Karnataka High Court
Shreeshail S/O Yallappa Ghalappanavar vs Basavaraj S/O Yallappa Ghalappanavar on 29 January, 2025
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NC: 2025:KHC-D:1817-DB
RFA No. 100498 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 29TH DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 100498 OF 2024 (FDP)
BETWEEN:
SHREESHAIL S/O. YALLAPPA GHALAPPANAVAR,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O. MENSINKAI ONI, MANGALWARPETH,
DHARWAD-580001.
...APPELLANT
(BY SRI. V. M. SHEELVANT, ADVOCATE)
Digitally signed by
MOHANKUMAR B AND:
SHELAR
Location: High
Court of 1. BASAVARAJ S/O. YALLAPPA GHALAPPANAVAR,
Karnataka,
Dharwad Bench
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O. MENSINKAI ONI,
MANGALWARPETH, DHARWAD-580001.
2. SMT. SUMANGALA W/O. VIKAS HEBBALLI,
AGE: 34 YEARS, OCC: HOUSEWIFE,
R/O. MENSINKAI ONI, MANGALWARPETH,
DHARWAD-580001.
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NC: 2025:KHC-D:1817-DB
RFA No. 100498 of 2024
3. SMT. BASAVANNEVVA
W/O. YALLAPPA GHALAPPANAVAR,
AGE 59 YEARS, OCC HOUSEHOLD,
R/O. MENSINKAI ONI, MANGALWARPETH,
DHARWAD-580001.
SMT. SIDDAWWA W/O. CHANNABASAPPA
GHALAPPANAVAR, (SINCE DECEASED BY
HIS LR'S ALREADY ON RECORD).
4. GANGAWWA W/O. NINGAPPA SALAKI,
AGE 79 YEARS, OCC: HOUSEHOLD WORK,
R/O. MARERWAD VILLAGE,
TQ AND DIST: DHARWAD-580001.
...RESPONDENTS
(BY SRI. ARUN L. NEELOPANT, ADV. FOR R1 TO R3;
NOTICE TO R4 SERVED)
THIS RFA IS FILED U/S.96 READ WITH ORDER 41 RULE 1
OF CPC., PRAYING TO CALL FOR THE RECORDS, ALLOW THE
APPEAL AND SET ASIDE THE DECREE DATED 04.11.2024
PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM,
DHARWAD IN FDP NO.20/2015 AND THE FDP BE DISMISSED
AS NOT MAINTAINABLE IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2025:KHC-D:1817-DB
RFA No. 100498 of 2024
CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) Respondent No.1 in FDP No.20/2015 on the file of the I Additional Senior Civil Judge and CJM Dharwad has preferred this Regular First Appeal against the order passed in the said FDP No.20/2015 dated 04.11.2024 to draw final decree as per the report submitted by both the Court Commissioners.
2. The suit in O.S.No.66/2010 was filed for the relief of partition and separate possession and it was decreed. Thereafter, the plaintiffs filed final decree proceedings in FDP No.20/2015 for drawing up of the final decree. The trial court appointed the ADLR as Court Commissioner for division of the agricultural lands and also appointed the Advocate Court Commissioner for division of the house properties. It appears that the ADLR -4- NC: 2025:KHC-D:1817-DB RFA No. 100498 of 2024 deputed the Taluk Surveyor for measurement and partition the properties, in accordance with the preliminary decree. Accordingly, the Taluk Surveyor issued notice and in the presence of the parties to the proceedings measured the property and gave report to the ADLR and thereafter, the ADLR submitted the same report to the court.
3. The Advocate Court Commissioner also visited the suit house property and measured the property and gave the report. The Advocate Court Commissioner assessed market value of the property on the basis of the opinion given by the panchas, who were present at the time of measurement of the property.
4. Respondent No.1 filed objections to the report of the Court Commissioner before the trial court. The trial court after considering the contentions of both the parties, overruled the objections of respondent No.1 and ordered to draw the final decree in terms of the report of the Court Commissioners. Accordingly, the impugned final decree was passed.
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NC: 2025:KHC-D:1817-DB RFA No. 100498 of 2024
5. Being aggrieved by the same, respondent No.1 preferred this appeal.
6. We have heard the arguments of the learned counsels appearing for both side parties.
7. Learned counsel for the appellant contends that the trial court has appointed the ADLR as Court Commissioner for measurement of the property and division of the agricultural lands and submit the report. Contrary, to the said directions, the ADLR delegated said task to Taluk Surveyor. The said Taluk Surveyor measured the suit property and submitted the report to ADLR. The ADLR submitted the said report to the court. The trial court did not look into the said aspect and blindly accepted the report submitted by the ADLR. The ADLR has no authority to delegate the power given by the court to his subordinate. In view of the same, the said report is not tenable.
