THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE ORDER DATED 04.01.2025 PASSED IN FDP NO.171/2012 ON THE FILE OF THE XVIII ADDITIONAL CITY CIVIL JUDGE AT BENGALURU, ALLOWING THE PETITION FILED U/O XX RULE 18(1) AND (2) R/W SECTION 54 OF CPC.THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE R. NATARAJ

ORAL JUDGMENT

In this appeal, the appellant has challenged an order dated 04.01.2025 passed by the XVIII Additional City Civil Judge, Bengaluru (henceforth referred to as 'final decree Court') in FDP No.171/2012, by which it accepted the report of a Court Commissioner partitioning one of the suit properties.

(i) A suit in O.S.No.1749/2006 was filed for partition and separate possession of the plaintiffs' share in the suit schedule properties. The suit was filed in respect of two survey numbers namely, land in Sy.No.8/3, measuring 2 acres including 8 guntas of kharab and Sy.No.192/1, measuring 18 guntas, both situate at Doddanekundi Village, Varthur Hobli, Bengaluru East Taluk, Bengaluru Urban District. The suit was decreed. The plaintiff Nos.2 and 3 then filed FDP No.171/2012 for giving effect to the preliminary decree granted in O.S.No.1749/2006. The final decree Court appointed a Commissioner for division of both the aforesaid properties. Accordingly, the Survey Commissioner submitted a report by demarcating portions of the properties as per the shares of the plaintiffs in Sy.No.8/3. In so far as Sy.No.192/1 is concerned, the Survey Commissioner specifically mentioned that "already houses are constructed over Sy.No.192/1 and hence, I cannot conduct the survey physically. But I have identified open spaces through total station method."

(ii) The final decree Court after perusing the report of the Survey Commissioner, accepted the division in so far as Sy.No.8/3 is concerned. However, in so far as Sy.No.192/1 is concerned, it held as follows:-"I have perused the said report and found that there is no any irregularity/illegality committed by the Court Commissioner. He has divided Sy.No.192/1 measuring 0-18 guntas and shown the property as available on the spot. As per the said report, he has allotted the property marked as IIA to IIC, totally measuring 0.03 guntas 24 annas in favour of respondent No.3/Jayappa @ Jayaramareddy, 0.04 guntas 8 annas in IA & IB to respondent No.2/N.S. Nagaraj, 0.04 guntas 8 annas in IIIA & IIIB are allotted to petitioner No.2/Smt. Saraswathi and 0.04 guntas 8 annas in IV is allotted to petitioner No.1/Smt. Vasantha."

(iii) The final decree Court after accepting the report, passed an order allotting IA and IB, measuring 0.03 guntas and 0.01 gunta 8 annas in favour of Smt. Saraswathi/petitioner No.2 before it, 0.04 guntas 8 annas identified as IV to petitioner No.1/Vasantha, portion shown as IIA, IIB and IIC, totally measuring 0.04 guntas and 8 annas to respondent No.3- Jayappa and IIIA and IIIB measuring 0.04 guntas and 8 annas to respondent No.2/N.S. Nagaraj.

(iv) Being aggrieved by the said demarcation and apportionment, the appellant is before this Court.

The learned counsel for the appellant submits that Sy.No.192/1 was bound by the boundaries mentioned in the decree and therefore, the division ought to be in accordance with the boundaries mentioned in the decree. He contends that the Survey Commissioner was appointed to divide Sy.No.192/1. Instead of identifying the land in Sy.No.192/1 within the boundaries mentioned in the decree, he had reported that several houses had come up in the property and that he had identified vacant spaces in the said property and had divided the same. He contends that this is impermissible as the Survey Commissioner cannot arrogate to himself the power of the Civil Court. If there is any alteration in the boundaries, it must have been done by the Civil Court and not by the Commissioner.

Per contra, the learned counsel for the caveator/respondent Nos.1 and 2 submits that the Surv