- 1 - NC: 2025:KHC-D:4432 RSA No. 101013 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 7TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 101013 OF 2019 (INJ-) BETWEEN: 1. SHRI SHARENIK KUMAR GENITIVE FATHER SHRI TAVANAPPA AND ADOPTED FATHER SHRI GANGARAM KASTURI, AGE: 45 YEARS, OCC: AGRICULTURE, R/O: GOKAK, TQ: GOKAK, DIST: BELAGAVI, NOW RESIDING AT H.NO.101, SUCESS HERITAGE, STATE BANK NAGAR COLONY, PANCHAVATI, PASHAN, PUNE-411008. 2. SHRI ABHINANAND S/O. HIRACHAND KASTURI, AGE: 43 YEARS, OCC: AGRICULTURE, R/O. H.NO.2695, RAVIVAR PETH, GOKAK, TQ: GOKAK, DIST: BELAGAVI. NOW RESIDING AT FL.NO.604, BLDG. G. FLORENTINE, NR. SOPAN BUILDING, GHORPADIGAON, PUNE-411001. SHRI TAVANAPPA S/O. SHANTAPPA KASTURI, SINCE DECEASED BY HIS LR’S 3. SHASHIKALA W/O. TAVANAPPA KASTURI, AGE: 78 YEARS, OCC: HOUSEHOLD, R/O: PUNE (MAHARASHTRA). NOW RESIDING AT FL. NO.303, NAYAN HOUSING SOCIETY, ZCS COLONY, BHOSALE NAGAR, PUNE. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:4432 RSA No. 101013 of 2019 4. SHRI HIRACHAND S/O. SHANTAPPA KASTURI, SINCE DECEASED BY LR. 4A) RAVI S/O. HIRACHAND KASTURI, AGE: 46 YEARS, OCC: PRIVATE SERVICE, R/O. NO.1818, 42ND CROSS, KUMARASWAMY LAYOUT, BENGALURU-560 078. …APPELLANTS (BY SRI. CHETAN MUNNOLI, ADVOCATE) AND: SMT. SUVARNABAI W/O. TATYASHEB KASTURI, SINCE DECEASED BY HER LR’S 1. SHRI BHARAMAKUMAR S/O. TATYASAHEB KASTURI, AGE: 42 YEARS OCC: SERVICE, R/O. CTS NO.2695, RAVIVAR PETH, GOKAK, TQ: GOKAK, DIST: BELAGAVI. SMT. KASTURIBAI W/O. DHANAPPA @ PADMARAJ VANDUDRI, SINCE DECEASED BY HER LR’S SHRI. DHANPAL S/O. PADMAPPA @ PADMARAJ VANKUKRI, SINCE DECEASED BY HIS LR’S 2. SHRI BHARATESH S/O. DHANAPAL VANKUDRI, AGE: 48 YEARS, OCC: BUSINESS, R/O: OLD MUNICIPALITY ROAD, SHOP PADMAPRASAD, ILAK, TQ: HUNAGUND, DIST: BAGALKOT-587125. 3. SHRI BHARAMAKUMAR S/O. DHANPAL VANDAKUDRI @ VANKUDRI, AGE: 48 YEARS, OCC: BUSINESS, R/O: OLD MUNICIPALITY ROAD, SHOP PADMAPRASAD, ILAK, TQ: HUNAGUND, DIST: BAGALKOT-587125. - 3 - NC: 2025:KHC-D:4432 RSA No. 101013 of 2019 4. SMT. SAVITRI W/O. BHARAMAKUMAR KASTURI, AGE: 58 YEARS, OCC: HOUSEHOLD, R/O: H.NO.2696, JAIN GALLI, RAVIVAR PETH, GOKAK. 5. SMT. LEELAVATHI PARSHWANTH BARAGALI, AGE: 58 YEARS, OCC: BUSINESS, R/O: HUNGUNDI, TQ: JAMAKHANDI, DIST: BAGALKOT. 6. SMT. VIMALA W/O. BHARAMAPPA BURSHI, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O: TERDAL, DIST: BAGALKOT. 7. SMT. VIJAYASHREE W/O. ABHINANDAN GUNGADI, AGE: 43 YEARS, OCC: HOUSEHOLD, R/O: C/O. BRAHMANATH STEELS, MAHAVEER GALLI, JAIN PETH, HUBBALLI. 8. SMT. KASHERABAI W/O. SHANTARAJ HOOLI, AGE: 37 YEARS, OCC: HOUSEHOLD, R/O: ILKAL, TQ: HUNAGUND, DIST: BAGALKOT. GANGARAM @ APPAJJA RAMACHANDRA KASTURI, DECEASED BY HIS LR’S SMT. KASHIBAI D/O. BHUJANG SVANJI, SINCE DECEASED BY HER LRS R6 SMT. SONUBAI W/O. KRISHNA WADKAR, SINCE DECEASED BY LR’S 9. SHRI KRISHNA S/O. DHODIBA WADKAR, AGE: 86 YEARS, OCC: NIL, R/O: 1602, JALAL GALLI, GOKAK, TQ: GOKAK, DIST: BELAGAVI. 10. SHRI GAJANAN S/O. KRISHNA WADKAR, AGE: 45 YEARS, OCC: BUSINESS, R/O: 1602, JALAL GALLI, GOKAK, - 4 - NC: 2025:KHC-D:4432 RSA No. 101013 of 2019 TQ: GOKAK, DIST: BELAGAVI. 11. SHRI MAHESH S/O. KRISHNA WADKAR, AGE: 42 YEARS, OCC: NIL, R/O: 1602, JALAL GALLI, GOKAK, TQ: GOKAK, DIST: BELAGAVI. 