(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)
judgment and decree dated 13.10.2023 passed in FDP
2. For the sake of convenience, the parties are referred
to as per their rank before the Trial Court.
3. Briefly stated the facts giving rise to the present
4. After contest, the said suit in O.S.No.273/2015 came
by the Trial Court. It is a matter of record and undisputed fact,
be entitled to 1/8th share each in the suit schedule properties.
finality and became conclusive and binding upon the parties.
in the case of Vineeta Sharma vs. Rakesh Sharma2, the
No.1 and defendant Nos.2 to 6 jointly. By order dated
share, the defendant Nos. 2 to 6 jointly would be entitled to 1/4th
1/4th share in the suit schedule properties. The said modified
became conclusive and binding upon the parties. After
appointment of ADLR/Thasildar, Dharwad as a Court
plaintiffs' 1/4th share each in the suit schedule properties.
6. In this context, it is relevant to state that the
2. In the accompanying affidavit it is stated that
the petitioners have filed the present petition to draw final
decree as per the preliminary decree passed in original
Hereinafter referred to as "CPC"
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suit. Thereafter they filed application and got modified the
decree by way of another fresh preliminary decree drawn
on 06.07.2022 as per order passed by this Court on I.A.
No.3.
3. On perusal of entire material placed on record, it
reveals that the preliminary decree was originally passed
in O.S. No.273/2015 wherein this Court has decreed that
the plaintiff No.1 and 2 are entitled for 1/8th share each
in the suit property. Based on said decree they filed the
present petition. During pendency of the present petition
they filed I.A. No.3 under Section 151 of CPC and they
sought for modification of decree. Based on said
application this Court has passed a fresh preliminary
decree on 22.06.2022. Based on said fresh preliminary
decree they filed the present application to appoint the
ADLR/Tahasildar as Court commissioner to divide the suit
property. The respondents have not filed any objections
and there is no any stay to the fresh preliminary decree
drawn by this Court. Thus, it is clear that as per said
preliminary decree the parties are entitled to get their
shares in the suit property. The suit property is
agricultural landed property situated within Dharwad
taluka. Hence, to divide the same, demarcate the shares
of the parties and submit proposal for partition of said
property between the parties as per decree, it is
necessary to appoint the Tahasildar. Dharwad as Court
commissioner. Hence, I proceed to pass the following:
ORDER
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I.A. No.IV filed by the petitioners under Order XXVI
Rule 13 R/w section 75 of CPC is hereby allowed.
The Tahasildar, Dharwad is appointed as Court
commissioner. He is directed to measure, demarcate the
boundaries of the suit property and submit his proposal
for partition of the suit property between the parties as
per the modified preliminary decree passed by this Court
on 06.07.2022.
The petitioners are directed to pay commissioner's
fee of Rs.2,000/-.
Office is directed to issue commission warrant if
petitioners pay the commissioner fee and supply the
necessary papers.
R/by: 09.01.2023
III Addl. Senior Civil Judge & CJM.,
Dharwad."
7. Pursuant to the aforesaid order on I.A.No.4 allowing
the said application filed by the plaintiffs for appointment of
Thasildar as a Court Commissioner, the Registry of the Trial
Court issued commission warrant to the ADLR/Thasildar,
Dharwad to visit the suit schedule property, conduct a survey
and submit report along with sketch demarcating and identifying
four portions of suit schedule property in terms of preliminary
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decree. The ADLR/Thasildar submitted a sketch, which reads as
under:
8. As can be seen from the aforesaid report, in the
sketch submitted by the ADLR, the entire suit schedule property
was divided into four equal portions by proposing to allot portion
No.1 in favour of plaintiff No.1, portion No.2 in favour of plaintiff
No.2, portion No.3 in favour of defendant Nos.1, 7 and 8 jointly,
and portion No.4 in favour of defendant Nos.2 to 6 jointly.
