- 1 - HC-KAR CNR: KAHC010216312026 NC: 2026:KHC:40479 RFA No. 681 of 2026 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF AUGUST, 2026 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.681 OF 2026 (PAR) BETWEEN: 1. VENKATASWAMY REDDY S/O LATE, SHAMANNA REDDY AGED ABOUT 60 YEARS 2. SRINIVAS REDDY S/O LATE SHAMANNA REDDY AGED ABOUT 49 YEARS 3. SRIDHARA REDDY S/O LATE SHAMANNA REDDY AGED ABOUT 45 YEARS 4. SMT. MANJULA D/O LATE SHAMANNA REDDY AGED ABOUT 57 YEARS 5. BABU REDDY S/O LATE SHAMANNA REDDY AGED ABOUT 53 YEARS 6. SMT. NIRMALA D/O LATE SHAMANNA REDDY AGED ABOUT 51 YEARS APPELLANTS 1 TO 6 ARE RESIDENTS OF DODDAKANNAHALLI VILLAGE, CARMELARAM POST, VARTHUR HOBLI, R Digitally signed by THEJAS KUMAR N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR CNR: KAHC010216312026 NC: 2026:KHC:40479 RFA No. 681 of 2026 BENGALURU EAST TALUK, BENGALURU - 560 035. …APPELLANTS (BY SRI. PAPIREDDY SOMARAJU A, SENIOR ADVOCATE A/W SRI. SOMARAJU A., ADVOCATE) AND: 1. SMT. GOWRAMMA W/O LATE NARAYANA REDDY DEAD BY HER LRS SMT. BHAGYAMMA D/O LATE NARAYANA REDDY W/O BODA REDDY AGED ABOUT 50 YEARS R/O MUNNEKOLALA VILLAGE MARATHAHALLI POST, BENGALURU – 560 037. 2. NAGARAJA REDDY S/O LATE NARAYANA REDDY AGED ABOUT 54 YEARS R/O MUNNEKOLALA VILLAGE MARATHAHALLI POST BENGALURU – 560 037. …RESPONDENTS (BY SRI. POOVAIAH M A, ADVOCATE FOR R1 & R2) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC, AGAINST THE ORDER DATED 02.02.2026 PASSED IN FDP NO.95/2009ON THE FILE OF I ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (CCH-02), BENGALURU AND ETC., - 3 - HC-KAR CNR: KAHC010216312026 NC: 2026:KHC:40479 RFA No. 681 of 2026 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT Though the matter is listed for admission, with the consent of learned Senior Counsel, Sri. G. Papireddy, appearing on behalf of the appellants and the learned counsel appearing on behalf of the respondents, the matter is taken up for final disposal. 2. This Regular First Appeal is filed by the respondent Nos.1(a) to 1(g) in FDP No.95/2009 (defendants in O.S.No.2635/2003) calling in question the order dated 02.02.2026 passed in FDP No.95/2009 by the I Additional City Civil and Sessions Judge (CCH-02) at Bengaluru1, thereby the final decree is passed under Order XX Rules 12 and 18 of CPC by accepting the report of the Taluka Surveyor/Court Commissioner, allotting Portion ‘A’ property to the petitioners (respondent Nos.1 and 2 1hereinafter referred to as ‘the FDP Court’ for short - 4 - HC-KAR CNR: KAHC010216312026 NC: 2026:KHC:40479 RFA No. 681 of 2026 herein) and Portion ‘B’ to the respondents (the appellants herein). 3. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the FDP Court. 4. The suit filed in O.S.No.2635/2003 was decreed by granting half share to the plaintiffs (respondents herein) and half share to the defendants (the appellants herein) in suit schedule item Nos.1 to 14 properties. Against that, the defendants have filed an appeal in RFA No.817/2009 before this Court and this Court has modified the preliminary decree by the order dated 13.10.2022 and the said order has attained finality. 5. Thereafter, the plaintiffs have initiated final decree proceedings in FDP No.95/2009 before the FDP Court and the FDP Court appointed Taluka Surveyor to divide the properties by metes and bounds after carrying - 5 - HC-KAR CNR: KAHC010216312026 NC: 2026:KHC:40479 RFA No. 681 of 2026 out the survey work. The Taluka Surveyor/Court Commissioner has submitted a report. After accepting the same, the FDP Court has ordered for drawing up of the final decree as per the report of the Taluka Surveyor/Court Commissioner, thereby allotting Portion ‘A’ property to the plaintiffs and Portion ‘B’ property to the defendants. 6. Being aggrieved by it, the defendants, who are the respondents in FDP No.95/2009 have preferred this appeal by raising various grounds in the memorandum of appeal and the learned Senior Counsel, Sri. G. Papireddy, appearing on behalf of the appellants/defendants submitted that as per Section 54 of the CPC, the Court shall carryout division of properties, if necessary, by taking recourse of the Revenue Officer, not by the Tahasildar, but in the present case, the Taluka Surveyor is assigned the work of division of the properties and is of a inferior rank to the Tahasildar; therefore, the order passed by the FDP Court is contrary to Section 54 of CPC. - 6 - HC-KAR CNR: KAHC010216312026 NC: 2026:KHC:40479 RFA No. 681 of 2026 7. Further, it is submitted that the suit schedule item No.5 land to the extent of 2.5 guntas in Sy.No.31/2A (2C and 2E) (old Sy.No.31/2), out of 25 guntas has been utilized by the Gram Panchayath for the formation of a road without giving compensation and this is not included in the Court Commissioner’s report. Further, it is submitted that the land to the extent of 5 guntas in the suit schedule item No.10 property bearing Sy.No.4/2A (old Sy.No.4/2) out of 01 acre 35 guntas was encroached upon by neighbouring land owners and this is not shown in the Court Commissioner’s report; therefore, it would cause prejudice to the appellants/defendants. 