12. SHRI RAMESH S/O. KRISHNA WADKAR, AGE: 40 YEARS, OCC: BUSINESS, R/O: 1602, JALAL GALLI, GOKAK, TQ: GOKAK, DIST: BELAGAVI. 13. SHRI JYOTIBA @ JYOTIPRAKASH KRISHNA WADKAR, AGE: 38 YEARS, OCC: NIL, R/O: 1602, JALAL GALLI, GOKAK, TQ: GOKAK, DIST: BELAGAVI. 14. SMT. MAMATA D/O. KRISHNA WADKAR, AGE: 48 YEARS, OCC: HOUSEHOLD, R/O: 1602, JALAL GALLI, GOKAK, TQ: GOKAK, DIST: BELAGAVI. 15. SMT. ANITA KRISHNA WADKAR, AGE: 35 YEARS, OCC: HOUSEHOLD, R/O: 1602, JALAL GALLI, GOKAK, TQ: GOKAK, DIST: BELAGAVI. 16. SMT. SUNITA D/O. KRISHNA WADKAR, AGE: 32 YEARS, OCC: HOUSEHOLD, R/O: 1602, JALAL GALLI, GOKAK, TQ: GOKAK, DIST: BELAGAVI. SHRI RAMCHANDRA CHINTAMANI KASTURI, SINCE DECEASED BY HIS LR’S 17. SMT. SHANTABAI W/O. RAMACHANDRA KASTURI, AGE: 64 YEARS, OCC: HOUSEHOLD WORK, R/O: H.NO.2881, JALAL GALLI, RAVIWAR PETH, GOKAK, DIST: BELAGAVI. - 5 - NC: 2025:KHC-D:4432 RSA No. 101013 of 2019 CHINTAMANI @ RAJU RAMACHANDRA KASTURI, SINCE DECEASED BY HIS LR 18. MUDDAVVA @ SHOBA D/O. RAMACHANDRA KASTURI, AGE: 54 YEARS, OCC: HOUSEHOLD WORK R/O. H.NO.2881, JALAL GALLI, RAVIWAR PETH, GOKAK, DIST: BELAGAVI. MOTICHAND CHINTAMANI KASTURI, SINCE DECEASED BY HIS LR’S 19. SMT. SUNANDA W/O. MOTICHAND KASTURI, AGE: 57 YEARS, OCC: HOUSEHOLD WORK, R/O: JAIN PETH, HUBBALLI. 20. SHRI BAPU BHUPAL KASTURI, AGE: 50 YEARS, OCC: TRADE, R/O: H.NO.1999, KORE GALLI, SHAHPUR, BELAGAVI. 21. SHRI. CHANDRAKANT BHUPAL KASTURI, AGE: 47 YEARS, OCC: TRADE, R/O. H.NO.1999, KORE GALLI, SHAHPUR, BELAGAVI. 22. SHRI. RAMACHANDRA BHUPAL KASTURI, AGE: 45 YEARS, OCC: TRADE, R/O. H.NO.1999, KORE GALLI, SHAHPUR, BELAGAVI. 23. SHRI. DHANYAKUMAR BHUPAL KASTURI, AGE: 39 YEARS, OCC: TRADE, R/O. H.NO.1999, KORE GALLI, SHAHPUR, BELAGAVI. 24. SHRI RAJENDRA BHUPAL KASTURI, AGE: 39 YEARS, OCC: TRADE, R/O. H.NO.1999, KORE GALLI, - 6 - NC: 2025:KHC-D:4432 RSA No. 101013 of 2019 SHAHPUR, BELAGAVI. 25. SMT. SHANKUNTALA W/O. RATNAPPA GOGI, AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O. H.NO.1999, KORE GALLI, SHAHPUR, BELAGAVI. 26. SMT. PRAMILA W/O. PRABHAKAR DASURKAR, AGE: 41 YEARS, OCC: HOUSEHOLD WORK, R/O. BOMBAY, C/O. PRABHAKAR GANESH DASURKAR, 29-G, KHOTACHIWADI, AMBESWAR BHUVAN, PAHILA MALA B.NO.12, GIRGAON, BOMBAY-4. 27. SMT. GANGUBAI W/O. BHUPAL KASTURI, AGE: 72 YEARS, OCC: HOUSEHOLD WORK, R/O. H.NO.1999, KORE GALLI, SHAHPUR, BELAGAVI. 28. VAISHALI D/O. TAVANAPPA KASTURI, AGE: 53 YEARS, OCC: SERVICE, R/O. PUNE (MAHARASHTRA). 29. GOUTAM S/O. TAVANAPPA KASTURI, AGE: 49 YEARS, OCC: SERVICE, R/O. PUNE (MAHARASHTRA). …RESPONDENTS (BY SRI. SANGRAM S. KULKARNI, ADVOCATE FOR R1 & R3-R8; SRI. SHRIHARSH A. NEELOPANT, ADVOCATE FOR R11 & R13; R2, R12, R23 ARE SERVED UNREPRESENTED; R9 & R21 DECEASED; R10 HELD SUFFICIENT; R14-R15 NOTICE DISPENSED; R16-R22 & R24-R29 DISPENSED WITH) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC 1908 PRAYING TO THE JUDGMENT & DECREE PASSED BY THE XII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI, SITTING AT GOKAK DATED 18.09.2019 IN R.A.NO.218/2014 CONFIRMING THE ORDER AND DECREE PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE, GOKAK, DATED 27.09.2014 IN