Karnataka High Court
Smt.Annapurna D/O Nagappa Godi vs Smt.Shantawwa Wo. Andanappa Patil on 30 January, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 100266 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 100266 OF 2021 (-)
BETWEEN:
1. SMT.ANNAPURNA D/O NAGAPPA GODI
W/O. MAHADEVAPPA TULI
AGE. 62 YEARS, OCC. HOUSEHOLD WORK,
R/O. MYAGERI ONI, SHIRAHATTI,
TALUK. SHIRAHATTI, DIST. GADAG-582120.
2. ISHWARAPPA S/O. NAGAPPA GODI
AGE. 45 YEARS, OCC. AGRICULTURE,
R/O. BANNE PETE, LAXMEHWAR,
TALUK. LAXMESHWARA, DIST. GADAG-582116.
3. DRAKSHAYANI D/O. NAGAPPA GODI
W/O. DYAMAPPA PATIL
AGE. 32 YEARS, OCC. HOUSEHOLD WORK,
R/O. BASTI ONI, LAXMESHWAR,
TALUK. LAXMESHWARA, DIST. GADAG-582116.
Digitally signed
4. PARAWWA W/O. NINGAPPA TULI
by ROHAN
HADIMANI T
ROHAN Location: HIGH
HADIMANI COURT OF
KARNATAKA
AGE. 51 YEARS, OCC. HOUSEHOLD WORK,
T DHARWAD
Date: 2023.02.07
10:02:35 +0530 R/O. MYAGERI ONI, SHIRAHATTI,
TALUKA. SHIRAHATTI-582120.s
5. SHIVANAND S/O. NINGAPPA TULI
AGE. 28 YEARS, OCC. AGRICULTURE,
R/O. MYAGERI ONI, SHIRAHATTI,
TALUK. SHIRAHATTI, DIST. GADAG-582120.
6. JAGDISH S/O. NINGAPPA TULI
AGE. 24 YEARS, OCC. AGRICULTURE,
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RSA No. 100266 of 2021
R/O. MYAGERI ONI, SHIRAHATTI,
TALUK. SHIRAHATTI, DIST. GADAG-582120.
7. MAHADEVAPPA S/O. FAKIRAPPA TULI
AGE. 47 YEARS, OCC. AGRICULTURE,
R/O. MYAGERI ONI, SHIRAHATTI,
TALUK. SHIRAHATTI, DIST. GADAG-582120.
...APPELLANTS
(BY SRI.J.S. SHETTY & SMT.DEEPA UDIYAR, ADVS.)
AND:
1. SMT.SHANTAWWA WO. ANDANAPPA PATIL
AGE. 62 YEARS, OCC. HOUSEHOLD WORK,
RO. JAMBALDINNI, TQ. HUNAGUND,
DIST. VIJAYAPUR-587154.
2. BASAVANNEPPA SO. FAKKIRAPPA TULI
AGE. 60 YEARS, OCC. AGRICULTURE,
R/O. MYAGERI ONI, SHIRAHATTI,
TALUK. SHIRAHATTI-582120.
3. SMT. PAKIRAWWA PARAMESHWARAPPA MABAL
AGE. 52 YEARS, OCC. HOUSEHOLD WORK,
R/O. MYAGERI ONI, SHIRAHATTI,
TALUK. SHIRAHATTI, DIST. GADAG-582120.
4. SMT. YALLAMMA W/O. ANANDAPPA TULI
AGE. 58 YEARS, OCC. HOUSEHOLD WORK,
R/O. NEKAR NAGAR, HUBLI-580020.
5. AJAY S/O. ANANDAPPA TULI
AGE. 24 YEARS, OCC. SERVICE,
VISHVESHWAR CIRCLE,
4TH CROSS, NEKAR NAGAR,
HUBLI-580020.
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RSA No. 100266 of 2021
6. VIJAY S/O. ANANDAPPA TULI
AGE. 23 YEARS, OCC. SERVICE,
VISHVESHWAR CIRCLE,
4TH CROSS, NEKAR NAGAR,
HUBLI-580020.