8. Likewise, the land bearing Sy.No.21/1A (old Sy.No.21/1) measuring a total extent of 01 acre 13 guntas, which is suit schedule item No.6 property, out of which 1/4th of land has been encroached and in the suit schedule item No.9 land bearing Sy.No.36/3A (old Sy.No.36/3) out of a total extent of 30 guntas, 03 guntas - 7 - HC-KAR CNR: KAHC010216312026 NC: 2026:KHC:40479 RFA No. 681 of 2026 of land was acquired and it is not shown in the report, but it has been shown as a shortfall in the Court Commissioner’s report. Therefore, it is submitted that the report obtained by the Court Commissioner is by the Revenue Officer, who is of a inferior rank to the Tahasildar. Thus, it is violation of Section 54 of CPC and the survey report is not correct and therefore, by relying on such incorrect report, the FDP Court has ordered for drawing up of the final decree. Hence, prays to interfere with the order passed by the FDP Court by allowing the appeal and remand the matter to the FDP Court for fresh consideration of the final decree. 9. In support of the arguments, learned Senior Counsel, Sri. G. Papireddy appearing on behalf of the appellants/defendants places reliance on the judgment of this Court in the case of OBAMMA; BORAIAH; CHANNAIAH; THIPPAIAH; BORAMMA; BADABORAIAH; THIPPAMMA VS. BORAIAH; - 8 - HC-KAR CNR: KAHC010216312026 NC: 2026:KHC:40479 RFA No. 681 of 2026 BORAMMA; BANGARAIAH2. Hence, prays to interfere with the order passed by the FDP Court. 10. On the other hand, learned counsel appearing on behalf of the respondents/plaintiffs, who are the petitioners in the final decree proceedings submitted that the Court Commissioner’s report is correct and accordingly, Portion ‘A’ property is allotted to the plaintiffs and Portion ‘B’ property is allotted to the defendants and these Portions ‘A’ and ‘B’ properties have a common road and therefore, both Portion ‘A’ and Portion ‘B’ scheduled properties have access to the road. Therefore, it is submitted that there is no error in the Court Commissioner’s report. 11. Further, it is submitted that if there is any encroachment in the suit schedule item Nos.6 and 9 properties, then both the plaintiffs and defendants will work out their remedy in other proceedings and just 2LAWS (KAR)-2016-7-136 - 9 - HC-KAR CNR: KAHC010216312026 NC: 2026:KHC:40479 RFA No. 681 of 2026 because the Court Commissioner has not mentioned this encroachment in the report does not extinguish the rights of the parties. Hence, prays to accept the report of the Taluka Surveyor/Court Commissioner by reserving liberty to both the plaintiffs and defendants to claim the encroached portion by third parties and only on this ground, the report of the Taluka Surveyor/Court Commissioner cannot be set aside, as it is once again making allegations against the plaintiffs, which prejudices the rights of plaintiffs, as they have been litigating for more than two decades; hence, it is submitted that there is no error found in the Court Commissioner’s report. Therefore, prays to dismiss the appeal. 12. After hearing the arguments of learned Senior Counsel, Sri. G. Papireddy, appearing on behalf of the appellants and the learned counsel appearing on behalf of the respondents and upon perusal of the documents - 10 - HC-KAR CNR: KAHC010216312026 NC: 2026:KHC:40479 RFA No. 681 of 2026 available at this stage, the following points would arise for my consideration: i. Whether, under the facts and circumstances involved in the case, the Taluka Surveyor/Court Commissioner is of an inferior rank to the Tahasildar insofar as conducting the survey and making the survey report is concerned, as per Section 54 of CPC? ii. Whether, under the facts and circumstances involved in the case, liberty can be granted to both the plaintiffs and defendants to claim ownership and possession over the encroached portion encroached upon by third parties in separate proceedings? 13. In the present case, it is the submission of the learned Senior Counsel, Sri. G. Papireddy, appearing on behalf of the appellants that the FDP Court has appointed the Taluka Surveyor as a Court Commissioner and after the report of the Taluka Surveyor, has acted upon the same and passed the order of final decree, which is contrary to Section 54 of CPC. According to his - 11 - HC-KAR CNR: KAHC010216312026 NC: 2026:KHC:40479 RFA No. 681 of 2026 submission, the Taluka Surveyor is not equivalent to the rank of Tahasildar and is inferior rank to the Tahasildar, which is prohibited under Section 54 of CPC for effecting the partition by metes and bounds and divisions. When this argument is considered, the learned Senior Counsel is unable to answer the question as to in what way and how the Taluka Surveyor is to be categorized as being of an inferior rank to the Tahasildar in the Taluka. Both the Tahasildar and Taluka Surveyor are Taluka-level