Karnataka High Court
Sri Kakkoregol Rudrappa S/O Kakkoregol ... vs Smt Shantamma on 3 September, 2025
-1-
NC: 2025:KHC-D:11248
WP No. 105118 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 3RD DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
WRIT PETITION NO. 105118 OF 2022 (GM-CPC)
BETWEEN:
SRI. KAKKOREGOL RUDRAPPA
S/O. KAKKOREGOL MOOGAPPA.
AGE: 54 YEARS, OCC. AGRICULTURE,
R/O. HIREKURUVATHI VILLAGE,
TQ. HUVINAHADAGALI, DIST. BALLARI.
...PETITIONER
(BY SRI. SHARAD V. MAGADUM, ADVOCATE)
AND:
1. SMT. SHANTAMMA W/O. SOMAPPA SINECURE,
AGE: 79 YEARS, OCC. HOUSEHOLD WORK,
R/O. HIREKURUVATHI VILLAGE,
TQ. HUVINHADAGALI,
DIST. BALLARI-583219.
2. P BASAVARAJAPPA S/O. SOMAPPA,
MOHANKUMAR
B SHELAR AGE: 67 YEARS, OCC. AGRICUTLURE,
R/O. HIREKURUVATHI VILLAGE,
Digitally signed by
MOHANKUMAR B
TQ. HUVINHADAGALI, DIST. BALLARI-583219
SHELAR
Date: 2025.09.06
...RESPONDENTS
12:17:00 +0530 (BY SRI. SATISH M.S., ADVOCATE FOR R1; R2-NOTICE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT IN THE
NATURE OF CERTIORARI AND QUASH THE IMPUGNED ORDER DATED
21/10/2022 PASSED IN FDP NO.3/2018 BY THE SR.CIVIL JUDGE
HOOVINHADAGALI VIDE ANNEXURE-G AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
-2-
NC: 2025:KHC-D:11248
WP No. 105118 of 2022
HC-KAR
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)
1. The petitioner is aggrieved by the order dated
21.10.2022 passed in F.D.P.No.3/2018 by the learned
Senior Civil Judge, Huvinahadagali, vide Annexure-G.
2. The brief facts leading to the filing of this petition are as
follows:
2.1. Respondent No.1 filed a suit for partition, separate
possession, and mandatory injunction against the
petitioner and Respondent No.2 in
O.S.No.192/2007. The said suit was decreed, and
it was held that Respondent No.1 is entitled to half
share in 6 acres of land out of 8 acres of the suit
property in Survey No.54 at Kuruvathi Village, vide
judgment and preliminary decree dated
15.12.2009.
2.2. Respondent No.1 then initiated a final decree
proceedings in F.D.P.No.3/2018. The petitioner
filed a second appeal in R.S.A.No.100071/2014.
NC: 2025:KHC-D:11248
HC-KAR
The FDP Court appointed a Court Commissioner to
demarcate the property for division. The Court
Commissioner submitted a report on 22.07.2015.
In the meanwhile, the second appeal in
R.S.A.No.100071/2014 came to be dismissed by
this Court vide order dated 04.07.2022.
2.3. The petitioner filed the objections to the alleged
report submitted by the Court Commissioner. The
Trial Court recorded the evidence of the Court
Commissioner and observed that the report
submitted by the Court Commissioner was
incomplete. It is noted that the Commissioner had
not filed a detailed report and thus directed him to
furnish a detailed report vide order dated
21.10.2022.
2.4. Aggrieved by the order dated 21.10.2022, the
petitioner filed this writ petition.
NC: 2025:KHC-D:11248
HC-KAR
3. Heard the arguments of learned counsel for the
petitioner and respondent No.1.
