- 1 - HC-KAR NC: 2025:KHC:26348 RSA No. 842 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.842 OF 2024 (PAR) BETWEEN: 1. SHIVAMURTHY, S/O LATE MAHADEVAPPA, AGED ABOUT 57 YEARS, OCC: AGRICULTURIST, R/O DAGINAKATTE VILLAGE, CHANNAGIRI TALUK-577213, DAVANAGERE DISTRICT. …APPELLANT (BY SRI. UMESH MOOLIMANI, ADVOCATE FOR SRI. S.V.PRAKASH, ADVOCATE) AND: 1. SMT. RUDRAMMA, W/O LATE RAVINDRAPPA, AGED ABOUT 63 YEARS. 2. GAJENDRA, S/O LATE RAVINDRAPPA, AGED ABOUT 43 YEARS. 3. HALESHA, S/O LATE RAVINDRAPPA, AGED ABOUT 41 YEARS. ALL ARE RESIDENTS OF DAGINAKATTE VILLAGE, CHANNAGIRI TALUK-577213, DAVANAGERE DISTRICT. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26348 RSA No. 842 of 2024 4. SMT. SUNITHA, D/O LATE RAVINDRAPPA, AGED ABOUT 39 YEARS, R/O NAVILEHAL VILLAGE, CHANNAGIRI TALUK-577213, DAVANAGERE DISTRICT. 5. SIDDAPPA, S/O LATE MAHADEVAPPA, AGE: MAJOR, OCC: TEACHER, HPBS, R/O KATHLIGERE VILLAGE, CHANNAGIRI TALUK-577213, DAVANAGERE DISTRICT. 6. SMT. RATHNAMMA, W/O E.T. RAVI, AGED ABOUT 53 YEARS, R/O AREHALLI VILLAGE, CHANNAGIRI TALUK-577213, DAVANAGERE DISTRICT. 7. ESHWARAPPA, S/O SIDDAPPA, AGED ABOUT 73 YEARS. 8. NAGARAJAPPA, S/O SIDDAPPA, AGED ABOUT 66 YEARS. RESPONDENTS NO.7 AND 8 ARE R/0 DAGINAKATTE VILLAGE, CHANNAGIRI TALUK-57213, DAVANAGERE DISTRICT. 9. BENAKAPPA, S/O BASAPPA, AGED ABOUT 48 YEARS. 10. NAGARAJAPPA, S/O BASAPPA, AGED ABOUT 46 YEARS. - 3 - HC-KAR NC: 2025:KHC:26348 RSA No. 842 of 2024 11. CHANDRAPPA S/O BASAPPA, AGED ABOUT 44 YEARS. RESPONDENTS NO.9 TO 11 ARE R/O BENAKANAHALLI VILLAGE, HONNALI TALUK-577217, DAVANAGERE DISTRICT. 12. J.R. JAGADEESH, S/O J R SHAMBULINGAPPA, AGED ABOUT 43 YEARS. 13. J.R. MANJUNATH, S/O J.R. SHAMBULINGAPPA, AGED ABOUT 41 YEARS. RESPONDENTS NO.12 AND 13 ARE R/O HOSAJOGA VILLAGE, NYAMATHI TALUK-577223, DAVANAGERE DISTRICT. 14. MANJAPPA, S/O NAGAPPA, AGED ABOUT 45 YEARS, OCC: AGRICULTURIST, R/O SANGAHALLI VILLAGE, CHANNAGIRI TALUK-577213, DAVANAGERE DISTRICT. 15. BASAVANAGOUDA, S/O NAGAPPA, AGED ABOUT 43 YEARS, OCC: AGRICULTURIST, R/O SANGAHALLI VILLAGE, CHANNAGIRI TALUK-577213, DAVANAGERE DISTRICT. 16. SMT. RUDRAMMA, W/O RAVINDARPPA, AGED ABOUT 58 YEARS, R/O DAGINAKATTE VILLAGE, CHANNAGIRI TALUK-577213, DAVANAGERE DISTRICT. - 4 - HC-KAR NC: 2025:KHC:26348 RSA No. 842 of 2024 17. SMT. RATHNAMMA, W/O GARAJAPPA, AGED ABOUT 56 YEARS, R/O DAGINAKATTE VILLAGE, CHANNAGIRI TALUK-577213, DAVANAGERE DISTRICT. 18. SMT. BASAMMA, W/O BENAKAPPA, AGED ABOUT 54 YEARS, R/O BENAKANAHALLI VILLAGE, HONNALI TALUK-577217, DAVANAGERE DISTRICT. 19. SMT. JAYAMMA, W/O PALAKSHAPPA, AGED ABOUT 52 YEARS, R/O SHYAGALE VILLAGE, DAVANAGERE TALUK-577001, DAVANAGERE DISTRICT. 20. SMT. PREMA, W/O NATARAJ, AGED ABOUT 50 YEARS, R/O TANIGERE VILLAGE, CHANNAGIRI TALUK-577213, DAVANAGERE DISTRICT. 21. SMT. SHASHIKALA, W/O NINGARAJA, AGED ABOUT 48 YEARS, R/O TANIGERE VILLAGE, CHANNAGIRI TALUK-577213, DAVANAGERE DISTRICT. 22. J.R. JAGADESH, S/O J.R. SHAMBHULINGAPPA, AGED ABOUT 40 YEARS, R/O HOSAJOGA, NYAMATHI TALUK-577217, DAVANAGERE DISTRICT. - 5 - HC-KAR NC: 2025:KHC:26348 RSA No. 842 of 2024 23. J.R. MANJUNATHA, S/O J.R. SHAMBHULINGAPPA, AGED ABOUT 38 YEARS, R/O HOSAJOGA, NYAMATHI TALUK-577217, DAVANAGERE DISTRICT. 24. K.G. NAGARAJ, S/O K.G. GURUBASAPPA, AGED ABOUT 70 YEARS, OCC: AGRICULTURIST AND BUSINESS, R/O DAGINAKATTE VILLAGE, CHANNAGIRI TALUK-577213, DAVANAGERE DISTRICT. 25. SMT. ANASUYAMMA, W/O LATE MAHADEVAPPA, AGED ABOUT 65 YEARS, R/O DAGINAKTTE VILLAGE, CHANNAGIRI TALUK-577213, DAVANAGERE DISTRICT. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 08.02.2024 PASSED IN R.A.NO.3/2021 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, CHANNAGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.11.2020 PASSED IN FDP NO.17/2008 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, CHANNAGIRI, ALLOWING THE PETITION FILED UNDER SECTION 54 AND 151 OF CPC. