Karnataka High Court
Sri Suresha vs Sri N C Venkatesh on 24 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 732 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.732 OF 2024 (PAR)
BETWEEN:
1. SRI. SURESHA
S/O LATE PUTTAMADAIAH @ JOHN
AGED ABOUT 63 YEARS
2. SRI. VISHWANATH
S/O LATE PUTTAMADAIAH @ JOHN
AGED ABOUT 61 YEARS
3. M. USHA
W/O LATE RAVI KUMAR
AGED ABOUT 57 YEARS
4. R. HARINI
D/O LATE RAVI KUMAR
Digitally signed AGED ABOUT 28 YEARS
by DEVIKA M
Location: HIGH 5. R. HARSHINI
COURT OF D/O LATE RAVI KUMAR
KARNATAKA
AGED ABOUT 20 YEARS
ALL ARE R/AT NO.3719
DR. AMBEDKAR ROAD
SREEKANTAPURI BADAVANE
NANJANGUD TOWN
MYSURU DISTRICT-571 301.
...APPELLANTS
(BY SRI. D.T.NANJESH GOWDA, ADVOCATE)
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RSA No. 732 of 2024
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AND:
1. SRI. N.C. VENKATESH
S/O CHELUVAIAH
AGED ABOUT 64 YEARS
2. SRI. N.C. NARASIMHAMURTHY
S/O CHELUVAIAH
AGED ABOUT 55 YEARS
BOTH ARE R/AT SRIRAMPURA
2ND CROSS, NANJANGUD TOWN
MYSURU DISTRICT-571 301.
3. SRI. M.S. YOGESH
S/O LATE SHAMBULINGAPPA
AGED ABOUT 70 YEARS
R/AT NO.3064, "SHIVADHAMA"
NEAR CHENNAPPA LAYOUT
DEVIRAMMANAHLLI
NANJANGUD TOWN
MYSURU DISTRICT-571 301.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 30.01.2024
PASSED IN R.A.NO.147/2022 ON THE FILE OF THE V
ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE
APPEAL AND CONFIRMING THE ORDER DATED 07.04.2022
PASSED IN FDP.NO.24/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE, NANJANGUD.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 732 of 2024
HC-KAR
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission and I have heard
learned counsel for the appellants.
2. This second appeal is filed against the concurrent
finding of the Trial Court.
3. The factual matrix of case of the plaintiffs while
seeking the relief of partition and separate possession is that
the Trial Court granted the relief in respect of item Nos.1 to 3
and 6 and 7 and dismissed the suit in respect of item Nos.4 and
5 while passing the in FDP No.24/2014. The same was
challenged before the First Appellate Court in R.A.No.111/2020.
The First Appellate Court having considered the material on
record, remanded the same by setting aside the order passed
in FDP vide order dated 02.12.2019, wherein a direction was
given to appoint an Engineer to effect partition of item Nos.1, 4
to 7 of the schedule property.
4. The Trial Court having considered the order passed
by the First Appellate Court, reconsidered the material in FDP
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No.24/2014 and vide order dated 30.01.2024, having
considered the order passed in R.A.No.111/2020, taken note of
dismissal of earlier suit in respect of item Nos.4 and 5 and
found some error in passing the order in R.A.No.111/2020 in
respect of item Nos.4 and 5 and clarified that decree has been
drawn only in respect of item Nos.1, 6 and 7 of the schedule
property which has been discussed in paragraph Nos.19 to 23
and detailed order was passed to effect division by appointing a
commissioner and commissioner report was also considered. As
per the commissioner report, when the schedule No.1 was
being measured for partition, the defendant No.2 and counsel
were present and they have not allowed to measure the said
property. However, the measurement work is completed and
commissioner report is also taken note of that no cooperation
with regard to measurement of the said partition as per decree
and in detail taking into note of the same in paragraph Nos.31,
32 and 33, an observation is made in paragraph No.33 that it
can be gathered from the material on record, there is no
prejudice or inconvenience caused to the appellants/respondent
Nos.2 to 4, they got their share in the suit schedule property.
The share and the rights of respondent Nos.1 and 2/plaintiffs is
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confirmed by the High Court of Karnataka. As per the
confirmation of the right, the Trial Court has drawn the final
decree and allotted share to the plaintiffs.
5. Having considered the material on record comes to
the conclusion that no ground is made out to set aside the
decree in respect of item No.3 is concerned and the same is not
the subject matter of order dated 07.04.2022 which has
attained its finality vide order dated 02.12.2019. Having
considered the same comes to the conclusion that Trial Court
has properly drawn the decree on appreciating the entire
records. The First Appellate Court also considering the material
on record comes to the conclusion that there is no error on the
part of the Trial Court in considering the material on record,
since the Trial Court has also considered the matter in respect
of the issue for which it was remitted and passed an order and
there was no order in respect of item Nos.2 and 3 and taken
note of the fact that order was only in respect of item Nos.1, 6
and 7 order. Having considered the reasoning of the Trial Court
in FDP and also the First Appellate Court, the present second
appeal is filed before this court.