officers. The Tahasildar is the head of revenue insofar as the Taluka is concerned, whereas the Taluka Surveyor is the head of the Taluka insofar as conducting the survey is concerned. Hence, the Taluka Surveyor, insofar as conducting the survey is concerned, is not inferior rank to the Tahasildar; therefore, whenever the FDP Court orders directing the Taluka Surveyor to submit a report that cannot be categorized as a report made by the Taluka Surveyor being inferior in rank to the Tahasildar. The Taluka Surveyor is an expert in his own domain of - 12 - HC-KAR CNR: KAHC010216312026 NC: 2026:KHC:40479 RFA No. 681 of 2026 conducting the survey work. Therefore, insofar as survey work is concerned, the Taluka Surveyor is not inferior in rank to the Tahasildar. Hence, the FDP Court is correct in appointing the Taluka Surveyor and obtaining the report for making division of properties by passing the order of final decree. 14. So far as the land to the extent 2.5 guntas, which was utilized for the formation of a road by the Gram Panchayath without initiating acquisition proceedings and without awarding compensation is concerned in Sy.No.31/2A (2C and 2E) (old Sy.No.31/2) out of 25 guntas, both the plaintiffs and defendants are at liberty to initiate necessary legal proceedings for claiming compensation. The Gram Panchayath might have utilized the said 2.5 guntas of land for the formation of the road and if it is not shown in the survey records and therefore, the Taluka Surveyor has not mentioned the same in his report, that cannot be said that the report submitted by - 13 - HC-KAR CNR: KAHC010216312026 NC: 2026:KHC:40479 RFA No. 681 of 2026 the Taluka Surveyor is not correct, but according to the submission made by the learned counsel appearing on behalf of the respondents/plaintiffs, which is also not disputed by the counsel appearing on behalf of the appellants/defendants, the said 2.5 guntas of land was utilized for the formation of a road without giving any compensation, then both the parties are at liberty to make a claim for compensation over the utilization of the said 2.5 guntas of land for the formation of the road. 15. Further, it is submitted that 5 guntas of land out of the total extent of 30 guntas of land in Sy.No.36/3A (old Sy.No.36/3), which is suit schedule item No.9 property was encroached upon; then non-mentioning of the same by the Taluka Surveyor cannot be said to make the report is illegal. The Taluka Surveyor is not supposed to record the encroachment while making the division of properties in FDP proceedings, because if such encroachment is reported, then that would prejudice the - 14 - HC-KAR CNR: KAHC010216312026 NC: 2026:KHC:40479 RFA No. 681 of 2026 third parties, who are stated to be in possession of the property and therefore, the Taluka Surveyor is not the competent authority to speak regarding encroachment in final decree proceedings. Just because the encroached portion is not shown in the report or in the sketch, that does not extinguish the rights of the appellants/defendants to make a claim over the said encroached portion. Just because non-mentioning of encroached area in the report and in the sketch, it cannot be said that the report of the Taluka Surveyor is not correct; therefore, liberty is reserved to both the parties to make a claim over the said 5 guntas of land for establishing the title and possession over the suit schedule properties. If such recourse is taken by either of the parties, then the other party shall co- operate with the other party for claiming their property, if their property is encroached. 16. Hence, upon considering the order of the FDP Court, which is based on the Taluka Surveyor’s report and - 15 - HC-KAR CNR: KAHC010216312026 NC: 2026:KHC:40479 RFA No. 681 of 2026 Portion ‘A’ property is allotted to the respondents/plaintiffs and Portion ‘B’ property is allotted to the appellants/defendants as per the Taluka Surveyor’s report. 17. During the course of the arguments, both the plaintiffs and defendants have submitted that they have agreed for the interchange of properties insofar as suit schedule item No.5 property is concerned. Hence, Portion ‘B’ property is allotted to the respondents/plaintiffs and Portion ‘A’ property is allotted to the appellants/defendants in suit item No.5 property in the plaint. Therefore, in this regard, the order passed for the final decree is modified by interchanging these properties. Hence, the FDP Court is directed to draw final decree as per this modified order. 18. So far as the other observations are concerned, there is no need to make any interference. Accordingly, I answer point No.(i) in the Negative and point No.(ii) in the Affirmative. Therefore, the appeal is liable to be disposed of. - 16 - HC-KAR CNR: KAHC010216312026 NC: 2026:KHC:40479 RFA No. 681 of 2026 19. Accordingly, the appeal is disposed of in terms of the above. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE SRA List No.: 1 Sl No.: 31