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 6 - HC-KAR NC: 2025:KHC:26348 RSA No. 842 of 2024 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission. Heard the learned counsel for the appellant. 2. In the present second appeal, challenge is made to the order passed by the Trial Court in allowing F.D.P.No.17/2008. The Trial Court while considering the judgment and decree passed in the original suit of the year 1996, taken note of the Commissioner’s reports dated 02.07.2020 and 13.08.2020. In the Commissioner’s report dated 02.07.2020, the suit schedule properties were divided as Block 1 to 7 in Sy.No.12/22, Block 1 to 9 in Sy.No.67/P, Block 1 to 7 in Sy.No.68/5, Block 1 to 7 in Sy.No.65/2. In the Commissioner’s report dated 13.08.2020, the suit schedule properties were divided as Block 1 to 10 in Sy.No.67/P and Block 1 to 7 in Sy.No.68/5, as could be seen from the sketches attached to the Commissioner’s report. The Commissioner has conducted the commission as to the best of his ability and the reports appears to be proper after giving notice to the parties. The - 7 - HC-KAR NC: 2025:KHC:26348 RSA No. 842 of 2024 learned counsels appearing for the parties made the submission before the Trial Court that they have no objection on the Commissioner's reports and hence the Trial Court comes to the conclusion that there is no impediment to believe that the Commissioner's reports dated 02.07.2020 and 13.08.2020 are proper and done as per the preliminary decree and hence accepted the same and granted the decree. 3. Being aggrieved by the said judgment, an appeal is filed in R.A.No.3/2021. The Appellate Court having considered the grounds urged in the appeal memo and also considering the judgment of the Trial Court, formulated the point whether the appellant established that the Trial Court erred without following amended Section 54 of CPC and not gave opportunity to the appellant for filing objections as well as choosing demarcated shares for his share and whereby the Trial Court committed serious error while accepting the Commissioner report and granting the relief. The Appellate Court also having re-assessed the material available on record, taken note of that both the - 8 - HC-KAR NC: 2025:KHC:26348 RSA No. 842 of 2024 parties have consented for the Court Commissioner's report. In order to avoid the multiplicity of proceedings, the Court Commissioner himself clarified about the position of item No. 3 petition schedule property about alienation of part of item No.3 petition schedule property and available extent of item No.3 for partition. Therefore, the grounds urged by the appellant is not sustainable and the same is observed in paragraph No.19. The Trial Court has come to the conclusion that the Commissioner’s report is not objected by filing any objections and in the appeal also in detail discussed the same and confirmed the order of the Trial Court. 4. The main contention of the learned counsel for the appellant before this Court is that the land is a small bit of land and the Commissioner’s report is not feasible. The learned counsel would vehemently contend that the small extent of land of 37 guntas was divided into 35 shares and the judgment passed by the Trial Court as well as the Appellate Court is not in conformity with Order XLI Rule 31 of Code Of Civil Procedure. The learned counsel would - 9 - HC-KAR NC: 2025:KHC:26348 RSA No. 842 of 2024 contend that both the Courts are not justified in accepting the Commissioner’s report and the Commissioner is incompetent to allot the share to the parties and hence the matter requires to be re-considered. 