Karnataka High Court
Prithvisingh Narayansingh Raput vs Sunita D/O Tesingh Raput on 8 September, 2025
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MSA No. 100048 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 08TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
MISCELLANEOUS SECOND APPEAL NO. 100048 OF 2017 (RO-)
BETWEEN:
1. SRI. PRITHVISINGH NARAYANSINGH RAJPUT
AGE: 64 YEARS, OCC: LEGAL PRACTITIONER
R/O: 115, HINDWADI, BELAGAVI
TAL & DIST: BELAGAVI-59000.
...APPELLANT
(BY SRI. D. RAVIKUMAR GOKAKAKAR, ADV)
AND:
1. SUNITA D/O TEJSINGH RAJPUT
AGE: 50 YEARS, OCC: LEGAL PRACTITIONER
R/O: B.C.NO.26, FORT BELAGAVI
TAL AND DIST: BELAGAVI.
2. SUCHITA D/O TEJSINGH RAJPUT
AFTER MARRIAGE SUCHITA
W/O AMIT BHINGURDE,
AGE: 48 YEARS, OCC: HOUSE HOLD,
R/O: 201, SHIVALAYA, 4 GREEN PARK,
HOUSING SOCIETY, BANER,
MOHANKUMAR PUNE-411007, MAHARASTRA STATE.
B SHELAR
3. MRS. SHAKUNTALA
Digitally signed by
MOHANKUMAR B W/O DR. JAIKUMARSINGH RAJPUT,
SHELAR
Date: 2025.09.12 AGE: 75 YEARS, OCC: HOUSE HOLD
16:35:37 +0530
R/O: 360, CHALUWAMBA AGRAHAR
MYSYRU-571511.
4. STAR COMPANY
A BUSINESS CONCERN AT
GANAPAT GALLI, BELAGAVI-590001.
...RESPONDENTS
(BY SRI. G.B.NAIK & SMT. P.G.NAIK, ADVS FOR R1 & R2,
NOTICE TO R3 IS SERVED & R4 IS HELD SUFFICIENT)
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MSA No. 100048 of 2017
HC-KAR
THIS MSA IS FILED U/SEC.43 RULE 1(u) OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 08.03.2017 PASSED IN R.A.
NO.175/2015 ON THE FILE OF THE IX ADDL. DISTRICT & SESSIONS
JUDGE, BELAGAVI, ALLOWING THE APPEAL FILED AGAINST THE
JUDGMENT AND DECREE DATED 04.07.2015 PASSED IN FDP
NO.1/1994, ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE,
BELAGAVI, ALLOWING THE PETITION FILED UNDER ORDER 20 RULE
16 AND RULE 18 OF CPC..
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)
1. This Miscellaneous Second Appeal is filed by the
appellant challenging the judgment and decree in R.A.
No.175/2015 dated 08.03.2017, by the learned IX
Additional District and Sessions Judge, Belagavi.
2. For convenience, the parties are referred to
based on their rankings before the FDP Court. The appellant
was the petitioner, and the respondents herein were the
respondents before the FDP court.
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3. Brief facts, leading rise to the filing of this appeal
are as follows:
3.1 The petitioner filed a suit against the respondents
in O.S. No.46/1984 for a partition and separate
possession and for taking accounts. After a full-
fledged trial, the suit was decreed vide Judgment
dated 20.07.1993, holding that the petitioner is
entitled to a 1/3rd share in item No.1 of the 'B'
and 'D' schedule properties, and also a 1/4th share
in item Nos.2 to 4 of the 'B' schedule properties.
The Respondents, aggrieved by the Judgment and
preliminary decree passed in O.S.No.46/1984,
preferred an appeal in RFA No.282/1993 before
this Court. The said appeal was partly allowed,
and the Judgment and preliminary decree passed
in the aforesaid suit was modified. The
Respondents ,aggrieved by the Judgment and
decree passed by this Court in RFA No.282/1993,
preferred a Special Leave Petition before Hon'ble
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Apex Court in SLP No.5011/1997, which came to
be dismissed. The petitioner is not entitled to any
share in item Nos.2 to 4 of the 'B' schedule
properties. The petitioner filed a Final Decree
Proceedings in FDP No.1/1994 on the file of the
learned I Addl. Senior Civil Judge, Belagavi. The
respondents appeared through their counsel, and
filed their common objections, and accordingly,
prays to dismiss the petition.