9. The plaintiffs and defendant No.2 submitted that they
did not have any objection to the report and sketch of the Court
Commissioner. However, defendant Nos.1, 7 and 8 filed their
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objections to the report and sketch requesting the Trial Court to
reject the report of the Court Commissioner. After hearing the
parties, the Trial Court proceeded to pass the impugned
judgment and decree accepting the report of the Court
Commissioner by rejecting the objections of the appellants
herein i.e., defendant Nos.1, 7 and 8 by holding as under:
"9. POINT No.1: There is no dispute that the present
petitioners had filed suit for partition and separate
possession in O.S. No.273/2015. Their said suit was
decreed and it was declared that they each are
entitled to get 1/8th share in the suit property by
metes and bounds. Based on said preliminary decree
they filed the present petition. Thereafter due to
change in law i.e., by virtue of Vineeta Sharma vs
Rakesh Sharma case, the petitioners filed an
application in this FDP proceedings to modify the
preliminary decree and allot equal share to them.
After hearing both side on said application this Court
allowed the said application on 22.06.2022 and it was
declared that the plaintiffs No.1 and 2 each are
entitled to get 1/4th equal share. defendant No.1 is
entitled to get 1/4th share and defendants No.2 to 6
being legal heirs of Gadigevva they together entitled
to get her 1/4th share in the suit property.
Accordingly, modified preliminary decree is drawn.
10) Thereafter the petitioners filed an application
to appoint the ADLR/ Tahasildar, Dharwad as Court
commissioner to measure the suit property and
demarcate their shares. The respondents not filed any
objections to said application and after hearing the
arguments, this Court allowed the said application on
08.11.2022 and appointed the Tahasildar, Dharwad as
Court commissioner to measure the suit property and
demarcate the shares of the parties. Accordingly, the
Court commission executed the commission work and
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submitted his report."
11) The advocate for the petitioners has submitted
that he has no objections to the Court commissioner's
report.
12) The advocate for the respondents filed
objections contending that this Court appointed the
Tahasildar as commissioner, but the ADLR has
executed the commission work, hence, same is not
acceptable one. There is no dispute that the ADLR is
attached to Tahasildar Office, Dharwad. He executed
the commission work as per order of this Court. As
per section 54 of CPC it is necessary for the Court to
appoint a revenue officer not below the rank of
Tahasildar to effect the partition. Thus, this Court
appointed the Tahasildar, Dharwad as Court
commissioner. The Tahasildar, Dharwad took the
assistance of ADLR and executed the commission
work and submitted the report. Practically it is not
possible to Tahasildar in every case to execute
commission work personally. Hence, he can take the
help of technical staff i.e., surveyor. Hence, this Court
is of the opinion that there is no any illegality in that
process. Moreover, the objection of the respondents is
only technical one. Hence, that holds no water.
13) The respondents have taken another
contention that the Court commissioner has not issued
notice to them and he not produced RPAD receipts
before the Court. But on careful perusal of
commissioner's report it is crystal clear that he
produced the RPAD receipts to show that he issued
notices to respondents No.1, 7 and 8 through RPAD.
Even he issued notice to other parties also through
RPAD. Thus, said contention of the respondent No.1,
7 and 8 is also not acceptable one. Moreover, he
produced the unclaimed postal covers which were sent
to respondents No.1 and 7. As per those
endorsements also it is clear that the respondents
No.1 and 7 intentionally unclaimed the said notices.
Hence, now they cannot take said defence that notice
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not served to them. Thus, said objections also holds
no water.
14) The respondents taken another contention
that in the whatap-taktha the commissioner has
shown 5 portions of the property. On careful perusal
of commissioner's report it is crystal clear that he
clearly mentioned in his report that 2 guntas of land is
extra land, hence, he shown the same in 5th portion in
his report. As per the decree it is clear that the extent
of the suit schedule property is shown as 4 acre 16
guntas and commissioner has divided said property
between the parties dividing into 4 portions as per
preliminary decree and he shown those 4 portions in
his report. As there is 2 guntas extra land, he shown
the same in 5th portion. The petitioners fairly
submitted that they are not claiming any right over
said 2 guntas land and respondents may take the
same if they are entitled to get the same. Thus, it is
clear that Court commissioner has executed his work
with regard to extent of the property shown in the
decree. Thus, the contention of the respondents is not
acceptable one.
15) The respondents in their objections have
taken another contention that the commissioner has
not considered fertility of the land. But there is no any
specific objections to show that commissioner has
given unfertilized land to the respondents. On careful
perusal of objections filed by the respondents it
reveals that they filed formal objections and there is
no any substance in their objections. Further it reveals
that they have not specifically taken any objections
how and for what reason the commissioner's report is
illegal. On the other hand, on careful perusal of the
report, it reveals that the Court commissioner after
issuing notice to the respondents he executed the
commission work and he demarcated the shares of
the parties as per the modified preliminary decree.
