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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 3^RD DAY OF SEPTEMBER 2021

BEFORE

THE HON9BLE MR. JUSTICE E.S.INDIRESH

R.S.A No.1434 OF 2016 (PAR)

BETWEEN:

SRI SHIVANNA

S/O LATE ANKUGOWDA,

AGED ABOUT 62 YEARS,

LALAGHATTA, KASABA HOLBI,

CHANNALPATNA TALUK - 562 160

... APPELLANT

(BY SRI.K. ANANDA, ADVOCATE)

AND:

1.

SMT. GOWRAMMA

W/O LATE ANKEGOWDA,

AGED ABOUT 82 YEARS,

2.

SRI. SHIVRAJ

S/O LATE ANKUGOWDA,

AGED ABOUT 66 YEARS,

3.

SRI. RAMAKRISHNA

S/O LATE ANKUGOWDA,

AGED ABOUT 64 YEARS,

4.

SMT. CHANNAPPA

S/O LATE ANKUGOWDA,

AGED ABOUT 60 YEARS,

5.

SRI. RAMAMURTHY

S/O LATE ANKUGOWDA,

AGED ABOUT 58 YEARS,

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6.

SMT. SOWBHAGYA

D/O LATE ANKUGOWDA,

AGED ABOUT 52 YEARS,

7.

SRI. RAGHU @ RAGHAVENDRA

S/O LATE ANKUGOWDA,

AGED ABOUT 48 YEARS,

8.

SRI. SIDDAPAJI

S/O LATE ANKUGOWDA,

AGED ABOUT 47 YEARS,

9.

SRI. CHANDRU

S/O LATE ANKUGOWDA,

AGED ABOUT 55 YEARS,

10.

VIJAYA

S/O LATE ANKUGOWDA,

AGED ABOUT 42 YEARS,

ALL ARE RESIDING AT

THIMMASANDRA VILLAGE

LALAGHATTA, KASABA HOBLI

CHANNAPATNA TALUK-562 160

... RESPONDENTS

(BY SRI. T.P. VIVEKANANDA, ADV., FOR R6;

R3, R4 AND R8 SERVED AND UNREPRESENTED;

NOTICE TO R1, R2, R5, R7, R9 AND R10 SERVICE

OF NOTICE IS HELD SUFFICIENT)

THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE

JUDGEMENT & DECREE DATED 12.07.2016 PASSED IN RA

NO.56/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE

AND JMFC., CHANNAPATTANA, RAMANAGAR DISTRICT,

DISMISSING THE APPEAL AND CONFIRMING THE ORDER

DATED 31.10.2015 PASSED IN FDP NO.8/2014 ON THE

FILE

OF

THE

PRL.

CIVIL

JUDGE

AND

JMFC.,

CHANNAPATNA, ORDERED TO DRAW THE FINAL DECREE

IN ACCORDANCE WITH THE REPORTS OF THE COURT

COMMISSIONER.

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THIS R.S.A. COMING ON FOR FURTHER HEARING,

THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

JUDGMENT

This Regular Second Appeal is preferred by the

plaintiff

against

the

judgment

and

decree

dated

12.07.2016 passed in R.A.No.56/2015 on the file of the

Senior Civil Judge and JMFC, Channapattana, Ramanagar

District confirming the order dated 31.10.2015 passed in

FDP No.8/2014 on the file of the Principal Civil Judge

(Junior Division) and JMFC, Channapatna, Ramanagaram.

2.

For the sake of convenience, the parties in this

appeal shall be referred to in terms of their status and

ranking before the trial Court.

3.

It is the case of the petitioner before the Final

Decree Proceedings that the plaintiff in O.S.No.5/2009 on

the file of the Principal Civil Judge and JMFC, Channapatna

has filed a suit for partition, which came to be allowed on

29.10.2011 and thereafter, the said judgment and decree

passed by the trial Court was challenged before the First

Appellate Court and consequently, same was challenged

before this Court in R.S.A.No.1566/2016. The said appeal

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came to be dismissed and allotment of share made by the

First Appellate Court was confirmed on 01.09.2021. In this

background, it is urged in the memorandum of appeal that

the trial Court in FDP proceedings has appointed the Court

Commissioner and the said Court Commissioner while

effectuating the order of the trial Court has demarcated

and divided the property, which is outside the scope of

Section 54 of Civil Procedure Code.

4.

I have heard Sri. K. Ananda, learned counsel

appearing for the appellant and Sri. T.P. Vivekananda,

learned counsel appearing for respondent No.6 and

perused the material on record.

5.

Sri. K. Ananda, learned counsel appearing for

the appellant argued that the Court Commissioner ought

not to have ventured into division of the property but

effectuated the order issued by the trial Court in respect of

assessing as to whether the properties could be divided

between the parties equally or not? In support of his

contention, he relied upon the case of 'Smt. Obamma

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and Others Vs. Sri. Boraiah and Others', reported in

ILR 2016 KAR 4692.

6.

Per contra, Sri. T.P. Vivekananda, learned

counsel appearing f