7. ANASUYYA W/O. BASAVARAJ KANAVI
AGE. 46 YEARS, OCC. AGRICULTURE,
R/O. MULGUND, DIST. GADAG-582117.
8. SMT. MANGALA W/O. SHANKARAPPA TULI
AGE. 42 YEARS, OCC. SERVICE,
R/O. VISHVESHWAR CIRCLE,
4TH CROSS, NEKAR NAGAR,
HUBLI-580020.
9. DEEPAK S/O. SHANKARAPPA TULI
AGE. 22 YEARS, OCC. STUDENT,
R/O. VISHVESHWAR CIRCLE,
4TH CROSS, NEKAR NAGAR,
HUBLI-580020.
10. AWWAKKA D/O. SHANKARAPPA TULI
AGE. 22 YEARS, OCC. STUDENT,
R/O. VISHVESHWAR CIRCLE,
4TH CROSS, NEKAR NAGAR,
HUBLI-580020.
11. DARSHAN S/O. SHANKARAPPA TULI
AGE. 17 YEARS, OCC. STUDENT,
MINOR GUARDIAN MOTHER
SMT. MANGALA W/O. SHANKARAPPA TULI
AGE. 40 YEARS, OCC. SERVICE,
R/O. VISHVESHWAR CIRCLE,
4TH CROSS, NEKAR NAGAR,
HUBLI-580020.
12. IRAPPA S/O. NINGAPPA KADAMPUR
AGE 62 YEARS, OCC. AGRICULTURE,
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RSA No. 100266 of 2021
R/O. MYAGERI ONI,
SHIRAHATTI, TQ. SHIRAHATTI,
DIST. GADAG-582120.
...RESPONDENTS
(BY SRI.S.C.HIREMATH & SRI.M.B.PATHAK, ADVS.)
THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 10.12.2020 PASSED IN
R.A.NO.11/2018 ON THE FILE OF THE I ADDITIONAL
PRINCIPAL JUDGE, FAMILY COURT, GADAG, DISMISSING THE
APPEAL FILED U/O. 41 RULE 1 R/W.SEC.96 OF CPC. THE
JUDGMENT AND DECREE DATED 20.01.2018, PASSED IN FDP.
NO.02/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUGE AND CHIEF JUDICIAL MAGISTRATE, GADAG, ALLOWING
THE PETITION FILED UNDER ORDER XX, RULE 12 AND UNDER
ORDER XVII R/W.SEC. 151 OF CPC.
THIS APPEAL COMING ON FOR HEARING ON
INTERLOCUTORY APPLICATION, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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RSA No. 100266 of 2021
JUDGMENT
1. Present appeal is filed by the legal representatives of defendants No.3 and 4, against the order dated 10.12.2020 passed in R.A.No.11/2018 on the file of the I Addl.Principal Family Court, Gadag (hereinafter referred to as 'the First Appellate Court'), in and by which the First Appellate Court while dismissing the appeal confirmed the order dated 20.01.2018 passed in FDP No.2/2015 on the file of the Principal Senior Civil Judge & CJM, Gadag (hereinafter referred to as 'the Trial Court').
2. The aforesaid FDP No.2/2015 was filed by the respondents/plaintiffs under Order XX Rule 12 and Order XVII read with Section 151 of CPC praying to effect final decree by referring the matter to Survey Commissioner/Tahasildar, Gadag or Court Commissioner to allot 30/70th share of the plaintiffs in the suit schedule property and also to hand over vacant physical possession thereof as per preliminary decree dated 28.02.2000 passed in O.S.No.42/1995.