4. Learned counsel for the petitioner submitted that the
Court Commissioner had not submitted a detailed
report, and the Trial Court, after recording its finding,
directed the Court Commissioner to furnish a detailed
report by perusing the documents marked as Exhibits
C1 to C12. He submits that, when the Trial Court has
recorded a finding that the report submitted by the
Court Commissioner is incomplete, the Trial Court
ought to have directed the Court Commissioner to
inspect the suit schedule property and then submit a
detailed report. On the contrary, the Trial Court
directed the Commissioner to submit a detailed report
without re-inspecting or visiting the suit schedule
property. Hence, on this ground, the petitioner prays
that the petition be allowed and the Court
Commissioner be directed to re-inspect the suit
schedule property and submit a report in compliance
NC: 2025:KHC-D:11248
HC-KAR
with the preliminary decree. Further, it is submitted
that, in the preliminary decree it is shown that 2 acres
of the property had been sold, whereas the
Commissioner's report states only 1 acre and 91 cents.
Therefore, the report is not in conformity with the
preliminary decree. On this ground also, the petitioner
prays that the writ petition be allowed.
5. Per contra, learned counsel for Respondent No.1
supported the impugned order. He submits that, though
the Court Commissioner had submitted a report, the
Trial Court had directed the Commissioner to file a
detailed report. Hence he submits that he raised
several other grounds that are not relevant for deciding
this writ petition with regard to measurement and
extent of the land and prays for the dismissal of the
petition.
6. Perused the records and considered the submissions of
learned counsel for the parties.
NC: 2025:KHC-D:11248
HC-KAR
7. There is no dispute that Respondent No.1 filed a suit for
partition, separate possession, and mandatory
injunction in O.S.No.192/2007. The judgment passed
in O.S.No.192/2007 was challenged in R.A.No.7/2010
before the III Additional District and Sessions Judge,
Ballari, sitting at Hosapete. The said appeal was
dismissed vide judgment dated 06.12.2013. The
judgment and preliminary decree passed in
O.S.No.192/2007 and R.A.No.7/2010 were challenged
in second appeal in R.S.A.No.100071/2014 before this
Court.
8. During the pendency of the appeal, FDP proceedings
were initiated by Respondent No.1 in F.D.P.No.3/2018.
The FDP Court appointed a Court Commissioner to
demarcate and bifurcate the properties as per the
preliminary decree. The Court Commissioner submitted
a report to the FDP Court. The petitioner filed
objections to the Commissioner's report. Thereafter,
the Court Commissioner was examined as CW1. During
NC: 2025:KHC-D:11248
HC-KAR
the cross-examination, he admitted that he had not
submitted a detailed report to the Court, but conceded
that he had visited the petition schedule property in
order to conduct a survey in accordance with the
preliminary decree. He also admitted that he had
produced the documents related to the petition
schedule property and its division as per the
preliminary decree.
9. The FDP Court directed the Court Commissioner to
furnish a detailed report only on the ground that the
matter was an old one. However, when the Trial Court
found that the Court Commissioner had not submitted a
detailed report, it ought to have directed the
Commissioner to survey the property afresh and submit
a report. On the contrary, the Trial Court only directed
the Commissioner to furnish a detailed report. Further,
the alleged report submitted by the Court
Commissioner is not in conformity with the preliminary
decree passed in O.S.No.192/2007. This aspect was not
NC: 2025:KHC-D:11248
HC-KAR
properly considered by the Trial Court, and it
committed an error in passing the impugned order.
Hence, the impugned order passed by the Trial Court is
arbitrary and erroneous, and the same is liable to be
set aside.
10. In view of the above discussion, I pass the following:
ORDER
i. The writ petition is allowed.
ii. Impugned order dated 21.10.2022 passed in FDP
No.3/2018 by the Senior Civil Judge,
Hoovinhadagali, is set aside.
iii. The Court Commissioner is directed to re-survey
the land and furnish a detailed report to the Trial
Court within a period of two months from the
date of receipt of a copy of this order.
Sd/-
(ASHOK S. KINAGI)
JUDGE
gab/CT:PA
