Karnataka High Court
C M Madaiah vs C.M.Poonacha on 7 August, 2025
Author: V Srishananda
Bench: V Srishananda
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NC: 2025:KHC:30860
RSA No. 1932 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
REGULAR SECOND APPEAL NO. 1932 OF 2021 (PAR)
BETWEEN:
C.M. MADAIAH
AGED 72 YEARS,
S/O C.T. MONNAPPA,
R/AT NELAJI VILLAGE AND POST,
MADIKERI TALUK,
KODAGU DISTRICT - 571 201.
...APPELLANT
(BY SRI. SHATHABISH SHIVANNA, ADVOCATE)
AND:
1. C.M. POONACHA
AGED 37 YEARS,
S/O C M MEDAIAH
R/AT NELAJI VILLAGE,
Digitally signed MADIKERI TALUK,
by R KODAGU DISTRICT - 571 201.
MANJUNATHA
Location: HIGH
COURT OF 2. C.M. SUKUMAR
KARNATAKA
AGED 38 YEARS,
S/O C.M. MEDAIAH
R/AT NELAJI VILLAGE
MADIKERI TALUK
KODAGU DISTRICT - 571 201.
...RESPONDENTS
(BY SRI. AKHIL ATIQ, ADVOCATE FOR R2 (ABSENT))
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NC: 2025:KHC:30860
RSA No. 1932 of 2021
HC-KAR
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 17.12.2019
PASSED IN RA.No.9/2018 ON THE FILE OF THE PRINCIPAL
DISTRICT JUDGE, KODAGU, MADIKERI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT DATED 06.03.2018
PASSED IN FDP No.07/2012 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND CJM, MADIKERI, DECREEING THE PETITION
FILED UNDER SECTION 54 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION , THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri. Shathabish Shivanna for the appellant. None appears for the second respondent.
2. First Defendant Sri. C.M. Medaiah who is the father of the plaintiff namely Sri. C.M. Poonacha is the appellant in this second appeal.
3. Facts which are at most necessary for disposal of the present appeal are as under:
The first respondent Sri. C.M. Poonacha filed a suit in O.S. No.27/2006 for partition and separate position of his -3- NC: 2025:KHC:30860 RSA No. 1932 of 2021 HC-KAR share in the suit property. Suit on contest came to be decreed.
4. To seek the partition of the suit property by metes and bounds, final decree proceedings in FDP No.7/2012 was filed In the Final Decree Proceedings, after entertaining the objections, learned Trial Judge appointed an advocate as Court Commissioner on 06.12.2012. Said advocate Court Commissioner visited the suit property by issuing notice to the parties. Parties were present when the Court Commissioner carried out the spot inspection and divided the property in the presence of the parties and prepared the panchnama and the sketch with colour codification.
5. Court Commissioner filed the report on 30.07.2016 along with revenue sketch, survey PP sheet, mahazar, notices issued to the parties and the Commission warrant.
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NC: 2025:KHC:30860 RSA No. 1932 of 2021 HC-KAR
6. Present appellant represented by his advocate filed objection stating that as per the decision of the Hon'ble Apex Court in the case of Uttam vs. sowbhag Singh, final decree proceedings for was not maintainable.
7. He also objected that Commissioner did not identify each survey number and therefore report cannot be accepted. However, for the reasons best known to the appellant did not choose to cross-examine the Court Commissioner by filing necessary application or seeking permission of the Trial Court.
8. Thereafter, arguments were heard by the learned Judge in the Final Decree Proceedings and by considered judgement dated 06.03.2018, learned Judge allowed the Final Decree Proceedings.
9. Operative portion of the Final Decree Proceedings reads as under:
"The Final Decree Proceedings filed by the petitioner is decreed.-5-
NC: 2025:KHC:30860 RSA No. 1932 of 2021 HC-KAR The Commissioner report and Sketch is part and parcel of the Final Decree.
The block No.I, V and VI allotted to the share of plaintiff. The block No.II, VII to X allotted to the share iof defendant No.1. The block No.III, IV and XI allotted to the share of defendant No.2.
