Sri Mari Gowda vs Smt Sharadamma
2023 Latest Caselaw 6900 Kant

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                                                            NC: 2023:KHC:35640
                                                      RSA No. 1758 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 3RD DAY OF OCTOBER, 2023

                                           BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO.1758 OF 2022 (PAR)

                   BETWEEN:

                   1.    SRI MARI GOWDA
                         S/O LATE LAKKE GOWDA
                         AGED ABOUT 68 YEARS
                         R/O MARLE HOSAHALLI,
                         MARLE POST, AMBLE HOBLI
                         CHIKKAMAGALURU-577101.
                                                                ...APPELLANT
                             (BY SRI GIRISH B. BALADARE, ADVOCATE)
                   AND:

                   1.    SMT. SHARADAMMA
                         D/O LATE LAKKE GOWDA
                         AGED ABOUT 70 YEARS

                   2.    LAKKE GOWDA
Digitally signed
by SHARANYA T            S/O LATE LAKE GOWDA
Location: HIGH           AGED ABOUT 82 YEARS
COURT OF
KARNATAKA
                         BOTH ARE R/O. MARLE POST
                         AMBLE HOBLI,
                         CHIKKAMAGALURU DISTRICT-577 101.
                                                               ...RESPONDENTS

                          THIS RSA IS FILED UNDER SECTION 100 OF CPC,
                   AGAINST THE JUDGMENT AND DECREE DATED 08.09.2022
                   PASSED IN R.A.NO.52/2022 ON THE FILE OF THE PRINCIPAL
                   JUDGE, (DISTRICT AND SESSIONS JUDGE) FAMILY COURT,
                   CHIKKAMAGALURU,     DISMISSING      THE      APPEAL    AND
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                                               NC: 2023:KHC:35640
                                             RSA No. 1758 of 2022




CONFIRMING THE JUDGMENT AND DECREE DATED 27.11.2019
PASSED IN FDP NO.2/2017        ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND CJM, CHIKKAMAGALURU, ALLOWING
THE PETITION FILED UNDER SECTION 54 R/W ORDER 21 RULE
35 OF CPC.


      THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                           JUDGMENT

This matter is listed for admission.

I have heard the learned counsel for the appellant.

2. The main contention of the appellant before this

Court that the Commissioner himself has allotted the property

and fertile land was allotted in favour of the plaintiffs and it is

only the job of the Commissioner to demarcate the property

and submit the report and the Court has to allot the share. The

counsel also vehemently contend that the report filed by the

Court Commissioner is opposed to the true facts. The Court

Commissioner has not visited the land and prepared the said

report, and prepared the report in the office itself and as such

material facts are absent in the said report. The report is

contrary to the direction of the Court and Trial Court failed to

NC: 2023:KHC:35640 RSA No. 1758 of 2022

appreciate that the Court Commissioner has not mentioned the

nature of soil, its fertility and other features of land so as to

equal distribution of land as per decree.

3. The counsel in support of his argument relied upon

the judgment in the case of SANGA REDDY Vs. SMT.BASAMMA

AND OTHERS reported in ILR 2004 KAR 3664. The counsel

would vehemently contend that the partition shall be made only

by the Court and not by Revenue Officer or Court

Commissioner. The Court, if necessary, can obtain a report

from a Revenue Officer or Commissioner to enable it to effect

partition. It can effect partition on such a report. The Trial

Court shall effect partition in accordance with Section 54 of the

CPC as amended in Karnataka and hence, the very order

passed by the Trial Court as well as the First Appellate Court is

erroneous.

