Karnataka High Court
Kallappa Balappa Deshnur, vs Shattu Yallappa Deshnur, on 22 February, 2018
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
REGULAR SECOND APPEAL No.100104/2015 (FDP)
C/W
CIVIL REVISION PETITION NO.100009/2016
IN RSA No.100104/2015
BETWEEN:
SHRI. KALLAPPA BALAPPA DESHNUR,
SINCE DECEASED BY HIS LRS.
SMT. YAMANAWWA W/O KALLAPPA DESHNUR
SINCE DECEASED BY HER LRS.
1. SRI. BABU @ BALU KALLAPPA DESHNUR
AGE: 74 YEARS, OCC: AGRICULTURE,
R/O. 645, MATH GALLI, KANABARGI-590016,
TALUKA & DIST: BELAGAVI.
2. RAMU BALAPPA DESHNUR
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O. 645, MATH GALLI, KANABARGI-590016,
TALUKA & DIST: BELAGAVI.
3. FAKIRAWWA W/O HONNAPPA KARENNAVAR
AGE: 74 YEARS, OCC: AGRICULTURE, R/O. 645,
KANABARGI-590016, TALUKA & DIST: BELAGAVI.
4. SIDDUBAI W/O VITHAL DESHNUR @ EMMIKAR
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O. DESHNUR-591147,
TALUKA: BAILHONGAL, DIST: BELAGAVI
5. KRISHNABAI W/O GOPAL DESHNUR @ EMMIKAR
AGE: 64 YEARS, OCC: AGRICULTURE,
2
R/O. DESHNUR VILLAGE-591147,
TALUKA: BAILHONGAL, DIST: BELAGAVI.
...APPELLANTS
(By SRI. MRUTYUNJAY TATA BANGI, ADV.)
AND:
SHATTU YALLAPPA DESHNUR,
SINCE DECEASED BY HIS LRS.
FAKIRAWWA W/O SHATTU DESHNUR
SINCE DECEASED BY HER LRS.
BHARMA SHATTU DESHNUR,
SINCE DECEASED BY HIS LRS.
1. LAXMIBAI W/O BHARMA DESHNUR
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O. GOKAK ROAD, KANABARGI-590016
TALUKA & DIST: BELAGAVI
2. SIDRAI BHARMA DESHNUR
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O. GOKAK ROAD, KANABARGI-590016
TALUKA & DIST: BELAGAVI
3. YALLAPPA BHARMA DESHNUR
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O. GOKAK ROAD, KANABARGI-590016
TALUKA & DIST: BELAGAVI
4. SAGAR BHARMA DESHNUR
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O. GOKAK ROAD, KANABARGI-590016
TALUKA & DIST: BELAGAVI
5. BASAWA W/O LAXMAN PATIL
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O. MARANHOL-591254,
TALUKA: HUKERI, DIST: BELAGAVI
6. MALLAWA W/O PARASHURAM GODGERI
AGE: 30 YEARS, OCC: AGRICULTURE,
3
R/O. BALEKUNDRI B.K.-591103,
TALUKA & DIST: BELAGAVI
7. SHIDRAYI SHATTU DESHNUR
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O. GOKAK ROAD,
KANABARGI-590016
TALUKA & DIST: BELAGAVI
8. YELLAPPA SHATTU DESHNUR
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O. MATH GALLI, KANABARGI-590016
TALUKA & DIST: BELAGAVI
9. SHIDDUBAI W/O YESHWANT PATIL
AGE: 72 YEARS, OCC: HOUSEHOLD,
R/O. MASAGOUDANHATTI,
POST DHAMANE-591175,
TALUKA & DIST: BELAGAVI
SAVITRIBAI W/O SHIDAPPA PATIL
SINCE DECEASED BY HER LRS
10. GAVADU SHIDAPPA PATIL
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O. MARANHOL-591254,
TALUKA: HUKERI, DIST: BELAGAVI
11. LAXMAN SHIDAPPA PATIL
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O. MARANHOL-591254,
TALUKA: HUKERI, DIST: BELAGAVI
12. YELLAWA W/O YELLAPPA KHANAGAVI
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O. KANABARGI-590016
TALUKA & DIST: BELAGAVI
13. GANGUBAI D/O SHATTU DESHNUR
AGE: 67 YEARS, OCC: HOUSEHOLD,
R/O. KANABARGI-590016
TALUKA & DIST: BELAGAVI
4
14. IRAPPA RAMA DESHNUR
SINCE DECEASED BY HIS LRS.
