- 1 - HC-KAR NC: 2025:KHC:47011 WP No. 11311 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 11311 OF 2024 (GM-CPC) BETWEEN: SRI MITHUN D.B S/O SRI D.B. BASAVARAJAIAH AGED ABOUT 30 YEARS KARATE TEACHER R/AT VINAYAKA NAGARA 7TH CROSS, SHIKARIPURA TOWN SHIVAMOGGA DISTRICT - 577 427. …PETITIONER (BY SRI NANDISH GOWDA G.B, ADV.) AND: 1. SMT. D.B. KUSUMA W/O SRI D.S. BASAVARAJAIAH AGED ABOUT 57 YEARS R/AT NO.13/13, SRIPADMALAYA MEDARA ERI 1ST CROSS NEAR PHOTO STAND VINOBHANAGARA SHIVAMOGGA TOWN - 577 204. 2. SMT. SHILP D.B. W/O SRI MANJUNATHA M.J AGED ABOUT 37 YEARS R/AT SHARADA TEXTILES MAIN ROAD, HOSADURGA CHITRADURGA DISTRICT - 577 527. 3. SMT. PAVITHRA D.B W/O SRI G.K. MAHESH BABU AGED ABOUT 35 YEARS R/AT NO. 233/2, 3RD MAIN ROAD MAHALAKSHMI LAYOUT BENGALURU - 560086. Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:47011 WP No. 11311 of 2024 4. SMT. SHWETHA D.B. D/O SRI D.B. BASAVARAJAIAH AGED ABOUT 31 YEARS R/AT NO.13/13, SRI PADMALAYA MEDARAERI, 1ST CROSS NEAR PHOTO STAND VINOBHANAGARA SHIVAMOGGA TOWN - 577 204. …RESPONDENTS (BY SRI RAGHAVA P, ADV. FOR R-1 TO R-4) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE IMPUGNED ORDER DTD 13.08.22 AND ORDER DTD 03.10.23 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC, SHIKARIPURA IN FDP NO. 9/21 VIDE ANNEXURE-J. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER 1. This writ petition under Article 227 of the Constitution of India is filed with a prayer to set aside the order dated 13.08.2022 and the order dated 03.10.2023 passed by the Court of Senior Civil Judge and JMFC, Shikaripura in FDP No.9 of 2021 vide Annexure-J. 2. Heard the learned counsel for the parties. 3. Facts leading to filing of this petition narrated briefly are: - 3 - HC-KAR NC: 2025:KHC:47011 WP No. 11311 of 2024 Suit in O.S.No.8 of 2019 was filed before the jurisdictional civil Court at Shikaripura seeking the relief of partition and separate possession of the suit schedule properties. A preliminary decree was drawn in O.S.No.8 of 2019 on 18.09.2021. Subsequently, final decree proceedings was initiated before the trial Court in FDP No.9 of 2021 and in the said proceedings since the parties had reported settlement, the matter was referred to the Loka Adalat and based on the compromise petition filed by the parties to the suit, on 13.08.2022, the final decree proceedings was closed and a final decree was directed to be drawn as per the terms of compromise petition filed by the parties. It appears that a joint request was thereafter made by the parties to appoint a surveyor as the court commissioner for the purpose of measuring and dividing the suit schedule property in terms of the compromise petition and accordingly ADLR of Shikaripura was appointed as a court commissioner by the trial Court and a report was filed by the court commissioner. Objection was filed to the said report by the petitioner herein, contending that the court commissioner has not properly measured the property bearing Survey No.223/2. The trial Court vide the order - 4 - HC-KAR NC: 2025:KHC:47011 WP No. 11311 of 2024 impugned dated 03.10.2023 has rejected the objection filed by the petitioner and has accepted the court commissioner's report. Being aggrieved by the aforesaid two orders, the petitioner / defendant is before this Court. 4. Learned counsel for the petitioner submits that the only dispute now between the parties is with regard to property bearing Survey No. 223/2 which totally measures 4 acres 36 guntas. He submits that as per the terms of the compromise petition, land measuring 2 acres 10 guntas from the road side is required to be allotted to the share of the petitioner and the remaining extent of 2 acre 26 guntas is required to be allotted to the respondents. He submits that portion of the property in Survey No.223/2 has been utilised for formation of the road and as a result extent of land in Survey No.223/2 has been reduced. 5. Learned counsel for the respondents does not dispute the said submission made on behalf of the petitioner. He submits that he has no objection for the court commissioner to resurvey the land bearing Survey No.223/2 in terms of the compromise petition and in the event if the land is resurveyed - 5 - HC-KAR NC: 2025:KHC:47011 WP No. 11311 of 2024 as per the existing boundaries of Survey No.223/2 and if it is found that the extent of the land has been reduced due to utilization of a portion of the land for the purpose of road, then the parties will work out their remedy before the trial Court and the available extent of land in Survey No.223/2 will be divided proportionately in terms of the compromise petition. 6. Submissions made on both sides is placed on record. 7. In view of the aforesaid submission, I am of the opinion that it is necessary to direct the court commissioner to resurvey the property bearing survey No.223/2 taking into consideration the submissions made on both sides before this Court. 8. At this juncture, learned counsel for the petitioner submits that he will not press this writ petition with regard to the challenge made to the impugned order dated 13.08.2022 passed in FDP No.9 of 2021. 9. The said submission is placed on record. - 6 - HC-KAR NC: 2025:KHC:47011 WP No. 11311 of 2024 10. Accordingly the following:- ORDER i. Writ petition is partly allowed. ii. The impugned order dated 03.10.2023 passed by the Court of Senior Civil Judge & JMFC, Shikaripura in FDP No.9 of 2021 accepting the court commissioner's report is set aside and the Court Commissioner is directed to resurvey the aforesaid land bearing Survey No.223/2 taking into consideration the existing boundaries of the said land and in the event if it is found that the extent of land available in survey No.223/2 has reduced, then the trial Court shall take the same into consideration and accordingly proportionately modify the extent of the land that was allotted to the share of the petitioner and the respondents herein under the compromise petition. Pending IAs' do not survive for consideration and accordingly, the same are disposed of. Sd/- (S VISHWAJITH SHETTY) JUDGE NMS List No.: 1 Sl No.: 24