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NC: 2025:KHC-D:1817-DB RFA No. 100498 of 2024
8. The learned advocate for appellant further contends that the Advocate Court Commissioner instead of assessing the market value of the house properties independently, took the assistance of the panchas, who were present at the time of execution of the commission work and on the basis of their opinion, valued the suit property. The said procedure followed by the Advocate Court Commissioner is also incorrect. On the basis of the said incorrect reports, the learned trial Judge has drawn the final decree without considering these facts. Hence, it is not tenable and needs to be set aside.
9. The learned counsel for the respondents contends that the court has appointed the ADLR as Court Commissioner for measurement and division of the property. The ADLR had taken the assistance of the Taluk Surveyor to measure the property. The Taluk Surveyor measured the suit property, prepared the map and submitted the report to the ADLR. On the basis of the said report, the ADLR has submitted his final report to the -7- NC: 2025:KHC-D:1817-DB RFA No. 100498 of 2024 court. Therefore, he has not delegated his power to the Taluk Surveyor.
10. The learned advocate for respondents further submits that the Advocate Court Commissioner on the basis of the opinion of the panchas, who were present at the time of measurement of the property, assessed the market value of the house properties. Panchas are residents of said locality and fit persons to assess the value of the lands. In this case, there are two house properties and could be divided between the parties to the litigation. Respondents are entitled for 3/4th share in the house property. The appellant is entitled for 1/4th share. Out of the four parts prepared by the Advocate Court Commissioner, appellant can take any one of the portion as their share. Valuation of the property is not material in this case. Market value of the property required to be divided is to be assessed only in the cases where property could not be divided by metes and bounds. Therefore, finding on this fact and accepting the report of the -8- NC: 2025:KHC-D:1817-DB RFA No. 100498 of 2024 Advocate Court Commissioner by the trial court is tenable. Therefore, he prays to dismiss the appeal.
11. Perused the records and considered the submission of the learned counsels for the parties.
12. The point that would arise for our consideration is;
"Whether the learned trial judge erred in accepting the report of commissioners in drawing 'Final Decree?"
Whehter the report of the Court Commissioner suffers from defects?
What order?
13. Our findings on the above point Nos.1 and 2 in the affirmative for following reasons.
14. On perusal of the material placed on record and the trial court records, it is borne out that the trial court has appointed the ADLR as Court Commissioner for -9- NC: 2025:KHC-D:1817-DB RFA No. 100498 of 2024 measurement and division of agricultural lands mentioned in the preliminary decree. Similarly, appointed Advocate as a Court Commissioner for measurement of the house properties mentioned in the preliminary decree. It appears that the ADLR delegated his duty of Court Commissioner to the Taluk Surveyor, to issue notice and in the presence of the parties measure the property and submit the report. Accordingly, the Taluk Surveyor issued a notice and in the presence of the parties to the proceedings, measured the properties mentioned in the preliminary decree. The Taluk Surveyor partitioned the properties as per the preliminary decree and forwarded the said report to the ADLR. Thereafter, ADLR submitted very same report of the Taluk Surveyor with his covering letter to the court.
15. Looking to the records, the actual commission work was executed by the Taluk Surveyor and not by the ADLR. Undisputedly, the Taluk Surveyor was not appointed by the court as a Court Commissioner for partition of the agricultural lands. As per Order 26 of Code of Civil
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NC: 2025:KHC-D:1817-DB RFA No. 100498 of 2024 Procedure, the court appoints Court Commissioner as an officer of the court to do certain acts and such acts done by the Commissioner, is as good as acts of the court. Under such circumstances, the Court Commissioner himself was delegated to do certain acts personally or under his personal supervision. He has no authority to re- delegate work assigned to him by the court. Any such acts of the Court Commissioner would be illegal. The ADLR has not done the work for which he was appointed as a Court Commissioner and without the permission of the Court, he got it done through his subordinate. Therefore, the acts done by Taluk Surveyor in executing the commission work is nothing but without any legal authority. The maxim of `delegate non-potest delegare' is applicable to this case. The ADLR has not authority to delegate work of execution of Court Commissioner work to Taluk Surveyor. The learned trial Judge did not consider these facts. Therefore accepting the said report of the Taluk Surveyor to draw final decree is erroneous. The said drawing up of final
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NC: 2025:KHC-D:1817-DB RFA No. 100498 of 2024 decree on the basis of such report is contrary to provisions of Section 54 of Code of Civil Procedure.