YELLAPPA IRAPPA DESHNUR
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. MATH GALLI,
KANABARGI-590016 TALUKA & DIST: BELAGAVI
15. SIDDAPPA IRAPPA DESHNUR
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O. MATH GALLI, KANABARGI-590016
TALUKA & DIST: BELAGAVI
16. RAMA IRAPPA DESHNUR
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O. MATH GALLI, KANABARGI-590016
TALUKA & DIST: BELAGAVI
17. NARAYAN IRAPPA DESHNUR
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O. MATH GALLI, KANABARGI-590016
TALUKA & DIST: BELAGAVI
18. SUSHA W/O BABU GUJANAR
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O. KEDNUR-591143,
TALUKA & DIST: BELAGAVI
... RESPONDENTS
(By SRI. GANGADHAR S HOSAKERI, ADV. FOR C/R8)
(BY SMT. P.G. NAIK, ADVS. FOR R-14 TO 18)
(R1, 2, 4, 6, 7, 9, 13-SERVED) (R3 & R12-DISMISSED)
(R5, 10 & 11-SERVICE HELD SUFFICIENT)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMETN AND DECREE DATED 11.11.2014
PASSED IN RA NO.779/2009 (OLD 29/2004) ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-I AND ADDL. DISTRICT
AND SESSIONS JUDGE, BELAGAVI DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 7.11.2003
AND THE DECREE PASSED IN FDP 16/1981 ON THE FILE OF THE
ADDL. CIVIL JUDGE, (JR.DN.) BELGAUM, DECREEING THE SUIT.
5
IN CRP NO.100009/2016
BETWEEN:
SRI.KALLAPPA BALAPPA DESHANOOR,
SINCE DECEASED BY LRS
SMT.YAMANAWWA KALLAPPA DESHANOOR,
SINCE DECEASED BY LRS.
1. SRI.BABU @ BALU S/O KALLAPPA DESHANOOR
AGED ABOUT 75 YEARS,OCC: AGRICULTURE,
R/AT KANABARAGI,
TALUAK & DISTRICT: BELAGAVI.
2. SRI.RAMU S/O KALLAPPA ODESHANOOR,
AGED ABOUT 68 YEARS,
OCC: AGRICULTURE, R/AT KANABARAGI,
TALUAK & DISTRICT: BELAGAVI.
3. SMT.FAKIRAWWA W/O OHONNAPPA KARENNAVAR,
AGED ABOUT 75 YEARS,
OCC: AGRICULTURE,
R/AT CHAVAT GALLI, KANABARAGI,
TALUK & DISTRICT: BELAGAVI.
4. SMT.SIDDUBAI W/O VITHAL YEMMIKAR,
AGED ABOUT 61 YEARS, OCC: AGRICULTURE,
R/AT CHAVAT GALLI, KANABARAGI,
TALUK & DISTRICT: BELAGAVI.
5. SMT.KRISHNABAI W/O GOPAL YEMMIKAR
AGED ABOUT 65 YEARS,
OCC: AGRICULTURE, R/AT DESHANOOR,
TALUK: BAILHONGAL, DISTRICT: BELAGAVI.
...PETITIONERS
(BY SRI. MRUTYUNJAY TATA BANGI, ADV.)
AND:
1. SRI.YALLAPPA S/O SHATTU DESHANOOR,
AGED ABOUT 61 YEARS,
OCC: PENSIONER AND AGRICULTURE,
R/AT KANABARGI,
6
TALUK & DISTRICT: BELAGAVI.