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3. It is the case of the respondents/plaintiffs herein that suit in O.S.No.42/1995 for partition and separate possession in respect of the suit property was filed by them and a preliminary decree dated 28.02.2000 came to be passed. Being aggrieved by the same, the appellants/defendants filed regular appeal in R.A.No.5/2000 before the First Appellate Court, which was allowed and the judgment and decree dated 28.02.2000 was set aside. Aggrieved by the same, the respondents/plaintiffs filed regular second appeal in RSA No.784/2003, which was allowed by order dated 11.09.2013, confirming the judgment and decree passed in O.S.No.42/1995. No appeal has been preferred against the said judgment and order in regular second appeal. That the appellants/defendants being aware of the said finality, have not come forward to effect partition constraining the respondents/plaintiffs to file a petition seeking drawing up of final decree and allotment of their shares. The Trial Court by order dated 07.12.2016 -7- RSA No. 100266 of 2021 appointed a Court Commissioner namely Addl. Director of Land Records (ADLR), Gadag and directed the said Court Commissioner to effect partition in respect of the suit property in terms of a preliminary decree. The said Court Commissioner appears to have filed a report and since no objections were filed to the said report, the Trial Court accepted the said report and allowed the application and directed allotment of share as per the report of the Court Commissioner. Being aggrieved by the same, the appellants/defendants preferred an appeal in R.A.No.11/2018 contending that the method and approach adopted by the Trial Court was illegal and contrary to the procedure as such the order of the Trial Court was unsustainable.
4. Based on the grounds urged, the First Appellate Court framed the following points for its consideration:
"1. Whether the shares allotted to the appellants is inequitable as contended by the appellants?-8- RSA No. 100266 of 2021
2. Whether the order of the trial court requires interference by the hands of this court?
3. What order or decree?"
5. On re-appreciation of the matter, the First Appellate Court by its impugned judgment and order dated 10.12.2020, dismissed the appeal confirming the order passed by the Trial Court in FDP No.2/2015. Aggrieved by the same, the appellants/defendants are before this Court.
6. This Court by order dated 08.09.2021, framed the following substantial questions of law:
"1. Whether, under the facts and circumstances involved in the case, the Courts below are justified in appointing the Taluka Surveyor as the Court Commissioner to effect the partition as it is contrary to Section 54 of the Code of Civil Procedure, 1908 ("CPC" for short), since as per Section 54 of CPC, officer to be appointed is, not below the rank of Tahasildar?
2. Whether, under the facts and circumstances involved in the case, the Courts below are justified in effecting the partition only on the basis of measurement, without considering the value of the properties as well as improvements made thereon?"
7. Sri.J.S.Shetty, learned counsel for the appellants reiterating the grounds urged in the -9- RSA No. 100266 of 2021 memorandum of appeal submitted that the Trial Court grossly erred in passing the order dated 17.12.2016, allowing the application filed by the respondents/plaintiffs (in IA No.4) under Order XX Rule 12 and another application under Order XVII read with Section 151 (in IA No.5) of CPC, in and by which the Trial Court had appointed the ADLR, Gadag as Court Commissioner to effect partition in respect of agricultural land in terms of the preliminary decree dated 28.02.2000. He also submits that the Trial Court grossly erred in allowing the petition filed by the petitioners and directing to draw final decree in terms of the report of the Court Commissioner.
8. Learned counsel drawing attention of this Court to the provisions of Section 54 (Karnataka Amendment) of CPC submits that the appointment of Commissioner by the Court should be of an officer who is not below the rank of Tahasildar. The obligation of the Court Commissioner appointed under Section 54 is only to submit a report. That it was the duty of the Court to partition the property
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RSA No. 100266 of 2021 and allot separate possession, if necessary on the basis of the report furnished by the Revenue Officer. That in the instant case, learned counsel submits that, the Trial Court abdicated of its duty by assigning the work of division of property to the ADLR. He submits that the said course of action is not only irregular, but also illegal as the same goes to the root of the matter. He submits that though the objections were raised by the appellants/defendants before the Trial Court as well as before the First Appellate Court, without considering these aspects of the matter, have erroneously allowed the applications filed by the respondents/plaintiffs in FDP.
9. Learned counsel relies upon the judgment of the Coordinate Bench of this Court in the case of Sri.Shivanna Vs. Smt.Gowramma passed in RSA No.1434/2016. Relying upon paragraphs 10 and 12 of the said judgment, learned counsel submits that even in the instant case, the Trial Court had no authority to direct the Revenue Officer under Section 54 of CPC to effect
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RSA No. 100266 of 2021 partition. Hence, seeks for answering the substantial questions of law in favour of the appellants and dispose of the matter.