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6. The main contention of learned counsel appearing
for the appellants before this Court is that both the Courts were
not justified in allowing the FDP when there is no land for
partition in item No.3 of the schedule property which is
classified as 'B' kharab in the revenue records. It is also
contented that when the plaintiffs themselves have filed the
objection to the Commissioner's report in respect of item No.1
of the schedule property where there is no pathway to reach
the share allotted by the Court Commissioner, wherein a public
road constructed on the suit schedule property that is
belonging to Devirammanahalli Village Panchayath and the said
land was converted prior to filing of the suit, the Court ought
not to have passed such an order. The First Appellate Court
also committed an error in re-appreciating the material on
record. Hence, it requires interference of this Court.
7. Having heard learned counsel for the appellants,
the main contention of learned counsel appearing for the
appellants before this Court is in respect of item Nos.2 and 3 is
concerned i.e., even in the earlier order passed in
R.A.No.111/2020, no discussion was made with regard to the
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same. Apart from that, the counsel would vehemently contend
that when the order was set aside by the First Appellate Court
in R.A.No.111/2020, the same is in respect of entire order
passed in FDP and not in respect of item Nos.2 and 3 is
concerned and direction given by the First Appellate Court in
respect of only item Nos.1, 4 to 7 of the suit schedule property
is not correct. The said contention cannot be accepted for the
reason that when such order has been passed, particularly in
respect of item Nos.1, 4 to 7 of the suit schedule property and
the said order has attained its finality and the earlier order
dated 02.12.2019 passed in FDP No.24/2014 was also taken
note of by the Trial Court as well as the First Appellate Court
and nothing is discussed with regard to setting aside the decree
in respect of item Nos.2 and 3 of the suit schedule property.
When such being the case, the very contention of learned
counsel for the appellants cannot be accepted.
8. The other contention that granting share in respect
of item Nos.1, 6 and 7 of suit schedule property is also not
correct cannot be accepted, since as directed by the First
Appellate Court by appointing an Engineer, partition was
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effected in respect of item Nos.1, 6 and 7 and the order was
passed by the Trial Court, wherein the operative portion is very
clear that in continuation of the order dated 02.12.2019,
regarding remaining item properties in the petition schedule
properties which has already attained finality, this order is
passed in respect of item Nos.1, 4 and 5 of properties, which
are respectively suit schedule item Nos.1, 6 and 7 properties
and also taken note of report dated 11.03.2022 filed by the
Court Commissioner, who is a Civil Engineer and the same is
accepted by overruling the objections filed by respondent Nos.2
and 3 and detailed order was passed. The same was
reconsidered by the First Appellate Court while reassessing the
material available on record and taken note of the very
contention of learned counsel and in detail discussed from
paragraph Nos.19 to 33 and comes to the conclusion that when
the earlier order passed in FDP has attained its finality, only
issue is in respect of item Nos.1, 6 and 7, since the very suit is
dismissed in respect of item Nos.4 and 5 and also earlier order
in respect of item Nos.2 and 3 has attained its finality and all
these factors were taken note of, particularly in paragraph Nos.
19 to 23 and in paragraph Nos.25 and 26, discussed the same
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that partition is made only in respect of item Nos.1, 6 and 7
and in paragraph No.26 also taken note that item Nos.1, 6 and
7 are only subject matter of partition and also taken note of the
fact that Commissioner has submitted his report in respect of
item No.1 after the remand order was passed in
R.A.No.111/2020 and as per the commissioner's report itself,
when schedule item No.1 is being measured for partition, the
defendant No.2 and counsel were present and they have not
allowed to measure the said property. However, the
measurement work is completed is also taken note of. Hence, it
is very clear that these appellants have also not co-operated
even after remand also for division of the property. The Trial
Court after remand also taken note that with the assistance of
Engineer as directed by the First Appellate Court partitioned the
property and even in paragraph No.33 of the judgment of First
Appellate Court also, it is very clear that it is a third round of
litigation which has started from 2006. There is no illegality or
impropriety found in the order of the Trial Court again to
reconsider the order of the Trial Court and set aside the same.
It can be gathered from the material on record also there is no
prejudice or inconvenience caused to the appellants/respondent
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Nos.2 to 4, they got their share in the suit schedule property
and considering the material on record dismissed the appeal.
When such being the reasoning given by the Trial Court and the
First Appellate Court while considering the case of the
appellants and the very contention of the learned counsel for
the appellants that no finding with regard to item Nos.2 and 3
of the suit schedule property cannot be accepted which has
already attained its finality and the same is taken note of by
the Trial Court as well as the First Appellate Court and no
ground is made out to invoke Section 100 of CPC.
9. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