SRI.SHATTU IOYALLAPPA ODESHANOOR,
SINCE DECEASED BY LRS,
2. SRI.SIDARAI S/O SHATTU DESHANOOR,
AGED ABOUT 50 YEARS,
OCC: AGRICULTURE,R/AT KANABARAGI,
TQ & DIST: BELAGAVI.
3. SMT.SIDDUBAI W/O YASHAWANT PATIL,
AGED ABOUT 72 YEARS, OCC: AGRICULTURE,
R/AT KANABARAGI, TQ & DIST: BELAGAVI.
4. SMT.YALLAWWA YALLAPPA KHANAGAVI,
AGED ABOUT 71 YEARS, OCC: AGRICULTURE,
R/AT KANABARAGI, TQ & DIST: BELAGAVI.
5. SMT.GANGUBAI D/O SHATTU DESHANOOR,
AGED ABOUT 68 YEARS,
OCC: AGRICULTURE,
R/AT KANABARAGI,
TQ & DIST: BELAGAVI.
SRI.BHARMA S/O SHATTU DESHANOOR,
SINCE DECEASED BY LRS,
6. SMT. LAXMIBAI BHARMA DESHANOOR,
AGED ABOUT 66 YEARS,
OCC: AGRICULTURE,
R/AT KANABARAGI,
TQ & DIST: BELAGAVI.
7. SRI.SIDRAI S/O BHARMA DESHANOOR,
AGED ABOUT 43 YEARS,
OCC: AGRICULTURE,
R/AT KANABARAGI,
TQ & DIST: BELAGAVI.
8. SRI.YALLAPPA S/O BHARMA DESHANOOR,
AGED ABOUT 39 YEARS,
OCC: AGRICULTURE,
R/AT H.NO.922, GOKAK ROAD, KANABARAGI,
TQ & DIST: BELAGAVI.
7
9. SRI.SAGAR S/O BHARAMA DESHANOOR,
AGED ABOUT 29 YEARS,
OCC: AGRICULTURE,
R/AT H.NO.922,
GOKAK ROAD, KANABARAGI,
TQ & DIST: BELAGAVI.
10. SMT.BASAVVA LAXMAN PATIL,
AGED ABOUT 46 YEARS,
OCC: AGRICULTURE, R/AT MAARANHOL,
TQ: HUKKERI, DIST: BELAGAVI.
11. SMT.MALLAWWA PARASHURAM GODAGERI,
AGED ABOUT 23 YEARS,
OCC: HOUSEHOLD WORK,
R/AT LAXMI IGALLI,
PANT-BALEKUNDRI,
TQ AND DIST: BELAGAVI.
SMT.SAVITRIBAI W/O SHIVAPPA PATIL,
SINCE DECEASED BY LRS,
12. SRI.GAVADU S/O SHIVAPPA PATIL,
AGED ABOUT 40 YEARS,
OCC: AGRICULTURE,
R/AT MAARANHOL,
TQ AND DIST: BELAGAVI.
13. SRI.SIDDAPPA SHIVAPPA PATIL,
AGED ABOUT 38 YEARS,
OCC: AGRICULTURE,
R/AT MAARANHOL,
TQ AND DIST: BELAGAVI.
14. SRI.LAXMAN SHIVAPPA PATIL,
AGED ABOUT 35 YEARS,
OCC: SERVICE,
R/AT MAARANHOL,
TQ AND DIST: BELAGAVI.
15. SMT.BAGUBAI BAYAPPA HATWADKAR,
AGED ABOUT 32 YEARS,
OCC: HOUSEHOLD WORK,
8
R/AT KOUJALGI , TQ: CHANDGAD,
DIST: KLHAPUR,MAHARASTRA.
SRI.IRAPPA RAMA DESHANOOR,
SINCE DECEASED BY LRS,
16. SRI. YALLAPPA IRAPPA DESHANOOOR,
AGED ABOUT 56 YEARS,
OCC: AGRICULTURE,
R/AT MATH GALLI, KANABARAGI,
TQ AND DIST: BELAGAVI.