Thus, there is no any merit in the objections filed by
the respondents. Hence, their objections are
overruled.
16) The advocate for the respondents at the time
of his arguments he relied on a decision reported in
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AIR 2021 Karnataka 10 between N.M.Ramesh Vs.
State of Karnataka and another. The said
judgment is pertaining to Essential Commodities Act.
Hence, the same is not applicable to this case.
17) He relied on another decision reported
in ILR 2008 KAR 1840 between Parappa and
others Vs. Bhimappa and another. Wherein the
Hon'ble High Court of Karnataka has held that once
Court commissioner submits report, the same shall
be evidence in that case and that forms part of
record and it is not necessary to mark the same as
exhibit and examine the commissioner. However, if
any party files objections challenging the correctness
of said report and if they prays the Court to permit
them to examine the commissioner, the Court may
permit them to examine him before the Court. But
herein this case, the respondents have not sought for
any such prayer to permit them to cross-examine the
Court commissioner and even they not made out any
good grounds to reject the commissioner's report.
18) Moreover, on careful perusal of their
objections it reveals that there is no merit in their
objections to summon the commissioner and permit
them to cross-examine him. Further it is clear that
the respondents neither filed any objections to main
petition or commissioner appointment application.
Now after executing the commission work they filed
the objections without any valid grounds. Hence, this
Court is of the opinion that said judgment is not
applicable to the case on hand.
19) As per modified preliminary decree passed by
this Court it is crystal clear that the plaintiffs No.1
and 2 each are entitled to get 1/4th share and
defendants No.1 is entitled to get 1/4th share and
defendants No.2 to 6 together entitled to get 1/4th
share. Till today none of the respondents have
challenged the said modified preliminary decree.
Hence, it is clear that same attained its finality and
based on said decree the commission work has been
executed and commissioner has measured the suit
property and demarcated the shares of the plaintiffs
and defendants. The total extent of suit schedule
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property is 4 acre 16 guntas. The commissioner has
allotted 01 acre 04 guntas to each plaintiffs No.1 and
(together). Thus, it is clear that he demarcated the
shares of the parties in accordance with modified
preliminary decree and his report is in accordance
with law. Thus, same is acceptable one and the
parties are entitled to get final decree in accordance
with the same. Thus, I answer point No.1 in the
affirmative.
20) POINT No.2: In view of the
above discussion, I proceed to pass the
following:
OR DE R
The final decree petition filed by the
petitioners is hereby allowed.
The court commissioner's report and map
submitted by him are accepted.
The petitioners and respondents are entitled to
get their respective shares as per the Court
commissioner's report in the suit schedule property.
The Court commissioner's report and map are
part and parcel of this order.
Parties shall bear their own costs.
Draw final decree accordingly.
(Dictated to the stenographer and transcription typed
by him, corrected by me and order is pronounced in
the open court on the 13th day of October, 2023).
Sd/-
(Mahesh Chandrakanth)
III Addl. Senior Civil Judge & CJM.,
Dharwad
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10. A perusal of the impugned judgment and
decree will indicate that though appellants/defendants No.1,
7 and 8 contended that the Trial Court had appointed the
Tahasildar whereas the commission work was conducted by
the ADLR which was impermissible in law, the said
contention urged by the appellants was not accepted by the
Trial Court. So also, the other contention urged by the
appellants that an opportunity was not provided to the
appellants, who were not present at the spot when the
commission work was conducted was also not accepted by
the Trial Court. Aggrieved by the impugned judgment and
decree passed by the Trial Court accepting the report of the
Court Commissioner and directing drawing up of final
decree, the appellants are before this Court by way of the
present appeal.
11. Heard the learned counsel for the appellants
and the learned counsel for the respondents, and perused
the material on record.