F.D.P. NO.10/1981, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 7 - NC: 2025:KHC-D:4432 RSA No. 101013 of 2019 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This appeal is preferred by the respondents in FDP No.10/1981 challenging the judgment and decree dated 18.09.2019 in R.A.No.218/2014 on the file of the XII Additional District and Sessions Judge, Belagavi, sitting at Gokak (for short “the First Appellate Court”) dismissing the appeal and confirming the judgment and decree dated 27.09.2014 in FDP No.10/1981 on the file of the Principal Senior Civil Judge, Gokak (for short “the FDP Court”) allowing the petition under Order XX Rule 18 of the Code of Civil Procedure, 1908 (for short “CPC”). 2. For the sake of convenience, the parties are referred as per their rank before the FDP Court. 3. It is the case of the petitioners in FDP No.10/1981 that the Trial Court has passed preliminary decree in O.S.No.44/1966. The petitioners were plaintiffs in the said suit and have given half share in suit schedule ‘G’ and ‘H’ properties. It is also stated in the petition that the judgment and decree passed in O.S.No.44/1966 has reached finality in RSA No.468/2003 and RSA No.467/2003. Thereafter the - 8 - NC: 2025:KHC-D:4432 RSA No. 101013 of 2019 petitioners presented FDP No.1/2010 under Order XX Rule 18 of CPC for drawing up the final decree pursuant to the preliminary decree in O.S.No.44/1966, which reached finality in view of the judgment passed by this Court in RSA No.468/2003 and RSA No.467/2003. 3.1. After service of notice, the respondent entered appearance and contested the matter. In the meanwhile, the Trial Court has appointed Court Commissioner for division of the properties. The FDP Court, based on the report of the Court Commissioner, allowed the petition under Order XX Rule 18 of CPC and feeling aggrieved by the same, the petitioners have presented R.A.No.218/2014 on the file of the First Appellate Court and same was resisted by the respondents/petitioners in FDP No.10/1981. The First Appellate Court, by its judgment and decree dated 18.09.2019 dismissed the appeal consequently, confirmed the judgment and decree in FDP No.10/1981. Feeling aggrieved by the same, the respondents in FDP No.10/1981 have preferred this Regular Second Appeal. - 9 - NC: 2025:KHC-D:4432 RSA No. 101013 of 2019 4. I have heard Sri. Chetan Munnolli, learned counsel appearing for the appellants and Sri. Sangram S Kulkarni, learned counsel appearing for the respondents. 5. Sri.Chetan Munnolli, learned counsel appearing for the appellants submitted that the Trial Court has committed an error in modifying the Court Commissioner Report in respect of agricultural land and same is not permissible in law and therefore, sought for interference of this Court. It is the submission of the learned counsel appearing for the appellant that the said erroneous judgment passed by the Trial Court has been confirmed by the First Appellate Court without exercising jurisdiction under Order XLI Rule 31 of CPC and therefore, sought interference of this Court. It is the grievance of the appellants herein that both the Courts below have committed serious error in not