17. SRI.SIDDAPPA YALLAPPA DESHANOOR,
AGED ABOUT 45 YEARS,
OCC: AGRICULTURE,
R/AT MATH GALLI, KANABARAGI,
TQ AND DIST: BELAGAVI.
18. SRI.RAMA IRAPPA DESHANOOR,
AGED ABOUT 51 YEARS,
OCC: AGRICULTURE,
R/AT GOOKAK ROAD,
KANABARAGI,
TQ AND DIST: BELAGAVI.
19. SRI.NARAYAN IRAPPA DESHANOOR,
AGED ABOUT 43 YEARS,
CC: AGRICULTURE,
R/AT GOKAK ROAD, KANABARAGI,
TQ AND DIST: BELAGAVI.
20. SMT.SUSHA W/O BABU GUJANUR,
AGED ABOUT 46 YEARS,
OCC: HOUSEHOLD WORK,
R/AT KEDANUR,
TQ AND DIST: BELAGAVI.
... RESPONDENTS
(By SMT P G NAIK, ADV. FOR R16, 18 & 19)
(R1, 2, 6, 7, 8, 9, 10, 11, 17 & 20-SERVED)
(R3, 4, 5, 12, 13, 14, 15-S/H/S)
THIS CRP FILED UNDER SEC.115 OF CPC, PRAYING TO SET
ASIDE THE ORDER PASSED BY THE I ADDITIONAL CIVIL JUDGE
AND JUDICIAL MAGISTRATE FIRST CLASS BELAGAVI DATED
9
7.9.2015 IN E.P.NO.921 OF 2015 AND DISMISS THE EXECUTION
PETITION BY ALLOWING THE PRESENT REVISION PETITION IN
THE INTEREST OF JUSTICE AND EQUITY.
THE APPEAL AND PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section 100 of CPC challenging the judgment and decree passed in RA No.779/2009 (Old No.29/2004) dated 11.11.2014 on the file of the Presiding Officer, FTC-I and District and Sessions Judge, Belagavi, whereby the appeal preferred by the appellants herein has been dismissed confirming the order passed in FDP No.16/1981 dated 7.11.2003 by the I Addl. Civil Judge (Jr.Dn.), Belagavi.
2. One Sri. Yallappa was the propositus of the properties in question. Yallappa had two sons namely Rama and Shattu. Rama had one son by name Irappa. Irappa's children are respondent Nos.14 to 18, whereas Shattu's branch is represented by respondent Nos.1 to 13. Yallappa had one brother by name Balappa. Balappa's 10 son Kallappa had filed OS No.74/1965 against the defendants seeking partition and separate possession of the properties in question, which came to be dismissed. However, it was held that defendant No.2 namely, Shattu was entitled to half share in the suit land. Aggrieved by the same, Kallappa had filed RA No.570 of 1966.
3. It is the case of the appellants that dispute was settled between the parties to R.A.No.570/1966 at the intervention of the elders and family and as per family arrangement Kallappa was allotted Sy.No.107 and 2 acres in Sy.No.252 and Shattu was allotted Sy.No.75 and 2 acres in Sy.No.252 and Irappa S/o Ramappa was allotted Sy.No.369 and 3 acres 2 guntas in Sy.No.252 of Kanabaragi village in Belagavi District. Varadi was given effecting the mutation in terms of the family settlement, which was certified in ME No.3427 and the entries were effected and the names of the respective parties came to be entered in the record of rights. In view of the family 11 settlement and revenue records being mutated, the said Kallappa, appellant in RA No.570/1966 filed a memo before the lower appellate Court and the appeal came to be withdrawn. It transpires that on 07.06.1972, Shattu instituted a suit in OS No.259 of 1972 for partition and separate possession, which came to be dismissed. Regular appeal filed against the said judgment and decree also came to be dismissed in RSA No.156/1978 confirming the judgment and decree passed in OS No.259/1972. Pursuant to which, FDP No.16 of 1981 had been filed, which came be allowed by accepting the report of the Advocate Commissioner to measure and divide the landed properties. Aggrieved by the order passed in FDP No.16 of 1981, RA No.779 of 2009 was preferred by the appellants herein, which came to be dismissed. Hence, this second appeal.