In house property is concerned, 'A' part mentioned in the sketch allotted to the share of plaintiff. 'B' part allotted to the share of defendant No.1 and 'C' part allotted to the share of defendant No.2.
Draw final decree as per above on furnishing requisite stamp paper by the parties.
However, it is made clear that, if the parties have not taken possession of their respective shares in suit properties they are entitled to file execution petition to recover possession.
The parties are liberty to file another final decree proceedings in respect of item No.5 of preliminary decree i.e., Sy.No.165/4 after taking possession as per law."
10. Being aggrieved by the same, appellant herein challenged the Final Decree in R.A.No.9/2018. Learned judge in the First Appellate Court, after securing the records heard the arguments of the parties and dismissed -6- NC: 2025:KHC:30860 RSA No. 1932 of 2021 HC-KAR the appeal inter alia held in paragraph number 14 to 20 as under :
"14. It is the specific contention of the appellant/respondent-1 that the suit schedule properties are the properties going to the shares to the appellant/respondent-1 and as such, it is separate properties in which the petitioner and respondent-2 has no right whatsoever much less right to share the suit properties. It is important to note that the appellant/respondent-1 has appeared in O.S.No.27/2006 before Senior Civil Judge at Madkeri and contested the suit. After considering the evidence on record and the plea aised by the present appellant/respondent-1, decreed the suit of the plaintiff and drawn preliminary decree. It is important to note that the present appellant/respondent-1 has not challenged the said preliminary decree proceedings by preferring the appeal. The said preliminary decree has become final. Under such circumstances, the appellant/respondent-1 cannot claim at this stage that the suit schedule properties are his separate properties. He cannot take contention that the petitioner and respondent-2 have no share in the suit schedule properties. Such being the case, the said ground taken by the appellant/respondent-1 is not tenable in law.
15. The advocate for the appellant has taken another contention that sy.no.154/3 was divided into 0.73 acre + 0.73 acre+0.48 acre bits, which comes to total -7- NC: 2025:KHC:30860 RSA No. 1932 of 2021 HC-KAR 1.94 acres, but the preliminary decree shows schedule survey number as 154/3 measuring 2.60 acres and the surveyor has not identified 0.66 acres which is more than 1/4th of 2.60 acres and as such, the said judgment and final decree is not in accordance with law. I have gone through the commission report submitted by the Commissioner. Не has clearly stated that in sy.no.154/3 as per the records, it is measuring 2.60 acres, but as per the map and local inspection, it is measuring 1.95 acres and he has divided 3 equal parts in 1.96 acres in sy.no.154/03 and shown in the sketch. It is important to note that the surveyor and court commissioner have visited the spot and the parties were present on the spot and the said properties have been measured and found 1.96 acres and the same has been divided by the commissioner in three parts. Even the advocate for the petitioner and respondent-2 have argued that there was no other property in sy.no.154/3 and as such. what has been in existence the same has been divided in three parts. Though the appellant/respondent-1 has filed I.A.No.III. he has not taken such a contention in I.A. No. III. but taken contention in the Written Arguments. Even the trial Court has given liberty to file another FDP proceedings after finding out 0.66 acres in sy.no.154/3 Under such circumstances, it does not give any injustice in dividing the properties in between the petitioner and respondents. There is no any harm or injustice caused to the appellant/respondent-1. Under such circumstances, that ground does not give any room to show that the partition was not effected in accordance with law.-8-
NC: 2025:KHC:30860 RSA No. 1932 of 2021 HC-KAR
16. The appellant/respondent-1 has taken another contention that sy.no.155/1 and 164 were divided by the surveyor, but the survey could not identify 1.96 acres in sy.no.155/1 and 0.97 acre in sy.no.164. It is important to note that the appellant /respondent-1 and other parties were present on the spot and they have observed the extent of land found on the spot and the surveyor has divided the said properties. Even the learned Senior Civil Judge at Madikeri has given liberty to file another FDP proceedings if the said land is found by the parties. The advocates for the petitioner/respondent-2 have also argued and contended in their Written Arguments that the actual land found on the spot is divided by the surveyor and commissioner and that does not give any injustice or harm to the appellant/ respondent-1. When the surveyor and Commissioner did not find any such properties, it cannot be said that the division made by Commissioner and Surveyor is not in accordance with law. What land has been found on the spot in respect of sy;no.155/1 and sy.no.164, the same was divided between the parties.