3.2 The FDP Court appointed two Court
Commissioners to ascertain the share in the
commercial establishment, i.e., respondent No.6-
Company, including profit, etc., and directed to
take the assistance of an expert Engineer and the
chartered accountants. The two Commissioners
submitted a report, which was opposed by
Respondents Nos. 1 and 4. The Court
Commissioners were examined as CW-1 and CW-
2, and no documents were marked.
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3.3 The FDP Court allowed the petition with costs vide
order dated 04.07.2015, and the Commissioners'
report was fully accepted regarding all suit
schedule properties. It was ordered that the
plaintiffs and defendant No.2 shall put in
possession of their respective portions shown by
the Court Commissioners, subject to the
provisions of the Cantonment Act. It is also held
that the petitioner is entitled to recover a sum of
Rs.35,20,498/- along with interest at the rate of
12% per annum from 04.05.2011 till realization
against the respondent No.1, and also held that
defendant No.2 is entitled to recover a sum of
Rs.9,18,717/- from defendant No.1. The plaintiff
is also entitled to receive Rs.14,916/- along with
interest at the rate of 12% per annum from
29.08.2011 till realization against respondent
No.1, as per the clause 7 of the decree passed by
this Court in RFA No.282/1993. Respondent Nos
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1,4, and 5, aggrieved by the final decree passed
in FDP No.1/1994 preferred an appeal in
R.A.No.175/2015 on the file of the learned IX
Additional District and Sessions Judge, Belagavi.
4. The First Appellate Court, after hearing the
learned counsel for the parties, and reappreciating the
entire evidence on record, allowed the appeal vide
judgement dated 08.03.2017, and set aside the final decree
dated 04.07.2015, and remitted the matter to the trial
Court with a direction to appoint the Tahasildar, Belagavi,
as Court Commissioner to submit the partition proposal of
the plaintiff's share in the 'D' schedule property, and to
appoint the very same Court Commissioner, Sri A.G.
Kankanwadi, Advocate, or any other Advocate, to submit
the partition proposal regarding house properties, and the
commercial establishment as per the preliminary decree
passed in RFA No.282/1993, and disposed of the matter
afresh in accordance with law. The petitioner, aggrieved by
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the judgment passed in R.A. No.175/2015, filed this
Miscellaneous Second Appeal.
5. Heard the arguments of the learned counsel for
the petitioner and the respondents.
6. Learned counsel for the petitioner submits that
the First Appellate Court committed an error in remanding
the matter to the trial Court. He submits that the Court can
act based on the report submitted by the Revenue Officers
as per Section 54 of the Code of Civil Procedure (CPC). He
also submits that the petitioner is entitled to a 1/3rd share.
The respondents can allot any portion of a 1/3rd share to the
petitioner. The First Appellate Court committed an error in
remitting the matter without properly considering the
reports submitted by both the Court Commissioners. He
further, submits that the Court Commissioner was
appointed in the presence of the respondents, and the
books of accounts were in the custody of the trial Court,
and the chartered accountant, on verification of the
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accounts, has submitted a report. Hence, the question of
issuing a notice by the Court Commissioner would not arise.
Therefore, on these grounds, he prays to allow the appeal.
7. Per contra, the learned counsel for the
respondents submits that the Court directed the Tahsildar
to submit the proposal for a partition, but he delegated his
power to the Taluka Surveyor. She submits that the report
submitted by the Taluka Surveyor is not in compliance with
Section 54 of the CPC. She also submits that the learned
Advocate who was appointed as the Court Commissioner did
not issue a notice before verifying the accounts. Though,
the Commissioners were examined as CW-1 and CW-2, no
reports were marked. The trial Court committed an error in
placing reliance on the unexhibited reports and thereby
passing the final decree. Furthermore, she submits that the
Advocate Court Commissioner and the Taluka Surveyor did
not visit the site for preparing the report and they prepared
the report while sitting in the office. Hence, she submits
that the First Appellate Court was justified in remanding the
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matter to the trial Court. Therefore, on these grounds, she
prays to dismiss the appeal.
8. This Court admitted the appeal on 25.07.2017 to
consider the following substantial question of law:
(i) Whether the First Appellate Court was justified
in overlooking the reasoned findings of the trial
Court in accepting the Commissioner's report
and Auditor's report ?
(ii) What order or decree ?
