 2024 relation to suit ‘B’ schedule properties may be set aside and the matter be remitted back to the Trial Court for reconsideration of the final decree proceedings only insofar as suit ‘B’ schedule properties, and in accordance with law. 8. As stated supra, the respondents having been served with the notice of this appeal have chosen to remain unrepresented and have not contested the appeal. 9. As rightly contended by the learned counsel for the appellants, upon obtaining the reports of the ADLR/Court Commissioner in relation to suit schedule ‘A’ landed properties and the report of the Advocate/Court Commissioner in relation to suit ‘B’ schedule properties, the Trial Court has proceeded on the basis/premises that the appellants had not filed objections to either of the reports of the Court Commissioners and had stated that they have no objection to the report of the Court Commissioner. However, having regard to the specific submission made on instructions by the learned counsel for the appellants that due to oversight and inadvertence - 10 - HC-KAR NC: 2025:KHC-D:11251-DB RFA No. 100277 of 2024 which was due to bona fide reasons, unavoidable circumstances and sufficient cause, though the appellants/plaintiffs intended to file their objections to the report of the Court Commissioner and contest the same on merits, as regards suit ‘B’ schedule properties, without expressing any opinion on the merits of the claim of the appellants, we deem it just and appropriate to set aside the impugned order and the consequent final decree only insofar as it relates to suit ‘B’ schedule properties, and remit the matter back to the Trial Court for re- consideration of F.D.P. No.10/2022 in relation to suit ‘B’ schedule properties afresh and by issuing certain directions in this regard. 10. In the result, we pass the following: ORDER i) The appeal is allowed in part. ii) The impugned order, dated 07.12.2023, and the final decree dated 10.01.2024, passed in F.D.P. No.10/2022 by the Senior Civil Judge, Hukkeri, Itinerary Court at Sankeshwar, only insofar as it relates to suit ‘B’ schedule properties, is hereby - 11 - HC-KAR NC: 2025:KHC-D:11251-DB RFA No. 100277 of 2024 set aside. The impugned order and the final decree in respect of suit ‘A’ schedule properties stands confirmed and is not interfered with in the present appeal. iii) The matter is remitted back to the Trial Court for re-consideration of the final decree proceedings in F.D.P. No.10/2022 only insofar as suit ‘B’ schedule properties are concerned. iv) The appellants/plaintiffs shall appear before the Trial Court on 08.10.2025 without awaiting further notice from the Trial Court. v) Liberty is reserved in favour of the appellants to file their objections to the report of the Court Commissioner as regards suit ‘B’ schedule properties on the date of their appearance before the Trial Court. vi) Liberty is also reserved in favour of the appellants to file appropriate interlocutory applications and also examine/cross-examine the Court Commissioner in relation to suit ‘B’ schedule properties, if they so desire . vii) All rival contentions between the parties as regards suit ‘B’ schedule properties are kept - 12 - HC-KAR NC: 2025:KHC-D:11251-DB RFA No. 100277 of 2024 open, and no opinion is expressed on the merits/demerits of the rival contentions. viii) Immediately upon appearance of the appellants/respondents before the Trial Court and filing of objections in relation to suit ‘B’ schedule properties, the Trial Court shall proceed further in accordance with law. Sd/- (S.R. KRISHNA KUMAR) JUDGE Sd/- (C.M. POONACHA) JUDGE KMS Ct:VH List No.: 1 Sl No.: 16