17. The advocate for the appellant/respondent-1 has taken contention that the Surveyor and Commissioner have not shown the way to reach to their share of the individual lands and not shown the drainage facility and other facility in the house. It is important to note that in the preliminary decree there was no such objections raised by the parties to the proceedings. Even in the FDP proceedings the present appellant/respondent-1 has not -9- NC: 2025:KHC:30860 RSA No. 1932 of 2021 HC-KAR field any objections showing the said aspect and not contested the petition filed U/Sec. 54 of CPC. It is important to note that even the appellant/ respondent-1 though present on the spot, has not given any memo of instructions to that effect. If the sketch drawn up has been taken into consideration, the said lands have been situated on the side of the total lands and equally they got access to reach to their individual share of the lands. The petitioner or respondent-1 have not filed any memo of instructions before the Commissioner or to the Surveyor or before the Court to ascertain the way to reach to their land. If the situation of lands bifurcated in the sketch has been taken into consideration, it clearly shows that all the lands are having ways to reach to their shares. Under such circumstances, on that ground, it cannot be said that the survey of the lands done by the Commissioner and Surveyor is not in accordance with law. That ground does not defeat the rights of any other parties in the suit. Under such circumstances, that ground does not help to the appellant to show that the judgment and final decree passed by the learned Senior Civil Judge at Madikeri is suffering from any irregularities and illegalities.
18. The advocate for the appellant/respondent-1 has taken another contention that the house situated in sy.no.154/3 cannot be divided into three parts and there is no bifurcation in the said house and as such, the said partition is not in accordance with law. As against this, the advocate for the petitioner and respondent-2 have
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NC: 2025:KHC:30860 RSA No. 1932 of 2021 HC-KAR taken contention that the said house is a big house and it can be bifurcated into three parts and it can be divided in between the parties. It is important to note that it is not the duty of the Commissioner to build up wall and give possession of the properties. It is the duty of the Surveyor and Commissioner to fix the division of the properties and to ascertain whether it is divisible or not. Under such circumstances, considering the condition of the house and divisibility of the said house, the commissioner has made three parts in the said house and divided into three parts. The advocate for the appellant/respondent-1 has filed I.A. No.III and taken contention that considering the age of appellant/respondent-1 and his wife, the trial Court ought to have granted the house to full extent to her. When the preliminary decree speaks about divisibility of the said house and if the house is in a condition to divide in three parts, it cannot be allotted to one person alone. Even the division made by the trial Court and the properties shown by the Surveyor and Commissioner is done with equitability and said division is in accordance with law. Under such circumstances, the prayer made by appellant/respondent-1 prayed in I.A.No.III and in Written Arguments is not just and proper. When the properties to the suit are entitled share in the said house and the preliminary decree shows that they are entitled division in the said house, automatically when the said house is in a condition to divide in three parts, the Surveyor and Commissioner has divided the said house in three parts and the same has been allotted by learned
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NC: 2025:KHC:30860 RSA No. 1932 of 2021 HC-KAR Senior Civil Judge at Madikeri to the petitioner and respondents-1 and 2. Under such circumstances, the arguments submitted by the advocate for the appellant/respondent-1 and the prayer sought in the LA.No.III is not acceptable one. On this ground also, it cannot be said that the Surveyor and Commissioner has not properly surveved and not properly submitted the Report.
19. The advocate for appellant/respondent-1 has taken another contention that by granting entire house to him, in other properties by valuing the house more shares has to be given to other parties. It is important to note that when the said house is in a condition to divide into three parts, question of ascertaining the value of the said house and giving of other persons in the form of land does not arise at all. If the Commissioner Report has been taken into consideration, the arguments addressed by the advocate for the appellant/respondent is not acceptable one.
