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2026 DAILYLAW 35351 (KAR)

THIMMAPPA GOWDA v. SMT LAXMI

WP/23130/2021 · 2026-07-30

Vijaykumar A Patil

body2026

Judgment text

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- 1 - HC-KAR CNR: KAHC010470862021 NC: 2026:KHC:39922 WP No. 23130 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 23130 OF 2021 (GM-CPC) BETWEEN: 1. THIMMAPPA GOWDA S/O PADMAYYA GOWDA AGED ABOUT 64 YEARS R/AT KAMAPADAKODI HOUSE ANANTHADY VILLAGE AND POST BANTWAL TALUK D.K.DISTRICT - 574 253. 2. BABU GOWDA S/O PADMAYYA GOWDA AGED ABOUT 62 YEARS PRESENTLY RESIDING AT 1-102 SHRINILAYA HOUSE NETLAMUDNOORU VILLAGE NERALAKTTE POST VIA MANI BANTWAL TALUK D.K.DISTRICT - 574 253. 3. JAGADISH GOWDA S/O LATE PADMAYYA GOWDA AGED ABOUT 56 YEARS R/AT KAMPADAKODI HOUSE ANANTHADY VILLAGE AND POST BANTWAL TALUK D.K.DISTRICT - 574 253. …PETITIONERS (BY SRI RAVISHANKAR SHASTRY G., ADVOCATE) Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR CNR: KAHC010470862021 NC: 2026:KHC:39922 WP No. 23130 of 2021 AND: 1. SMT. LAXMI W/O DEVAPPA GOWDA AGED ABOUT 56 YEARS RESIDING AT SIRNILAYA KONGALAI HOUSE ANANTHADY VILLAGE AND POST BANTWAL TALUK D.K.DISTRICT - 574 253. 2. SANTHOSHI LAXMI D/O DEVAPPA GOWDA AGED ABOUT 34 YEARS R/AT SRINILAYA KONGALAI HOUSE ANANTHADY VILLAGE AND POST BANTWAL TALUK D.K DISTRICT - 574 253. 3. SANTHOSHI DEVA S/O DEVAPPA GOWDA AGED ABOUT 32 YEARS R/AT SRINILAYA KONGALAI HOUSE ANANTHADY VILLAGE AND POST BANTWAL TALUK D.K DISTRICT - 574 253. 4. NAYANASHREE D/O DEVAPPA GOWDA AGED ABOUT 29 YEARS R/AT SRINILAYA KONGALAI HOUSE ANANTHADY VILLAGE AND POST BANTWAL TALUK D.K DISTRICT - 574 253. 5. RUKMINI W/O HONNAPPA GOWDA AGED ABOUT 78 YEARS R/AT HREBANDADI VILLAGE VIA UPPINANGADY - 3 - HC-KAR CNR: KAHC010470862021 NC: 2026:KHC:39922 WP No. 23130 of 2021 PUTTUR TALUK D.K.DISTRICT - 574 241. 6. SMT. NEELAMMA W/O NARAYANA GOWDA MAISTRY AGED ABOUT 70 YEARS R/AT SURVEY HOSAMANE SARVE PUTTUR TALUK D.K.DISTRICT - 574 202. 7. KUSUMAVATHI W/O KOGGANNA GOWDA AGED ABOUT 67 YEARS R/AT KONGALAI HOUSE ANATHADY VILLAGE BANTWAL TALUK D.K.DISTRICT - 574 253. 8. ASHALATHA D/O KOGGANNA GOWDA AGED ABOUT 47 YEARS R/AT KONGALAI HOUSE ANANTHADY VILLAGE BANTWAL TALUK D.K DISTRICT - 574 253. 9. PUSHPARAJ S/O KOGGANNA GOWDA AGED ABOUT 45 YEARS R/AT KONGALAI HOUSE ANANTHADY VILLAGE BANTWAL TALUK D.K DISTRICT - 574 253. 10. DEVADAS S/O KOGGANNA GOWDA AGED ABOUT 43 YEARS R/AT KONGALAI HOUSE ANANTHADY VILLAGE - 4 - HC-KAR CNR: KAHC010470862021 NC: 2026:KHC:39922 WP No. 23130 of 2021 BANTWAL TALUK D.K DISTRICT - 574 253. 11. PRASHANTH S/O KOGGANNA GOWDA AGED ABOUT 42 YEARS R/AT KONGALAI HOUSE ANANTHADY VILLAGE BANTWAL TALUK D.K DISTRICT - 574 253. 12. SHRIKANTH S/O KOGGANNA GOWDA AGED ABOUT 39 YEARS R/AT KONGALAI HOUSE ANANTHADY VILLAGE BANTWAL TALUK D.K DISTRICT - 574 253. …RESPONDENTS (BY SRI HARISH N.R., ADVOCATE FOR R1 TO R4; V/O DATED 18.11.2022 PETITION AGAINST R5 ABATED; R6 TO R12 - SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 11.11.2021 ON I.A.NO.IV IN FDP NO.22/2013 PASSED BY THE PRL. CIVIL JUDGE AND JMFC BANTWAL CERTIFIED COPY OF WHICH IS PRODUCED AT ANNEXURE-A AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 5 - HC-KAR CNR: KAHC010470862021 NC: 2026:KHC:39922 WP No. 23130 of 2021 CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This writ petition is filed challenging the order dated 11.11.2021 passed on I.A.No.4 in FDP No.22/2013 on the file of the Principal Civil Judge and JMFC, Bantwal (for short, 'the FDP Court'). 