16. The learned counsel for the appellant relied on the orders passed learned Single Judge of this court in the following cases. This court in the case of Smt.Annapurna D/o Nagappa Godi and Others vs Smt.Shantawwa W/o Andannappa Patil and Others in RSA No.100266/2021 and in the case of Shivanna vs Gowramma and Others in RSA No.1434/2016. Both the cases learned Single Judge of this court rejected the final decree on the ground that an unauthorized person has executed the commission work without proper warrant issued by the court.
17. The learned advocate Court Commissioner submitted the commission report. He measured both the houses mentioned in the preliminary decree and submitted that measurement in his report. In the conclusion, advocate Court Commissioner noted that the said house properties cannot be partitioned by metes and bounds and
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NC: 2025:KHC-D:1817-DB RFA No. 100498 of 2024 if it is partitioned, it cannot be enjoyed conveniently by the parties. Therefore, he assessed the market value of one house as Rs.48 lakhs and another house as Rs.28 lakhs. It is contended by the learned counsel for the appellant that assessment of the value by the Court Commissioner is incorrect and not based upon any materials on record. Panchas are known persons to the respondents and for the benefit of respondents, they had given lesser market value. The Court Commissioner ought to have assessed the market value on the basis of guideline market value of the Sub-Registrar. Therefore, the said report is also incorrect.
18. The learned counsel for the respondents contended that there are two houses in the suit property. Assessment of market value of the property on the basis of opinion of panchas is not incorrect. Moreover, in the present case, even house property could be divided by metes and bounds and a share could be allotted to party
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NC: 2025:KHC-D:1817-DB RFA No. 100498 of 2024 to the proceedings. Therefore, assessment of market value is immaterial.
19. The submission of learned advocate for respondents mentioned above is contrary to the findings of the trial Court. The trial Court on the basis of advocate Court Commissioner's report held that, the said house properties cannot be partitioned by metes and bounds and if it is partitioned, parties to the suit cannot conveniently enjoy the property. As per the report of the Court Commissioner, one of the house property is valued at Rs.48 lakhs and another is at Rs.28 lakhs. In view of the said findings, determination of market value of the house properties is very much relevant. The guidelines value or opinion of panchas regarding market value of the property may not be real market value. Either it may be much more or less than the said value. Therefore the trial Court could have called upon the parties to quote the market value of the property and among the parties whosoever quotes highest value, be permitted to purchase the same.
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NC: 2025:KHC-D:1817-DB RFA No. 100498 of 2024 In the event, if both the parties are not willing to purchase, then it has to be sold in the public auction, so that, whosoever bids highest amount can purchase it and the said sale price could be apportioned. The trial Court did not ascertain as to whether the opinion of the Court Commissioner that if the property is divided, then it could not be enjoyed conveniently is acceptable view or not and considering the said facts, if the said view of Court Commissioner is acceptable, then the trial Court could have asked the parties to ascertain the same and decide the market value on either of the modes referred above or in any other way decide the market value and dispose of the said property in accordance with law. Under these circumstances, the findings of the trial Court regarding assessment of the market value on the basis of the Court Commissioner's report is also not tenable. Therefore, final decree drawn by the trial Court basing on the said report is also calls for interference by this Court.
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20. For the aforesaid discussions, we answer point Nos.1 and 2 in the affirmative and proceed to pass the following :
ORDER
i) The appeal is allowed in part.
ii) The impugned final decree drawn by the trial court in FDP No.20/2015 dated 04.11.2024 is set aside and matter is remanded to the trial Court for reconsideration of the same.
iii) The trial Court is directed to redirect the ADLR to execute the commission work personally by taking the assistance of his subordinates and execute the commission work in accordance with law, within a period of two weeks and submit a report.
iv) The trial Court shall consider as to whether house properties could be partitioned by metes and bounds. If so, pass decree accordingly.
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v) In case, if house properties cannot be portioned by metes and bounds then,
(a) Direct both the parties to furnish materials to assess the market value and ascertain the same. Either of the parties be given an option to purchase the same and other parties be compensated in terms of money. If both the parties do not agree to purchase, the same be sold in public auction and amount be disbursed in terms of preliminary decree.
vi) The trial Court shall expeditiously dispose of the final decree proceedings.
vii) The registry is directed to send back the TCR to the trial Court along with copy of this judgment.
viii) Both the parties are directed to appear before the trial Court on 24.02.2025 without waiting for notice from the Court.
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NC: 2025:KHC-D:1817-DB RFA No. 100498 of 2024 In view of disposal of the appeal, all the pending IA's, if any, do not survive for consideration and they stand disposed of.
Sd/-
(ASHOK S. KINAGI) JUDGE Sd/-
(UMESH M ADIGA) JUDGE MBS, BK/ct-an List No.: 1 Sl No.: 45