4. Learned counsel Sri. Mrutyunjay Tata Bangi, appearing for the appellants would submit that the Courts 12 below failed to appreciate the legal aspects of the matter in a right perspective. FDP Court appointed an advocate as the Court Commissioner, as per the Karnataka Amendment to Section 54 of CPC, whereunder, partition in respect of agricultural land shall be effected by a competent officer not below the rank of Tahasildar. Appointment of an advocate as the Court Commissioner to divide the properties is opposed to Section 54 of CPC. Hence, the Trial Court ought not to have accepted the report of the Commissioner. The lower appellate Court without appreciating the error committed by the trial Court confirmed the said judgment and decree. Secondly, it was submitted that as regards the factual aspects, the Courts below failed to note that the predecessor of respondent Nos.1 to 13 had filed in OS No.259/1972 for partition and separate possession. The court dismissed the suit confirming the family arrangement affected and same came to be confirmed by the lower appellate Court in RA No.234/1975. In view of the same, no executable 13 decree was passed in favour of the plaintiff--Shattu in O.S.No.259/1972. Nextly, it is contended that by virtue of the family settlement arrived at between the parties, revenue records were mutated and the appellants herein came into possession of certain items of the suit schedule properties and as on the date they are in possession of the suit schedule properties.
5. The learned counsel in support of his submission placed reliance on the judgment of the Hon'ble Apex Court in the case of M.L.Subbaraya Setty (Dead) by Lrs. And others Vs. M.L.Nagappa Setty (Dead) by Lrs. And Others reported in AIR 2002 SC 2066.
6. The appellants are the petitioners in CRP.No.100009/2016 where they have challenged the order passed by the Principal Civil Judge Jr.Dn. and JMFC, Belagavi dated 07.09.2015 in Ex.No.921/2015 on the ground that the execution Court without providing an opportunity of hearing to the appellants herein proceeded 14 to close the execution petition despite the appellants are in possession of the suit property and standing crops were present at the time of the Commissioner submitting his report.
7. Learned counsel Sri.Gangadhar S.Hosakeri appearing for respondent No.8 and Smt.P.G.Naik appearing for respondent Nos.14 to 18 in RSA No.100104/2015 would submit that O.S.74/1965 filed by Kallappa was dismissed on 06.09.1966 and it was held that Shattu and Irappa are entitled for half share in the suit property. By virtue of the decree passed in O.S.No.74/1965, Shattu's branch and Irappa's branch are entitled to half share in the suit property. It is submitted that though R.A.No.779/2009 was preferred by the appellants herein, the same came to be dismissed, with a specific finding by the lower appellate Court that there was no family arrangement between the parties to the proceedings. It is submitted that this Court in 15 CRP.No.2664/1981 filed by the appellants herein has categorically observed that "defendant No.2 in O.S.No.74/1965 is entitled to half share being undisputed, the second round of litigation started by Shattu-respondent No.1 has proved unsuccessful. There is no stay at all in RSA No.156/1978 and that respondent No.1 has lost the suit in O.S.No.259/1972 and failed in R.A.No.234/1975. When there is no stay in RSA No.156/1978, the decree passed in O.S.No.74/1965 remain intact. If the present Lrs have got any right and if their shares are declared anywhere else in any suit they may approach the Deputy Commissioner. But the same do not come in the way of executing the decree in O.S.No.74/1965." Further, in RSA No.156/1978 dated 17.08.1987 this Court has held that there is nothing to be executed in O.S.No.259/1972 and there is no executable decree at all. In view of the decree passed in O.S.No.74/1965, respondents preferred FDP No.16/1981. In the said proceedings, appellants herein objected for 16 appointment of a Court Commissioner. Considering the objections and overruling the same in view of Section 54 of CPC Karnataka Amendment, the Court Commissioner, an advocate was appointed and the same was accepted. Further, in the execution Court ample opportunity was provided to the appellant to put forth their objections. After hearing the appellant, the Court proceeded to execute the warrant and accordingly, the execution petition came to be closed, after the delivery warrant was executed and possession handed over to the respondents pursuant to deposit of Rs.10,000/- towards standing crops. Thus, appellants having no title or interest over the suit properties by virtue of the judgment and decree passed in O.S.No.74/1965, the objections raised by the appellants in FDP case and the executing Court is unjustifiable. The appellants have no locus to challenge the order impugned herein more particularly, when this Court in CRP No.2664/1981 has categorically held that the judgment and decree passed in O.S.No.74/1965 17 remains intact. The same having not been challenged by the appellants they cannot question the legality and correctness of the order impugned.
