- 1 - HC-KAR NC: 2026:KHC:30070 W.P. No.13840/2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.13840/2021 (GM-CPC) BETWEEN: MRS. JILLI D’SOUZA ALIAS BAI W/O MR. MALAKI D’SOUZA AGED ABOUT 71 YEARS R/AT DOOR NO 6-17 VI BLOCK, KRISHNAPURA KATIPALLA VILLAGE MANGALURU TALUK D.K. DISTRICT 5714159. …PETITIONER (BY SRI. A. KESHAVA BHAT A, ADV.,) AND: 1. 2. MR. HENRY D’SOUZA S/O LATE JOHN D’SOUZA AGED ABOUT 69 YEARS R/AT BASTIPADPU ULLAL VILLAGE MANGALURU TALUK D.K.DISTRICT 574159. MR. FRANCIS D’SOUZA S/O LATE JOHN D’SOUZA AGED ABOUT 67 YEARS R/AT. BASTIPADPU, ULLAL VILLAGE MANGALURU TALUK D.K. DISTRICT-574159 (DECEASED) Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:30070 W.P. No.13840/2021 2(a) 2(b) 2(c) 2(d) MRS. PAULINA D’SOUZA W/O LATE FRANCIS D’SOUZA AGED ABOUT 64 YEARS. MR. FLOYED PRAMITH D’SOUZA S/O LATE FRANCIS D’SOUZA AGED ABOUT 36 YEARS. MRS. FERMINA PREETHI D’SOUZA D/O LATE FRANCIS D’SOUZA AGED ABOUT 34 YEARS. MR. FEBIYAN D’SOUZA S/O LATE FRANCIS D’SOUZA AGED ABOUT 29 YEARS. RESPONDENTS NO.2(a) TO 2(d) ARE R/AT. BASTIPADPU, ULLAL VILLAGE MANGALURU TALUK D.K. DISTRICT – 574159. 3. MRS. HILDA D’SOUZA D/O LATE JOHN D’SOUZA AGED ABOUT 65 YERS R/AT BASTIPADPU ULLAL VILLAGE MANGALURU TALUK D.K.DISTRICT 574159. 4. MRS. LILLY D’SOUZA W/O HARRY D’SOUZA AGED ABOUT 64 YEARS R/AT ADAMKUDRU PERMANNUR POST MANGALURU TALUK D.K.DISTRICT 574183. 5. MR. GERALD D’SOUZA AGE MAJOR R/AT ULLAL HOIGE, PERMANNUR POST MANGALURU TALUK D.K.DISTRICT 574183. - 3 - HC-KAR NC: 2026:KHC:30070 W.P. No.13840/2021 6. MR. ROSHAN D’SOUZA S/O GERALD D’SOUZA AGED ABOUT 36 YEARS R/AT ULLAL HOIGE, PERMANNUR POST MANGALURU TALUK D.K.DISTRICT 574183. …RESPONDENTS (BY SRI. K. RAVISHANKAR, ADV., FOR R1 V/O/DTD:02.08.2021, NOTICE TO R3 TO R6 IS D/W V/O/DTD:21.03.2024, NOTICE TO R2(c) IS H/S R2 (a, b & d) ARE SD AND UNREPRESENTED) - - - THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE RECORDS PERTAINING TO FDP NO.16/2010 FROM THE FILE OF III ADDITIONAL CIVIL JUDGE (JR.DN) AND JMFC MANGALURU AND ON PERUSAL OF SAME. SET ASIDE THE ORDER DATED 06.03.2021 REJECTING THE COMMISSIONER REPORT DATED 19.07.2018 MADE IN FDP NO.16/2010 ON THE FILE OF III ADDITIONAL CIVIL JUDGE (JR.DN) AND JMFC MANGALURU VIDE ANNEXURE-A & ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This writ petition is filed challenging the order dated 06.03.2021 passed in FDP No.16/2010 by the III Additional Civil Judge (Jr. Dn.) and JMFC, Mangalore (for short, ‘the FDP Court’). - 4 - HC-KAR NC: 2026:KHC:30070 W.P. No.13840/2021 2. Sri.A.Keshava Bhat, learned counsel appearing for the petitioner submits that the petitioner has filed a suit for partition and separate possession which has attained finality. He thereafter initiated final decree proceedings. In the said proceedings, a Court Commissioner was appointed which was not opposed by the other side and he submitted a report. It is submitted that the Court Commissioner’s report was opposed by the respondent No.1. The FDP Court upheld the said objections and proceeded to reject the Court Commissioner's report. It is further submitted that the FDP Court, under the impugned order has incorrectly come to conclusion that the Court Commissioner has divided the properties and failed to take note of the fact that it is only a report and recommendation and if there is any mention with regard to the division, in such circumstances also, it is permissible in view of the amended Section 54 of the Code of Civil Procedure, 1908 (for short, ‘the CPC’) by the Karnataka State Amendment. It is also submitted that the - 5 - HC-KAR NC: 2026:KHC:30070 W.P. No.13840/2021 Court itself cannot go and measure and make division of the property. The Court Commissioner is an arm of the Court. As per the memo of instructions, the Court Commissioner executed the warrant and submitted a report which ought not to have been rejected by the FDP Court. It is contended that the Court Commissioner has all the powers to state the factual matrix with regard to the existence of the property and measurement of the property. In the instant case, at one instance, the Court Commissioner has observed that though in a preliminary decree the property is shown as 60 cents, however in actual measurement, it is only 46 cents and in another survey number, it is in excess than the preliminary decree. Considering all these aspects, the Court Commissioner has allotted the share to a particular person and other parties were ordered to pay the amount which is equitable. It is further contended that the language used by the Court Commissioner that it is shown as allotted, ought to have been ignored by the Court. However, the Court has - 6 - HC-KAR NC: 2026:KHC:30070 W.P. No.13840/2021 considered the report but has proceeded to reject in its entirety. 