Regarding substantial question of law No.(i)
9. There is no dispute that the petitioner filed a suit
for a partition and separate possession against the
respondents in O.S.No.46/1984. The said suit was decreed
vide Judgment dated 20.07.1993. The respondents,
aggrieved by the Judgment and preliminary decree,
preferred an appeal before this Court in RFA No.282/1993.
This Court allowed the appeal in part and modified the
Judgment and preliminary decree passed in
O.S.No.46/1984. The respondents, aggrieved by the
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Judgment passedby this Court, preferred a Special Leave
Petition before the Hon'ble Apex Court in SLP
No.5011/1997, which came to be dismissed.
10. After the dismissal of the Special Leave Petition,
the petitioner filed a petition under Order XX Rule 18 of the
CPC for drawing up of the Final Decree. The respondents
filed their objections to the main petition. The FDP Court
appointed the Tahsildar and an Advocate as the Court
Commissioners to ascertain the proposed partition,
demarcate the properties, and submit a report. Although,
the FDP Court issued directions to the Tahsildar to carry out
the necessary instructions, the Tahsildar delegated his
powers to the Taluka Surveyor. The Taluka Surveyor issued
a notice to the parties to be present on 10.10.2012;
However, he did not come. Neither the Tahasildar nor the
Taluka Surveyor visited the spot, and the Surveyor did not
ascertain the market value of the properties.
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11. The Advocate Commissioner was examined as
CW-1. He deposed that, as per the directions issued by the
FDP Court, he submitted a report regarding the partition
proposal regarding the house property and a commercial
establishment. However, in the course of cross-
examination, he admitted that he had not visited the
property bearing CTS No.19 situated at Kapileshwar Road,
Belagavi, and CTS No.4915/6. Although, the trial Court had
directed the Court Commissioner to submit a report
regarding the house properties and a commercial
establishment, the Advocate Court Commissioner submitted
the report without visiting the spot.
12. The FDP Court had directed the Advocate Court
Commissioner to inspect the spot and submit a report, and
no direction was issued by the FDP Court to completely
redelegate his powers to an expert Engineer. The Advocate
Court Commissioner has taken the assistance of an expert
Engineer, and submitted the report. Furthermore, it is also
observed in the impugned judgment of the First Appellate
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Court that the Court Commissioner did not serve notice to
appellant No.3 therein, before inspecting the suit properties.
At the time of inspection, she was residing in Pune.
13. Insofar as the Taluka Surveyor is concerned, he
was examined as CW-2. In cross-examination, he admitted
that he had not ascertained the actual market value of the
property by obtaining the necessary details from the Office
of the Sub-Registrar, Belagavi, and also admitted that the
commission work had not been carried out as per the
provisions of the Revenue Survey Manual. He also admitted
that the Tahsildar was appointed as the court
commissioner; However, the commission work was carried
out by him.
14. The First Appellate Court, considering the entire
material placed on record, held that the Tahsildar as well as
the Advocate Court Commissioner had not carried out the
commission work as per the directions issued by the FDP
Court. The First Appellate Court also placed reliance on the
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Judgment of this Court in the case of Shamanna Shetty Vs.
B.L. Channegowda reported in ILR 2016 KAR 3588.
15. The reports submitted by the Court
Commissioners were incomplete. The First Appellate Court
was justified in remanding the matter to the FDP Court.
Hence, I do not find any error in remitting the matter to the
trial Court, appointing the Court Commissioner to submit
the partition proposal regarding the house property and a
commercial establishment, as per the preliminary decree
passed in RFA No.282/1993. Therefore, I answer the
substantial question of law No.(i) in the affirmative
Regarding substantial question of law No.(ii)
16. In view of the above discussion, I proceed to
pass the following order:
ORDER
(i) The Appeal is dismissed.
(ii) The Judgment and decree passed in R.A.
No.175/2015 dated 08.03.2017 by the
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learned IX Additional District and Sessions
Judge, Belagavi, is hereby confirmed.
(iii) Considering that the Final Decree
Proceedings pertain to the year 1994, the
FDP Court is directed to dispose of the FDP
within a period of eight months from the
date of receipt of a copy of this Judgment.
(iv) The parties are directed to appear before
the FDP Court on 16.10.2025 without
awaiting any further notice.
(v) All the contentions of the parties are kept
open.
(vi) The office is directed to transmit the records
to the FDP Court, forthwith.
In view of the dismissal of the appeal, pending
IA's, if any, shall stand disposed of.
Sd/-
(ASHOK S. KINAGI)
JUDGE
RHR/- CT: BSB