8. I have given my thoughtful consideration to the arguments advanced at the bar and perused the material on record.
9. The undisputed facts are that, the original plaintiff Kallappa had instituted O.S.No.74/1965 for partition and separate possession against the respondents herein, which came to be dismissed and Shattu and Irappa were granted half share each. Further, the appeal filed by the original plaintiff Kallappa came to be dismissed as withdrawn. It is the argument of the learned counsel for the appellants that there was a family settlement entered into between the parties, pursuant to which mutation was effected and accordingly, the appellants were in possession of the suit property, as such, memo was filed seeking withdrawal of the appeal. To substantiate this 18 argument, no material evidence is placed on record by the appellants to accept the ipse dixit statement of the appellants. In the absence of any satisfactory evidence available on record, the say of the appellants that there was a family settlement between the parties and as such, mutation was effected and as such, appeal came to be dismissed as withdrawn cannot be accepted. It is well settled principle of law that the revenue records cannot confer any title to the property. Mere change in the mutation entry would not entitle the original plaintiff to claim property rights as absolute owner of the property. It is significant to note that withdrawal of R.A.No.570/1966 was not supported with the partition effected in the family. It was a withdrawal simpliciter.
10. The dismissal of R.A.No.570/1966 filed by the original plaintiff having reached finality, judgment and decree in O.S.No.74/1965 has reached finality. The subsequent proceedings instituted by Shattu by filing 19 O.S.No.259/1972 and dismissal of the same would not come to the assistance of the appellants to contend that they have a right over the suit property. It is further clarified in R.A.No.234/1975 filed by Shattu against the judgment and decree passed in O.S.No.259/1972 that there was no such family settlement entered into between the parties. Though on merits of the case, RSA No.156/1978 filed by Shattu has been dismissed, the finding of the lower appellate Court in R.A.No.234/1975 as regards no family settlement entered into between the parties has not been disturbed. It is pertinent to note that, In CRP No.2664/1981 filed by the appellants herein challenging the order dated 17.07.1981 passed by the Prl.Munsiff, Belgaum in Execution Case No.22/80 overruling the objections of the legal representatives of the judgment-debtor relating to O.S.No.74/1965, this Court has categorically observed that the judgment and decree passed in O.S.No.74/1965 remains intact. If the LR's of original plaintiff Kallappa have got any right and if their 20 shares are declared anywhere else in any suit they may approach the Deputy Commissioner. But that do not come in the way of executing the decree in O.S.No.74/1965. Pursuant to which, Shattu branch have preferred FDP No.16/1981. It is the grievance of the appellants herein that FDP Court grossly erred in appointing an advocate as the Court Commissioner contrary to Section 54 of CPC. Karnataka Amendment to Section 54 of CPC reads thus:
"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 Tahsildar or such other person as the Court may appoint as Commissioner in that behalf."