accepting the Court Commissioner report in respect of agricultural lands where the commissioner report has not mentioned the valuation relating to schedule ‘G’ and ‘H’ agricultural properties and accordingly, sought for interference of this Court. - 10 - NC: 2025:KHC-D:4432 RSA No. 101013 of 2019 6. Per contra, Sri.Sangram S Kulkarni, learned counsel appearing for the respondent sought to justify the impugned judgment and decree passed by the Courts below and contended that the Trial Court by exercising the discretion for equitable distribution of the land in question, as the defendants/appellants herein have parted with the portion of the land in question during the pendency of the suit and the said aspect of the matter was considered by the Trial Court, which is rectified in equitable distribution between the petitioners and the defendants, and therefore, sought for confirmation of the judgment and decree in FDP No.10/1981. 7. In the light of the submissions made by the learned counsels appearing for the parties, it is not in dispute that O.S.No.44/1966 was filed by the plaintiff seeking partition and separate possession in respect of the suit schedule properties which came to be decreed against which, the petitioners have preferred FDP No.10/1981 under Order XX Rule 18 of CPC. During the proceedings before the FDP Court, the Commissioner was appointed for equitable distribution of the properties. It is also not in dispute that the Commissioner has been examined and cross-examined by the respective parties. - 11 - NC: 2025:KHC-D:4432 RSA No. 101013 of 2019 The FDP Court after considering the material on record, particularly, by looking into the report of the Commissioner and in order to ensure that both the parties shall get equal extent, has passed the impugned order taking into consideration the sale of the portion of the land by the defendants/appellants herein to an extent of 27 Acres 7 Guntas and in that view of the matter, the Trial Court has interfered with the portion of the Commissioner report for equitable distribution of the land since the defendants have sold the portion of the land as mentioned above. In that view of the matter, since the suit is of the year 1966 and the Final Decree Proceedings are of the year 1981, I am of the view that no interference is called for at this juncture insofar as division of the properties is concerned in the light of the preliminary decree in O.S.No.44/1966. 8. The First appellate Court, after considering the material on record, taking into consideration the equitable distribution of the properties in favour of the appellants and respondents herein, has rightly confirmed the same and no interference is called for in this appeal insofar as agricultural lands are concerned. Accordingly, the appellants herein have not made out any grounds to interfere in this appeal under - 12 - NC: 2025:KHC-D:4432 RSA No. 101013 of 2019 Section 100 of CPC to formulate substantial question of law. Accordingly, the appeal stands dismissed at the stage of admission itself. 9. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. Sd/- (E.S.INDIRESH) JUDGE YAN CT-MCK List No.: 1 Sl No.: 24