12. The learned counsel for the appellants submits
that the impugned judgment and decree passed by the Trial
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Court accepting the report of the Court Commissioner
deserves to be set aside since the commission work was
conducted by the ADLR and not by the Tahasildar who was
appointed as Court Commissioner and as such, the
impugned judgment and decree stands vitiated on this
ground. Secondly, it was contended that the appellants
were not notified and were not present at the spot when the
commission work was conducted and the impugned
judgment and decree accepting the report of the Court
Commissioner in the absence of the appellants deserves to
be set aside. It is therefore, contended that the impugned
judgment and decree passed by the Trial Court may be set
aside and the matter be remitted back to the Trial Court for
reconsideration afresh by directing fresh/new commission
work to be conducted in accordance with law.
13. Per contra, the learned counsel for the
respondents submitted that the ADLR was equivalent in
rank to the Tahasildar and merely because the ADLR who
was equivalent in rank to the Tahasildar, who was
appointed as Court Commissioner, conducted the
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commission work and so long as no prejudice is caused to
the appellant, it cannot be said that the impugned judgment
and decree warrants interference by this Court in the
present appeal. That, the notices issued to the appellants by
the Court Commissioner were returned with postal
endorsement "unclaimed" and since the appellants did not
take any steps in this regard, the Court Commissioner was
justified in proceeding to conduct the commission work and
proposing to divide the suit schedule properties into four
equal proportions having equal value which did not cause
any prejudice to the appellant. It was therefore submitted
that there is no merit in the appeal and that the same is
liable to be dismissed.
14. The following points arise for consideration in
the present appeal:
(i) Whether the Trial Court was justified in accepting
the report of the Court Commissioner and
directing drawing up of final decree in terms of
the report of the Court Commissioner?
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(ii) Whether the impugned judgment and decree
passed by the Trial Court warrants interference
by this Court in the present appeal?
15. Before adverting to the rival contentions, it is
necessary to place on record that, initially, the Trial Court passed
a preliminary decree holding that the plaintiffs would be entitled
to 1/8th share each in the suit schedule property. However,
during the pendency of the final decree proceedings, in the light
of the judgment of the Apex Court in the case of Vineeta Sharma
(supra), the preliminary decree passed by the Trial Court and
confirmed by this Court was modified by declaring that the
plaintiff No.1, plaintiff No.2, defendant No.1, and defendants
No.2 to 6 (jointly) would be entitled to 1/4th share each in the
suit schedule property. It is also an undisputed fact that the
modified preliminary decree declaring that all the aforesaid
parties will be entitled to 1/4th share in the suit schedule
property has attained finality and become conclusive and binding
upon the parties.
16. A perusal of the Court Commissioner's report and the
sketch will indicate that the topography of the suit schedule
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property does not, in any way, indicate that the value of all the
four portions demarcated as 1, 2, 3 and 4 are different from each
other. In fact, the Trial Court, in the impugned judgment and
decree, records that the plaintiffs fairly contend that in addition
to four equal portions, extra two guntas of land down as portion
No.5 was not being claimed by the plaintiffs. The Trial Court also
took into account that the appellants, in their objections, did not
take up any contention that portion No.3 allotted to them was
lesser in value compared to the remaining portions. The Trial
Court also noticed the fact that though the appellants stated that
portion No.3 allotted to the appellant No.1 was said to be less
fertile, the appellant No.1 did not place any legal or acceptable
evidence in this regard. On the other hand, the Trial Court took
note of the fact that all the four portions including the portion
proposed to be allotted to appellant No.1/plaintiff No.1 were
equal in extent and that no prejudice would be caused to
appellant No.1 if the said portion was allotted towards his 1/4th
share in the suit schedule property. Under these circumstances,
we are of the view that the Trial Court was fully justified in
accepting the report of the Court Commissioner which was
perfectly just and equitable and did not cause any prejudice,
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hardship or loss to any of the parties warranting interference by
this Court in the present appeal.
17. The appellants had contended that despite the Trial
Court appointing the Tahasildar as a Court Commissioner, it was
the ADLR who had conducted the local inspection and who had
conducted the survey and submitted his report which is
impermissible in law and the same deserves to be set aside. In
this context, it is pertinent to note that both the Tahasildar and
the ADLR occupy the same rank/status in hierarchy. Under
identical circumstances in the case of Sri. Ganesh Vishnu Hegde
Vs. Bhavani Dattatreya Hegde and another [RSA
No.101274/2022, disposed of on 05.11.2024], a learned Single
Judge of this Court came to the conclusion that merely because
ADLR conducted the survey instead of the Tahasildar, the said
circumstance would not be a basis to interfere with the report
and sketch of the Court Commissioner or the judgment and
decree passed by the Trial Court accepting the same. In Ganesh
Vishnu Hegde's case (supra), this Court held as under:
"8. The question that falls for consideration is
whether the trial Court was justified in accepting the
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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 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
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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:
ORDER
(i) The Regular Second Appeal is hereby
dismissed.