10. Per contra, Sri.S.C.Hiremath, learned counsel for the respondents submits that the order of the Trial Court, if at all, is an irregular order and would not go to the root of the matter. He submits that merely on a technicality, the order of Trial Court cannot be rendered non-est, considering the pendency of the suit since 1995. He also submits that the appellants/defendants had liberty to file statement of objection to the commissioner report and that not having been done, they have waived of their rights, as such they cannot maintain the present appeal. Therefore, he submits that substantial questions of law be answered against the appellants and consequently dismiss the appeal.
11. Heard the leaned counsel for the parties. Perused the records.
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RSA No. 100266 of 2021
12. A short point that arise for consideration for the purpose of answering substantial questions of law is "Whether the appointment of the ADLR by the Trial Court and authorizing the ADLR to effect partition is in- consonance with the provisions of law."
13. Section 54 (Karnataka Amendment) of the 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 of such an estate shall be made by the Court in accordance with the law if any, for the time being in force relating to the partition or the separate possession of shares and if necessary on the report of a revenue officer, not below the rank of Tahasildar or such other person as the Court may appoint as Commissioner in that behalf."
14. Thus, from a reading of the aforesaid provisions of Section 54 of CPC, it is clear that, it is the primary responsibility of the Court to partition the estate and cause separation of the shares and if necessary the Court shall
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RSA No. 100266 of 2021 appoint a Revenue Officer not below the rank of Tahashildar who shall submit the report. In the instant case as seen, by the order dated 07.12.2016, the Trial court not only appointed ADLR, Gadag as the Court Commissioner to effect the partition but also directed him to execute the commission work with due notice to both the parties. The said approach by the Trial Court confirmed by the First Appellate Court, according to the appellants is erroneous and illegal. There is considerable force in the submissions made by the learned counsel for the appellants.
15. If a statute provides a particular thing to be done in a particular manner, it has to be done accordingly and not otherwise, is the settled principle of law. Section 54 of the CPC as noted herein above, casts a duty on the Court to cause partition and separate possession and allotment of shares to the parties, if necessary, upon obtaining the report from the Revenue Officer not below the rank of the Tahashildar. Though initially the learned
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RSA No. 100266 of 2021 counsel for the appellants has submitted that the ADLR is an officer below the rank of the Tahashildar, it is however clarified that his rank is equal to the rank of Tahashildar. In view of the law laid down by this Court in the case of RAMESH Vs. VISHNU AND OTHERS in W.P.No. 106672/2018 disposed of on 25.08.2021, wherein this Court on an identical situation, has held that the rank of ADLR is equal to that of the Tahashildar, therefore, the said contention of the appellants would not survive for consideration. However, the further reading of the provision of Section 54 of the CPC makes it abundantly clear that even though the Civil Court is authorized to appoint a Revenue Officer and obtain a report, the division of property and allotment of share has to be carried out by the Court itself and the same cannot be delegated even to the Court Commissioner appointed under Section 54 of the CPC.
16. In the instant case, as seen from the records namely the final decree proceedings and the
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RSA No. 100266 of 2021 Commissioner's report, which forms part of the decree passed by the Trial court, includes a sketch showing the division of the property. Perusal of said sketch reveal that same has been prepared by the Taluka Surveyor and is counter signed by the ADLR. Pointing out the same, the learned counsel for the appellants submits that the ADLR had apparently further authorized/delegated the responsibility to the Taluka Surveyor to carryout and execute the commission work which otherwise ought to have been done by the ADLR. Thus, he submits that at the first instance, delegation of the authority by the Civil Court to the ADLR to effect the partition itself was contrary to Section 54 of the CPC (Karnataka Amendment) and in the teeth of the said illegality, the ADLR could not have further delegated the power to the Taluka Surveyor to survey the land and effect partition, as seen from the annexure to the decree.
17. From the aforesaid submissions and the material on record, it is clear that the Trial Court while
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RSA No. 100266 of 2021 passing the order dated 20.01.2018 has not kept in mind the parameters and scope of Section 54 of the CPC and also while accepting the said report has not looked into the fact that the report has been prepared by the Taluka Surveyor purportedly under the instructions of the ADLR. Such a procedure cannot be countenanced.