3. In support of his contentions, he placed reliance on the decision of this Court in the case of ASHOKREDDY, GULBARGA Vs. THE DEPUTY COMMISSIONER AND 5 OTHERS1 and contended that this Court has made an observation in the aforesaid case that when the power is conferred on a particular person to do an act, it includes a power to do the extended act also. In support of the said preposition, he also placed reliance on the decision of the Hon'ble Supreme Court in the case of SUB-DIVISIONAL OFFICER, SADAR FAIZABAD VS SHAMBHOO NARAIN SINGH2. Lastly, he placed reliance on the decision of this Court in the case of LAGAMA BEERASIDDA PUJERI Vs. KHANAPPA MALAKARI KOTRE AND OTHERS3 and contended that the learned Single Judge has considered 1 W.P.No.4480/1979 dt. 29.05.1980 2 AIR 1970 SC 140 3 ILR 2016 KAR 1180 - 7 - HC-KAR NC: 2026:KHC:30070 W.P. No.13840/2021 the effect of the Karnataka Amendment to Section 54 of the CPC. Hence, he seeks to allow the petition. 4. Per contra, Sri.K.Ravishankar, learned counsel appearing for the respondent No.1 supports the order of the FDP Court and submits that the decision of the FDP Court is squarely covered by the decision of the learned Single Judge in the case of SMT.OBAMMA AND OTHERS Vs. SRI.BORAIAH AND OTHERS4 and in the case of SANGA REDDY Vs. SMT.BASAMMA AND OTHERS5. Hence, he seeks to dismiss the petition. 5. I have heard the arguments of the learned counsel for the petitioner, the learned counsel for the respondent No.1 and meticulously perused the material available on record. 6. The petitioner has filed a suit in O.S.No.699/2007 for the relief of partition and separate possession. The said suit came to be decreed vide 4 ILR 2016 KAR 4692 5 ILR 2004 KAR 3664 - 8 - HC-KAR NC: 2026:KHC:30070 W.P. No.13840/2021 judgment and decree dated 15.07.2010 which was assailed in R.A.No.104/2010 and thereafter, in R.S.A.No.1950/2013 which were dismissed. In other words, the preliminary decree in O.S.No.699/2007 has attained finality. The records indicate that the petitioner has initiated the final decree proceedings and in the said proceedings, the FDP Court appointed the Court Commissioner. Admittedly, the respondents have not opposed the appointment of the Court Commissioner. The Court Commissioner has executed the warrant and submitted the report which is produced at Annexure-B to the writ petition. The report of the Court Commissioner was objected by the respondent Nos.1 and 2 mainly on the ground that the Court Commissioner, instead of giving a factual report, has exceeded his jurisdiction and proceeded to divide the property, which is impermissible. The FDP Court accepted the said objection and rejected the Court Commissioner's report. - 9 - HC-KAR NC: 2026:KHC:30070 W.P. No.13840/2021 7. The primary contention of the learned counsel for the petitioner is that the Court Commissioner’s report is an extended arm of the Civil Court. The Court Commissioner has all ancillary power including a suggestion to the Civil Court for allotment of share and also to order for allotment of a particular amount to the parties and the FDP Court would not have taken exception for such exercise. In support of his contentions, reliance is placed on the decision of this Court in the case of ASHOKREDDY, GULBARGA referred supra. In the said case, it is observed that a power is impliedly conferred upon the Authority by an Act as otherwise, the purpose for which the power is conferred cannot at all be accomplished. The said decision also refers a passage of Maxwell's Interpretation of Statutes, Eleventh Edition and a decision of the Hon'ble Supreme Court. It is required to be noticed that the Court, in the said case was considering the powers conferred under the statute on the Authority and not relating to FDP proceedings. - 10 - HC-KAR NC: 2026:KHC:30070 W.P. No.13840/2021 8. For the similar proposition, a reliance is placed on the decision of the Hon'ble Supreme Court in the case of SUB-DIVISIONAL OFFICER, SADAR FAIZABAD referred supra. In the said case, the Hon'ble Supreme Court has observed that the power conferred on the Authority includes ancillary power. However, it is required to be noticed that the said observation was in the context of departmental enquiry proceedings. 9. A perusal of Section 54 of the CPC as per the Karnataka Amendment clearly indicates that Section 54 of the CPC, speaks about the manner in which the preliminary decree has to be executed. It further makes it clear that the division of property rests with the Court alone. It also specifies that if necessary, the Courts can appoint a Revenue Officer not below the rank of Tahsildar or such other Officer as the Court may appoint as Commissioner in that behalf. - 11 - HC-KAR NC: 2026:KHC:30070 W.P. No.13840/2021 10. The judgment relied on by the learned counsel for the petitioner in the case of LAGAMA BEERASIDDA PUJERI referred supra, deals with the effect of the Karnataka State Amendment. This Court, in the aforesaid decision has clearly held that the Court has ample power to appoint not only the persons referred in Section 54 of the CPC, but other persons as well. There is no quarrel with the said preposition. 