(ii) The judgment and decree of the Courts below
stands confirmed."
18. In the instant case, the contention urged by the
learned counsel for the appellant that the ADLR could not have
conducted the commission work stands perfectly answered by
this Court in Ganesh Vishnu Hegde's case (supra) and
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consequently, the said contention urged by the learned counsel
for the appellants cannot be accepted.
19. Learned counsel for the appellant also placed reliance
upon the judgment of this Court in i) Combe v. Combe4, and ii)
Shamanna Setty Vs. B.L.Channegowda5 and iii) Somaraddi and
others Vs. Smt. Tayavva (since deceased by L.Rs)6 in order to
contend that so long as the Trial Court had appointed the
Tahasildar as Court Commissioner, it was impermissible for the
ADLR to have conducted the survey and submit a report which
could not have been accepted by the Trial Court. In our
considered opinion, as stated supra, apart from the fact that the
said contention has been negatived by the Trial Court, so long as
the ADLR, who is equivalent to the rank of the Tahasildar as held
by this Court in Ganesh Vishnu Hegde's case (supra), it cannot
be said that there is any demonstrable prejudice, loss, injury or
hardship caused to the appellant in the ADLR, who is equivalent
in rank to the Tahasildar, conducting the commission work and
submitting his report which was accepted by the Trial Court. In
(1951) 2 KB 215 (CA)
(2007)5 Kant LJ 494
RSA No.100328/2015, disposed off on 05.06.2015
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this context, it is relevant to state that Section 99 of the Code of
Civil Procedure, 1908, which reads as under:
"99. No decree to be reversed or modified for error
or irregularity not affecting merits or jurisdiction.- No
decree shall be reversed or substantially varied, nor shall
any case be remanded, in appeal on account of any
misjoinder or non-joinder of parties or causes of action or
any error, defect or irregularity in any proceedings in the
suit, not affecting the merits of the case or the jurisdiction
of the Court:
Provided that nothing in this section shall apply to
non-joinder of a necessary party."
20. In the case on hand, in the absence of any
demonstrable prejudice not affecting the merits of the case or
the jurisdiction of the Court, it cannot be said that there is any
error, defect or irregularity in any proceedings in the suit
including the ADLR conducting the survey and submitting the
report despite the Tahasildar being appointed by the Trial Court,
and the question of reversing or substantially varying or
remanding the matter in the present appeal would not arise in
the facts and circumstances of the instant case and
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consequently, even this contention urged by the appellant cannot
be accepted.
21. Insofar as the contention urged by the appellants
that they were not notified of the proposed commission work to
be conducted by the Court Commissioner is concerned, even this
contention has been dealt with by the Trial Court which has
taken note of the fact that the appellants did not avoid the
service of notice by the Court Commissioner and the postal
endorsement indicated that it was returned as "unclaimed". At
any rate, so long as the report of the Court Commissioner and
the sketch equitably, justly, reasonably and properly purports to
divide and effect the partition of the sole item of suit schedule
property by allotting four equal shares in favour of the parties, in
our considered opinion, this is not a fit case for interference by
this Court in the present appeal and even this contention of the
appellants cannot be accepted.
22. A perusal of the various grounds and contentions put
forth and urged by the appellants in the present appeal will also
indicate that it is not their case that the merits of the division
made by the Court Commissioner has not been assailed or
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challenged by the appellants and the impugned judgment and
decree passed by the Trial Court deserves to be sustained on this
ground also.
23. In view of the foregoing discussion, we do not find
any merit in the appeal. Hence, we pass the following:
ORDER
i) The appeals are dismissed.
ii) The order dated 13.10.2023 passed in F.D.P.
No.34/2019 by the III Additional Senior Civil
Judge and CJM, Dharwad, is affirmed.
Sd/-
(S.R. KRISHNA KUMAR)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
YAN,KMS
CT-MCK