18. This Court in the judgment and order dated 03.09.2021 passed in the case of SHIVANNA Vs. GOWRAMMA AND OTHERS in RSA.No.1434/2016 while dealing with an identical matter, at para Nos.10 and 11 has held as under:
"10. In this regard, I have carefully considered the Commissioners report produced in the paper book from page Nos.36 to 55. A perusal of page No.44 of the paper book would indicate that the Court Commissioners have not only divided the property in terms of the preliminary decree but have allotted each share to the respective parties. The said report of the Commissioners is contrary to Section 54 of CPC. In this regard, it is the duty of the Court Commissioners to see the feasibility of the division of property in terms of Section 54 of CPC. However, in the instant case, the Court Commissioners gone beyond the warrant of Commission and allotted the share in favour of the respective parties. However, the same has been accepted by the trial Court and same has been affirmed by the First Appellate Court. Perusal of the report of the Commissioners would indicate that same is not in terms of Section 54 of CPC, abdicates the power of the trial
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Court. At this juncture, it is relevant to refer paragraph 11 of the judgment of this Court in Smt.Obamma's case (supra), which reads as under:
"11. In view of the amendment of Section 54 of Code of Civil Procedure by Act No. 36 of 1998 with effect from 1.2.2001, in all cases to which the amended provision applies, the "partition shall be made only by the Court and not by the revenue officer or the Commissioner". The Court if necessary on the report of the revenue officer not below the rank of the Tahsildar to enable to it to effect partition, it can effect partition on such report and Court Commissioner cannot make a division. In the present case, admittedly, the division is made by the Court Commissioner and not, by the Court. Therefore, the substantial question of law has to be answered in negative hoiding that the Final Decree Proceedings accepting the division made by the Court Commissioner is contrary to the amended provisions of Section 54 of the Code of Civil Procedure."
11. Applying the principle laid down by this Court in the aforementioned case and on re-appreciating the Commissioners report, which would indicate that the Commissioners ought not to have divide and allot the properties in favour of the respective parties in terms of the preliminary decree as it is the duty of the trial Court to allot the share in favour of the respective parties in the suit and the said action on the part of the Commissioners amounts to abdication of the duty of the trial Court, which is not permissible under Section 54 of CPC. Accordingly, I am of the considered view that accepting the said report by the trial Court in FDP is contrary to Section 54 of CPC, in view of the law laid down by this Court in the aforementioned case."
19. In view of the above facts and situation and legal aspect of the matter, this Court is of the considered view that the Trial Court erred in authorizing ADLR-Court
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RSA No. 100266 of 2021 Commissioner to effect the partition to execute the commission work and to submit their reports and the said ADLR had further committed an error and illegality in authorizing the Taluka Surveyor to carryout the task assigned to ADLR.
20. The apprehension of the appellants that the measurement and the value of the property not having been considered cannot be overruled more so when the Court which is obligated to draw the final decree and effect the partition based on the report of the Revenue Department, has delegated the said power at the hands of ADLR. Such a course of action is illegal and contrary to the provisions of law. Substantial questions of law are answered accordingly. Consequently, the following:
ORDER i. Appeal is allowed.
ii. Order dated 20.01.2018 passed by the Trial Court in FDP.No.2/2015 and the order
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dated 10.12.2020 passed by the First Appellate Court in R.A.No.11/2018 in and by which the Trial court has accepted the report of the Taluka Surveyor and has given shares of the parties based on the said report cannot be sustained and is set aside.
iii. Matter is remitted to the Trial Court to reconsider the matter in the light of the above legal and factual aspects of the matter within an outer limit of two months from the date of receipt of the certified copy of this order and after affording sufficient opportunity to the parties, pass appropriate order in accordance with law.
iv. Since the parties are represented by the learned counsel, they shall appear before the Trial Court on 15.02.2023 without further notice.
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v. The Trial Court shall strictly adhere to provision of Section 54 of CPC in appointing the commissioner and shall discharge the obligation itself in effecting the partition based on the report to be submitted by the competent Revenue Officer mentioned in Section 54 (Karnataka Amendment) of the CPC.
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JUDGE KGK: till para 13, RH: from para 14 to end List No.: 1 Sl No.: 51