11. A perusal of the report of the Court Commissioner produced at Annexure-B clearly indicates that the Court Commissioner, in the beginning of the report , makes a narration with regard to the existence of the extent in two survey numbers and in the later part i.e. in page No.3 of the report, proceeds to allot the properties in respect of the parties of the final decree proceedings and directs the other parties to pay certain amounts. Section 54 of the CPC, makes it clear that the power to allot or make division of property vests with the Court and not by the Court Commissioner. In the case on hand, the - 12 - HC-KAR NC: 2026:KHC:30070 W.P. No.13840/2021 Court Commissioner proceeded to allot the properties to the parties and directed other parties to make good the same by receiving the amount. Such exercise of the Court Commissioner would amount to allotment of share by himself to the parties and the Court Commissioner has usurped the power of the Court conferred under Section 54 of the CPC. The Court Commissioner, at best, can submit the report, give suggestions and place the factual matrix before the Court. It is ultimately the Court which has to exercise the power under Section 54 of the CPC, and allot the share keeping in mind the preliminary decree. The decision of this Court in the case of SMT.OBAMMA AND OTHERS referred supra at paragraphs 9, 10 and 11 has held as under: “9. I have given my anxious consideration to the arguments advanced by the Learned Counsel for the parties to the lis. It is unfortunate case, where the decree was made as long back as in the year 1981. The suit filed in the year 1975. Though the decree was passed in the year 1981 and affirmed by this Court in RSA 727/1991, till today, the decree has not - 13 - HC-KAR NC: 2026:KHC:30070 W.P. No.13840/2021 been implemented. It is the mistake committed by the Court for not making division of the suit properties as contemplated under the amended provisions of Section 54 of the Code of Civil Procedure. 10. In view of the amendment of Section 54 of the Code of Civil Procedure, the shares or division shall be made by the Court in accordance with law, if any, on the basis of report of the revenue officer not below the rank of Tahsildar, which reads as under: “54 Partition of estate or separation of share : Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share of such an estate shall be made bv the Court in accordance with the law if any, for the time being in force relating to the particular or the separate possession of shares, and if necessary on the report of a revenue officer, not below the rank of Tahsildar or such other person as the court may appoint as Commissioner in that behalf”. (emphasis supplied) 11. In view of the amendment of Section 54 of Code of Civil Procedure by Act No. 36 of 1998 with effect from 1.2.2001, in all cases to which the amended provision applies, the “partition shall be made only by the Court and not by the revenue officer or the Commissioner”. The Court if necessary - 14 - HC-KAR NC: 2026:KHC:30070 W.P. No.13840/2021 on the report of the revenue officer not below the rank of the Tahsildar to enable to it to effect partition, it can effect partition on such report and Court Commissioner cannot make a division. In the present case, admittedly, the division is made by the Court Commissioner and not by the Court. Therefore, the substantial question of law has to be answered in negative holding that the Final Decree Proceedings accepting the division made by the Court Commissioner is contrary to the amended provisions of Section 54 of the Code of Civil Procedure.” 12. Keeping in mind the purport of Section 54 of the CPC as amended as per the Karnataka Amendment, I am of the considered view that the FDP Court was fully justified in coming to the conclusion that the Court Commissioner has exceeded its jurisdiction in allotting the share and proceeded to reject the same. I do not find any error or perversity in the impugned order calling for interference in the present petition. - 15 - HC-KAR NC: 2026:KHC:30070 W.P. No.13840/2021 13. The writ petition is devoid of merit and the same is accordingly rejected. Consequently, the pending application stands disposed of. Sd/- (VIJAYKUMAR A. PATIL) JUDGE RV List No.: 1 Sl No.: 24