(emphasis supplied) 21
11. The amendment effected by Karnataka Act No.36 of 1998, w.e.f. 01.02.2001 makes it clear that, 'such other person as the Court may appoint as Commissioner in that behalf' is competent to carryout the commission work in terms of Section 54 of CPC. This provision came up for judicial scrutiny before the learned single Judge of this Court in the case of Lagama Beerasidda Pujeri Vs Khanappa Malakari Kotre and Others reported in 2016(4) KCCR SN 504, whereby this Court has held thus:
"In case the Civil Court decides not to call for the report of a Revenue Officer, then a second option has been given to the Court Commissioner, and such a person to be appointed, can be any other person as the Court may appoint as the Commissioner. Thus, it is not necessary that "such other person" has to be either of the rank of Tahasildar, or above the said rank. In fact, it is not even necessary that such other person needs to have any connection with the revenue office. The words "such other person" would have to be interpreted in wide amplitude, for the simple reason, the Court is appointing "such other person"
as the Court Commissioner. Therefore, the Court 22 should be given the power to appoint a person in whom it has faith as its Commissioner and to call for his/her report. In Section 54 CPC, a string of words specifically does not proceed the general word at the end. Therefore, the said rule is clearly inapplicable to the interpretation of the said Section as amended by the State of Karnataka. Moreover, the provision given an alternative choices to the Court: either to call for a report from a Revenue Officer, not below the rank of Tahsildar, or from such other person whom the Court appoints as a Court Commissioner. In case of alternatives, the rule of ejusdem generis is inapplicable. Furthermore, there is no genus which can be apprehended from the preceding words. Therefore, the rule of ejusdem generis cannot be applied to Section 54 of CPC."
12. The words "such other person" would have to be interpreted in wide amplitude since appointment of "such other person" as the Court Commissioner is by the Court. The power is vested with the Court to appoint a person in whom there is trust and faith to get the commission report.
23
13. Option is given to the Court either to call a report from the Revenue Officer, not below the rank of Tahsildar or such other person as the Court may appoint as Commissioner to effect execution of decree for partition or separation of share. The choice/option is left to the discretion of the Court to choose the modes or options provided for appointment of a Commissioner. Absolutely there is no bar for the Court to appoint an advocate as a Commissioner under Section 54 of CPC. 'Such other person' in the legal sense includes an advocate also. Merely the person appointed by the Court is an advocate by profession cannot disentitle him to be qualified as a Court Commissioner under Section 54 of CPC, as long as there is no express exclusion carved out by the legislature under Section 54 of CPC. Hence, the argument advanced at the hands of the learned counsel for the appellants is wholly misconceived and the same deserves to be negated. 24
14. Even otherwise, the appellants are not aggrieved persons to challenge the judgment and decree impugned herein for the reason that FDP proceedings are instituted pursuant to the preliminary decree passed in O.S.No.74/1965 whereby admittedly, the original plaintiff has lost the legal battle and the same has been observed to be intact in CRP No.2664/1981 by this Court. By virtue of the observations made by this Court in CRP No.2664/1981, the case of the appellants has become still worse. In such circumstances, the appellants filing objections to FDP proceedings and challenging the same is nothing but dilatory tactics played by them to protract the proceedings in order to deny the decree holders to reap the fruits of the decree passed in O.S.No.74/1965. It is apparent that the decree holders are struggling to get the decree executed and to enjoy the fruits of decree since 06.09.1966. It is hardly required to be stated that the Courts must take judicial note of the decree passed by the Courts and support the execution of the same in 25 accordance with law. Any challenge on hyper - technical grounds which are not fatal to the execution of the decree, requires to be ignored to meet the ends of justice. The parties are fighting the litigation for more than five decades.
15. The contention of the appellants that even in the execution petition, no opportunity was provided for them to put-forth their arguments is also contrary to the records. It is discerned that on the application filed by the appellants on 04.08.2015 to recall the order dated 28.06.2015 and to give opportunity to the parties, the detailed order was passed on 24.08.2015 on IA No.1 rejecting the application. Hence, the contention of the appellants that no opportunity of hearing provided is contrary to the records and the same has to be rejected.
16. For the aforesaid reasons, this Court do not find any valid ground to interfere with the impugned judgment and decree/order of the Courts below, the same being not 26 vitiated by law under any score. No substantial question of law arises for consideration.
17. Accordingly, second appeal as well as revision petition stand dismissed.
In view of dismissal of the appeal as well as revision petition, all pending IAs are consigned to file.
(Sd/-) JUDGE JTR/MBS