4. Having heard the appellant's counsel and also on

perusal of material on record and reasons assigned by the Trial

Court in FDP No.2/2017, it is clear that 1/4th share was allotted

in the original suit and in R.A. it was modified as 1/8th share to

plaintiff and defendant No.1 is entitled for 3/8th share and

NC: 2023:KHC:35640 RSA No. 1758 of 2022

defendant No.2 is entitled for 4/8th share. The Trial Court also

taken note of the report of the Court Commissioner which

reveals that prior to the visit, registered notice was sent to both

parties. The postal receipts are also produced. It is also

observed that defendants were not present at the time of

measurement, for the reasons best known to them. From the

beginning they resisted to give the share of the plaintiffs. For

their absence, petitioner cannot be punished and the very

contention that Commissioner did not visit the spot and the

same is not accepted and without visiting the spot, the

Commissioner cannot prepare the said report. The First

Appellate Court also on re-appreciation of the material available

on record, when the ground has been urged before the

appellate Court that same is not under Section 54 of CPC, taken

note of the fact that, Court has called for proposal from the

Commissioner and then perused it and accepted the same and

effecting of partition of the schedule properties was not

entrusted to the Commissioner as contended by the counsel

and also considering the objections raised before the Trial Court

to the Commissioner's report and comes to the conclusion that

it is only a omnibus allegations are made and it is not

NC: 2023:KHC:35640 RSA No. 1758 of 2022

specifically stated which land is not properly demarcated and

how it should have been demarcated and mere questioning the

report is not sufficient.

5. Having considered the grounds urged by the

appellant's counsel before this Court on perusal of the

objections statement filed by the appellant before the Trial

Court, the only contention raised before the Trial Court with

regard to the Commissioner's report is that, the Commissioner

has not visited the spot and the fact that when the notice was

given to him to appear for inspection, the very appellant did

not appear before the Commissioner when the date is fixed and

also having perused the objections, except stating that

Commissioner did not visit the spot and inspected the property,

no other ground is urged with regard to the fertility of the

property and with regard to the demarcation of the property is

also concerned and inspite of notice given to him, he did not

appear before the Commissioner and also participated in the

inspection and now raised the issue before the Court that

Commissioner had not mentioned the nature of soil, its fertility

and other features of land, so as to have equal distribution of

land as per decree.

NC: 2023:KHC:35640 RSA No. 1758 of 2022

6. The other contention that the Court Commissioner

himself had allotted the shares of the parties, the Court.

Commissioner instead of submitting the feasible report acted

without jurisdiction and the said contention also cannot be

accepted and the Trial Court having considered the report and

sketch prepared by the Commissioner, taken note of the same

and bifurcation also taken note of the same and First Appellate

Court in paragraph No.12 considered the grounds urged by the

appellant and the appellant did not raise the ground which now

argued before the Court with regard to fertility and now

contend that only fertile land is allotted in favour of the

plaintiffs and when he did not appear and assist the

Commissioner while drawing mahazar and surveying the land,

cannot contend that the fertile land is allotted in favour of the

appellant with regard to such ground also nothing is stated in

the objection statement and the very conduct of the appellant

is nothing but, even in respect of there is a decree and final

decree and also the grounds urged before the Appellate Court

is not satisfied with the order passed by the Trial Court and it

clearly shows that the appellant is not having any intention to

give the share in favour of the respondent/plaintiff coming in

NC: 2023:KHC:35640 RSA No. 1758 of 2022

the way of bifurcating the property, unnecessarily raising the

objections in the objection statement that the Commissioner

did not visit the spot and without visiting the spot cannot draw

the sketch and without surveying the property he cannot

demarcate the property by sitting in the office as contended in

the objection statement and hence, I do not find any ground to

set aside the order passed by the Trial Court and also the First

Appellate Court and the judgment which has been relied upon

by the counsel appearing for the appellant is not comes to the

aid of the appellant when he himself did not participate in the

survey proceedings when the Commissioner was appointed and

notice was given to him and without participating in the survey

of the land and demarcating the land has raised objection that

fertile land is allotted to plaintiffs and the very conduct of the

appellant is clearly goes to show that he inclined to give any

share in favour of the plaintiffs/respondents. Hence, no merit in

the second appeal and admit and frame any substantial

question of law.

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7. In view of the discussions made above, I pass the

following:

ORDER

Second appeal is dismissed.

Sd/-

JUDGE

AP