- 1 - HC-KAR NC: 2025:KHC-D:11248 WP No. 105118 of 2022 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 3RD DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT PETITION NO. 105118 OF 2022 (GM-CPC) BETWEEN: SRI. KAKKOREGOL RUDRAPPA S/O. KAKKOREGOL MOOGAPPA. AGE: 54 YEARS, OCC. AGRICULTURE, R/O. HIREKURUVATHI VILLAGE, TQ. HUVINAHADAGALI, DIST. BALLARI. …PETITIONER (BY SRI. SHARAD V. MAGADUM, ADVOCATE) AND: 1. SMT. SHANTAMMA W/O. SOMAPPA SINECURE, AGE: 79 YEARS, OCC. HOUSEHOLD WORK, R/O. HIREKURUVATHI VILLAGE, TQ. HUVINHADAGALI, DIST. BALLARI-583219. 2. P BASAVARAJAPPA S/O. SOMAPPA, AGE: 67 YEARS, OCC. AGRICUTLURE, R/O. HIREKURUVATHI VILLAGE, TQ. HUVINHADAGALI, DIST. BALLARI-583219 …RESPONDENTS (BY SRI. SATISH M.S., ADVOCATE FOR R1; R2-NOTICE SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT IN THE NATURE OF CERTIORARI AND QUASH THE IMPUGNED ORDER DATED 21/10/2022 PASSED IN FDP NO.3/2018 BY THE SR.CIVIL JUDGE HOOVINHADAGALI VIDE ANNEXURE-G AND ETC. THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.09.06 12:17:00 +0530 - 2 - HC-KAR NC: 2025:KHC-D:11248 WP No. 105118 of 2022 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) 1. The petitioner is aggrieved by the order dated 21.10.2022 passed in F.D.P.No.3/2018 by the learned Senior Civil Judge, Huvinahadagali, vide Annexure-G. 2. The brief facts leading to the filing of this petition are as follows: 2.1. Respondent No.1 filed a suit for partition, separate possession, and mandatory injunction against the petitioner and Respondent No.2 in O.S.No.192/2007. The said suit was decreed, and it was held that Respondent No.1 is entitled to half share in 6 acres of land out of 8 acres of the suit property in Survey No.54 at Kuruvathi Village, vide judgment and preliminary decree dated 15.12.2009. 2.2. Respondent No.1 then initiated a final decree proceedings in F.D.P.No.3/2018. The petitioner filed a second appeal in R.S.A.No.100071/2014. - 3 - HC-KAR NC: 2025:KHC-D:11248 WP No. 105118 of 2022 The FDP Court appointed a Court Commissioner to demarcate the property for division. The Court Commissioner submitted a report on 22.07.2015. In the meanwhile, the second appeal in R.S.A.No.100071/2014 came to be dismissed by this Court vide order dated 04.07.2022. 2.3. The petitioner filed the objections to the alleged report submitted by the Court Commissioner. The Trial Court recorded the evidence of the Court Commissioner and observed that the report submitted by the Court Commissioner was incomplete. It is noted that the Commissioner had not filed a detailed report and thus directed him to furnish a detailed report vide order dated 21.10.2022. 2.4. Aggrieved by the order dated 21.10.2022, the petitioner filed this writ petition. - 4 - HC-KAR NC: 2025:KHC-D:11248 WP No. 105118 of 2022 3. Heard the arguments of learned counsel for the petitioner and respondent No.1. 4. Learned counsel for the petitioner submitted that the Court Commissioner had not submitted a detailed report, and the Trial Court, after recording its finding, directed the Court Commissioner to furnish a detailed report by perusing the documents marked as Exhibits C1 to C12. He submits that, when the Trial Court has recorded a finding that the report submitted by the Court Commissioner is incomplete, the Trial Court ought to have directed the Court Commissioner to inspect the suit schedule property and then submit a detailed report. On the contrary, the Trial Court directed the Commissioner to submit a detailed report without re-inspecting or visiting the suit schedule property. Hence, on this ground, the petitioner prays that the petition be allowed and the Court Commissioner be directed to re-inspect the suit schedule property and submit a report in compliance - 5 - HC-KAR NC: 2025:KHC-D:11248 WP No. 105118 of 2022 with the preliminary decree. Further, it is submitted that, in the preliminary decree it is shown that 2 acres of the property had been sold, whereas the Commissioner’s report states only 1 acre and 91 cents. Therefore, the report is not in conformity with the preliminary decree. On this ground also, the petitioner prays that the writ petition be allowed. 5. Per contra, learned counsel for Respondent No.1 supported the impugned order. He submits that, though the Court Commissioner had submitted a report, the Trial Court had directed the Commissioner to file a detailed report. Hence he submits that he raised several other grounds that are not relevant for deciding this writ petition with regard to measurement and extent of the land and prays for the dismissal of the petition. 6. Perused the records and considered the submissions of learned counsel for the parties. - 6 - HC-KAR NC: 2025:KHC-D:11248 WP No. 105118 of 2022 7. There is no dispute that Respondent No.1 filed a suit for partition, separate possession, and mandatory injunction in O.S.No.192/2007. The judgment passed in O.S.No.192/2007 was challenged in R.A.No.7/2010 before the III Additional District and Sessions Judge, Ballari, sitting at Hosapete. The said appeal was dismissed vide judgment dated 06.12.2013. The judgment and preliminary decree passed in O.S.No.192/2007 and R.A.No.7/2010 were challenged in second appeal in R.S.A.No.100071/2014 before this Court. 8. During the pendency of the appeal, FDP proceedings were initiated by Respondent No.1 in F.D.P.No.3/2018. The FDP Court appointed a Court Commissioner to demarcate and bifurcate the properties as per the preliminary decree. The Court Commissioner submitted a report to the FDP Court. The petitioner filed objections to the Commissioner’s report. Thereafter, the Court Commissioner was examined as CW1. During - 7 - HC-KAR NC: 2025:KHC-D:11248 WP No. 105118 of 2022 the cross-examination, he admitted that he had not submitted a detailed report to the Court, but conceded that he had visited the petition schedule property in order to conduct a survey in accordance with the preliminary decree. He also admitted that he had produced the documents related to the petition schedule property and its division as per the preliminary decree. 9. The FDP Court directed the Court Commissioner to furnish a detailed report only on the ground that the matter was an old one. However, when the Trial Court found that the Court Commissioner had not submitted a detailed report, it ought to have directed the Commissioner to survey the property afresh and submit a report. On the contrary, the Trial Court only directed the Commissioner to furnish a detailed report. Further, the alleged report submitted by the Court Commissioner is not in conformity with the preliminary decree passed in O.S.No.192/2007. This aspect was not - 8 - HC-KAR NC: 2025:KHC-D:11248 WP No. 105118 of 2022 properly considered by the Trial Court, and it committed an error in passing the impugned order. Hence, the impugned order passed by the Trial Court is arbitrary and erroneous, and the same is liable to be set aside. 10. In view of the above discussion, I pass the following: ORDER i. The writ petition is allowed. ii. Impugned order dated 21.10.2022 passed in FDP No.3/2018 by the Senior Civil Judge, Hoovinhadagali, is set aside. iii. The Court Commissioner is directed to re-survey the land and furnish a detailed report to the Trial Court within a period of two months from the date of receipt of a copy of this order. Sd/- (ASHOK S. KINAGI) JUDGE gab/CT:PA List No.: 2 Sl No.: 3