2. Heard Sri.G.Ravishankar Shastry, learned counsel for the petitioners and Sri.Harish N.R., learned counsel for respondent Nos.1 to 4 and perused the material available on record. 3. The respondent Nos.1 to 4 have initiated the final decree proceedings in FDP No.9/1995 seeking allotment of share as per the preliminary decree passed in O.S.No.159/1982. In the said proceedings, the Court Commissioner was appointed, he submitted the report. The final decree was drawn, the possession was handed over to the respective sharers on 19.08.2013. The respondent Nos.1 to 4 have filed FDP No.22/2013 for the - 6 - HC-KAR CNR: KAHC010470862021 NC: 2026:KHC:39922 WP No. 23130 of 2021 relief of mesne profits. In the said proceedings, the petitioners therein - respondent Nos.1 to 4 herein have filed an application under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short, 'the CPC') seeking to appoint a Commissioner to assess the income of the property. The said application was opposed by the petitioners herein. The FDP Court under the impugned order allowed the application. 4. The primary contention of the petitioners is that in the earlier FDP proceedings two reports are available, which were dated 10.02.1997 and 27.09.1997, which indicate the income and there is no necessity to appoint another Commissioner. It is also contended that the possession is handed over in the year 2013 and if the Court Commissioner is now appointed to find out the income and improvements, the Court Commissioner would not be able to give correct report with regard to the improvements taken place prior to handing over of the possession as all the improvements are after the delivery - 7 - HC-KAR CNR: KAHC010470862021 NC: 2026:KHC:39922 WP No. 23130 of 2021 of possession. It is required to be noticed that in a preliminary decree the FDP Court has allotted the respective shares to the parties and ordered that in respect of mesne profits, it is open for the parties to work out the same in the final decree proceedings. Admittedly, FDP No.9/1995 was closed on delivery of possession of respective shares as per the preliminary decree and later the respondent Nos.1 to 4 have filed the FDP No.22/2013 seeking for mesne profits. 5. It is not in dispute that there is a delay in filing the FDP proceedings and it would be difficult for the Court Commissioner to find out the exact improvements and income prior to 19.08.2013 which was the date of handing over the possession to the respective parties. Hence, I am of the view that it is always open for the petitioners to oppose the said report on the aforesaid grounds. It is to be noticed that unless the report is placed before the FDP Court it would be difficult for the FDP Court to determine - 8 - HC-KAR CNR: KAHC010470862021 NC: 2026:KHC:39922 WP No. 23130 of 2021 the mesne profits. The petitioners can always point out the earlier two reports in the said present FDP proceedings to substantiate their contention. 6. Merely because there were earlier two reports in the FDP No.9/1995 and there is a delay in filing an application cannot be a ground to reject the application for appointment of Commissioner to assess the income and improvements over the property. The FDP Court, considering all the aspects, by a well-reasoned order, proceeded to appoint official of the Horticulture Department as Court Commissioner. I do not find any error in the impugned order calling for interference in this petition. The petition is devoid of merits, hence, the same is rejected. No order as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR/List No.: 1 Sl No.: 32