Karnataka High Court
Shri. Ganesh Vishnu Hegde vs Bhavani Dattatreya Hegde on 5 November, 2024
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NC: 2024:KHC-D:16148
RSA No. 101274 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 101274 OF 2022 (PAR/POS)
BETWEEN:
SHRI GANESH VISHNU HEGDE
AGE: ABOUT 26 YEARS, OCC. AGRICULTURE,
R/O. AT PRESENT NEAR LAXMINARAYANA TEMPLE,
HEAND LAND SADA, VASCO, SOUTH GOA, GOA.
PERMANENT R/O. ACHAVE OF ANKOLA,
TQ. NORTH KANNADA.
... APPELLANT
(BY SRI. SURESH P HUDEDAGADDI, ADVOCATE)
AND:
1. BHAVANI DATTATREYA HEGDE
AGE: ABOUT 75 YEARS, OCC. HOUSEHOLD WORK,
R/O. ACHAVE OF ANKOLA, TQ. NORTH KANNADA.
Digitally
signed by
2. SMT. LEELAVATHI W/O. VISHNU HEGDE,
VISHAL
VISHAL
NINGAPPA
NINGAPPA PATTIHAL
AGE. ABOUT 50 YEARS, OCC. AGRICULTURIST,
PATTIHAL Date:
2024.11.12
11:25:39
+0530
R/O. ACHAVE OF ANKOLA, TQ. NORTH KANNADA.
... RESPONDENTS
(BY SRI. DINESH M KULKARNI, ADVOCATE FOR R1;
R2-NOTICE SERVED)
THIS RSA IS FILED U/S.100 OF CPC., PRAYING TO ALLOW
THE APPEAL AND SET ASIDE JUDGMENT AND DECREE DATED
10.11.2021 PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC
ANKOLA IN FDP NO.19/2015 AND IN RA NO.1/2022 PASSED BY
THE SENIOR CIVIL JUDGE ANKOLA DATED 28.07.2022 AND
DISMISSED THE FDP PROCEEDINGS IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC-D:16148
RSA No. 101274 of 2022
ORAL JUDGMENT
(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA)
1. Against the drawing up of final decree confirmed
in the regular appeal, respondent No.2/defendant No.2 is
before this Court, in this Regular Second Appeal.
2. The parties herein are referred to as plaintiff and
defendants, for the sake of convenience.
3. Plaintiff instituted suit for partition and separate
possession seeking 1/3rd share in the suit property. The said
suit came to be decreed granting 1/3rd share confirmed in in
appeal R.A. No.36/2012.
4. The plaintiff initiated final decree proceedings,
seeking direction to the Tahsildar to divide and demarcate
the properties fallen to the shares of the parties and put
them in possession. The final decree Court in FDP
No.19/2015 appointed the Tahsildar as Court Commissioner
to effect partition in terms of the preliminary decree. The
ADLR, Ankola submitted the report, respondent
No.2/appellant herein filed objection to the Commissioner's
report stating that the survey conducted was not in his
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presence and the watap-takta was prepared in the absence
of respondent No.2, further only dry lands were allotted to
respondent No.1. The report of the Commissioner was
submitted on 10.07.2020, the final decree Court on going
through the watap-takta and the Commissioner's report
submitted by the ADLR, accepted and held that respondent
No.2/appellant herein had failed to establish that irrigated
land has been allotted to the petitioner/plaintiff and dry
land has been allotted to the respondents, by the final order
directed the final decree to be drawn on the basis of the
Commissioner's report. Appellant herein filed appeal, the
grievance of the appellant before the First Appellate Court
was that the Taluka Surveyor cannot be appointed to carry
out the Commission Work under Section 54 the Code of
Civil Procedure, 1908 (for short "CPC") and as per Section
54 CPC, it has to be done by a revenue officer not below
the rank of Tahsildar. The First Appellate court while re-
appreciating the entire oral and documentary evidence
affirmed the final decree passed. Aggrieved, respondent
No.2 is before this Court in this Regular Second Appeal.
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5. Learned counsel for the appellant submits that
the trial Court appointed the Tahsildar as a Court
Commissioner and in turn the Tahsildar has sent the papers
to the ADLR, which is impermissible as per Section 54 CPC
and accepting the report of the Commissioner filed by the
ADLR, is not in accordance with Section 54 CPC. In support
of his contention, learned counsel places reliance on the
decision of this Court in the case of Sanga Reddy Vs. Smt.
Basamma and Others1(Sanga Reddy).
6. Per contra, learned counsel appearing
respondents drawing the attention of this Court to the
provision of Karnataka Land Revenue Act 1964 submits
(herein after referred to as 'the Act' for short) that the
ADLR holds the rank equivalent to that of the Tahsildar, the
trial Court in light of Section 54 CPC has secured the report
of Revenue Officer (ADLR), who is not below the rank of the
Tahsildar.
7. This Court has carefully considered the rival
contentions urged by the learned counsel appearing for the
parties and perused the materials available on record.
ILR 2004 KAR 3664
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8. The question that falls for consideration is
whether the trial Court was justified in accepting the
Commissioner's report submitted by the ADLR is in
accordance with 54 CPC?
9. Section 54 CPC 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 shall be made by the
Collector or any gazetted subordinate of the Collector
deputed by him in this behalf, in accordance with the
law (if any) for the time being in force relating to the
partition, or the separate possession of shares, of
such estates."
10. Section 54 CPC envisages that primary duty is of
the Court to partition the estate and cause separation of
share, and if necessary, the Court can appoint a Revenue
Officer not below the rank of Tahsildar as a Commissioner
and seek report. In the instant case, the trial Court / FDP
Court appointed the Tahsildar as Court Commissioner to
effect partition in terms of the preliminary decree. The
Tahsildar delegated the power to survey the suit property
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and submit his report, the commission work was carried out
by the ADLR, the Tahsildar who is the head of revenue taluk
has obtained the assistance of the surveyor (ADLR) and as
per Sections 11, 12 and 18 of the Act, the ADLR and the
Tahsildar are of the same and equivalent rank thus the
report submitted by the ADLR , which is accepted by the
trial Court cannot be said contrary to the Section 54 CPC.
The decision placed by the learned counsel for the appellant
in the case of Sanga Reddy stated supra, is distinguishable
as in the said facts the partition was ordered through Court
commissioner. In the instant case, the trial Court has felt it
necessary to secure the report of a Revenue Officer and
appointed the Tahsildar as a Court Commissioner, and the
ADLR who submitted the report is not below the rank of
Tahsildar and hence under these circumstance this Court is
of the considered view that the order passed by the trial
Court is in terms of Section 54 CPC and there is no error or
illegality committed by the Courts below warranting any
interferences by this Court and this Court pass the
following:
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ORDER
(i) The Regular Second Appeal is hereby
dismissed.
(ii) The judgment and decree of the Courts below
stands confirmed.
Sd/-
(JUSTICE K.S. HEMALEKHA)
VNP / CT: PA
