The appointment of a revenue officer of equivalent rank as a Court Commissioner under Section 54 CPC is permissible, validating the acceptance of their report in partition proceedings.

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 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.

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 Others ILR 2004 KAR 3664 (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.

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