5. Having heard the learned counsel for the appellant and also on perusal of the material available on record, there was a preliminary decree passed in O.S.No.9/1996 for the relief of partition and separate possession of immovable property and in terms of the preliminary decree, final decree petition was filed before the Trial Court. The Trial Court appointed the Commissioner and the Commissioner inspected the spot and divided the same in different blocks, which has been extracted in paragraph No.9 of the order passed by the Trial Court. The Trial Court in paragraph No.10 made an observation that both the parties submitted their no objection on the Court Commissioner’s reports and hence accepted the same. However, the same is challenged before the Appellate Court in R.A.No.3/2021. The Appellate Court also having re- assessed the material available of record, particularly the - 10 - HC-KAR NC: 2025:KHC:26348 RSA No. 842 of 2024 grounds which have been urged in the appeal, taken note of that in order to allot the property, the Commissioner was appointed and the Commissioner demarcated the same by conducting the spot inspection and submitted the report and no objection was filed for the Court Commissioner’s report before the Trial Court. But the ground urged before the Appellate Court is that no opportunity was given. The Appellate Court taking note of the submission made before the Trial Court as well as the observation made in paragraph No.10 of the Trial Court’s order, comes to the conclusion that there are no grounds. 6. The very contention of the appellant is that divided the property of 37 guntas into 35 division. The First Appellate Court also taken note of that the challenge made before the Court is that the Trial Court not considered another family property available bearing Ginger No.360 measuring 20 x 160 gaja as referred in paragraph No.6 of the objection statement. Despite urging the said ground, the appellant has not placed on record any material to that effect and the same also considered. The appellant also - 11 - HC-KAR NC: 2025:KHC:26348 RSA No. 842 of 2024 not challenged the preliminary decree passed in O.S.No.9/1996 and hence the Appellate Court comes to the conclusion that when the judgment and decree was not challenged, the question of raising the said issue of non- inclusion of the property does not arise and even with regard to the ground which has been urged regarding amended scope of Section 54 of CPC is also considered by the Appellate Court in paragraph No.21. An observation is also made that the contention urged by the appellant about non-availability of the powers to the Court Commissioner for proposing demarcated shares to a particular party is not sustainable, since the Trial Court not at all passed final decree solely upon the say of the Court Commissioner. The Trial Court drew final decree on the basis of the Court Commissioner’s report and not at the direction of the Court Commissioner. In paragraph No.23 an observation is made that the appellant resisted the final decree on the ground that the Trial Court failed to note about avoiding fragmentation of the properties in view of partition by allotting the shares to the parties. It is needless to observe that, whatever the property being subjected for partition, it - 12 - HC-KAR NC: 2025:KHC:26348 RSA No. 842 of 2024 is inevitable for fragmenting the properties subjected for partition and all details were taken note of by the Appellate Court. Hence, the very contention of the appellant that divided the property of 37 guntas into 35 shares, cannot be accepted and hence I do not find any ground to admit the appeal and frame any substantial question of law. 7. In view of the discussions made above, I pass the following: ORDER The second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 57