20. I have gone through the judgment and final decree passed by the trial Court. The trial Court has elaborately considered the Commissioner Report and made equitable division between the petitioner and respondent-1 and 2. The trial Court has rightly allotted the share by giving equitable relief. Even the trial Court has considered that there is no material to reject the Commissioner Report. If the reasonings given by the trial Court and Commissioner Report have been taken in to
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NC: 2025:KHC:30860 RSA No. 1932 of 2021 HC-KAR consideration, it clearly shows that the said judgment and final decree is not suffering from any irregularities and illegalities further shows that there is no substance in the prayer sought by the appellant\respondent-1 in the I.A.No.III.
11. Being further aggrieved by the same present second appeal is filed on the following grounds :
The impugned judgment and decree passed by the courts below are not sustainable either in law or on facts, hence it is liable to be set aside.
The 1st defendant is the father and plaintiff is his youngest son who has filed the suit for partition and possession of his 1/3rd share which was decreed. 1st defendant being the father has accepted the said decree for partition which is equal partition in accordance with law and has not challenged the same. The plaintiff being the decree holder has filed FDP Proceedings and Commissioner was appointed for apportionment of the respective shares and to identified the same. The Court Commissioner inspected the spot conducted survey and while submitting the report all the road side lands which are potential is allotted to the plaintiff inspite of the request made by the 1st defendant that he is aged 72 years and he must be given an option to get easily access able properties and also requested to allot 3 shares with approach road to all the parties that is to the plaintiff and
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NC: 2025:KHC:30860 RSA No. 1932 of 2021 HC-KAR defendants, without considering the said request of the 1st defendant the court commissioner has allotted all the potential properties to the plaintiff. Even though the 1st defendant has filed his objection to the Commissioner Report to final decree proceedings has not considered the objection filed by theist defendant, on the other hand accepted the commissioner report and proceeded for the final decree. The challenge made to the said decree by the 1st defendant in R.A.No.9/18 is also dismissed, hence the impugned judgment and decree are liable to be set aside.
As stated above the 1st defendant is a senior citizen and suffering from several health issues and not in a position to cultivate the land on his own and he requires the service of the labourers. If there is no approach road and access from the road to his property it is very difficult for him to transport fertilizer, and the crops and yielding to the drying yard. This aspect is not at all considered and appreciated by the courts below, hence the impugned judgment and decree are liable to be set aside.
Another important aspect of the matter is that the parties are having a common dwelling house situated in Item No. 5 of the suit schedule properties which is ordered to be divided into 3 equal portions. It is a old house and it cannot be partitioned by making 3 shares. Hence the impugned judgment and decree are erroneous.
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NC: 2025:KHC:30860 RSA No. 1932 of 2021 HC-KAR The 1st defendant is in possession, enjoyment of suit schedule property and is ready to give 1/3rd share to the plaintiff and 2nd defendant. But all the lands shall be allotted equally regarding the potentiality and all the 3 shares shall have approach roads. The total area of the suit schedule property is 18 acres 6 cents, the 1st defendant has proposed that Sy.No.142/2 Item No.3 measures 10.80 acres, if it is divided into 2 shares and allotted to plaintiff and defendant No.2 both of them will get 5.40 acres almost equal to their shares and remaining 60 cents can be allotted in the wet land then all the parties could have remained in one corner and there would not have any problems in future. The court commissioner without considering the said request made by the 1st defendant apportioned by bits and pieces in all the survey numbers, taking advantage of the said situation the plaintiff is intending to demolish his 1/3rd share in the house property and also intending to take possession of the potential and road side properties. If the impugned judgment and decree are not modified the plaintiff will execute the present judgment and decree and in such an event the defendants will be put to great hardship and inconvenience.
12. In the appeal, following substantial questions of law are raised by the appellant:
1. Whether the courts below justified in ignoring the objection filed by the 1st defendant to the
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NC: 2025:KHC:30860 RSA No. 1932 of 2021 HC-KAR commissioner report that the apportionment made by him is not equitable and proportionate and arbitrarily allotted the potential properties to the plaintiff?
2. Whether the final decree court is justified in accepting the commission report without looking into the sketch prepared and produced by the court commissioner along with the report?
3. Whether the First Appellate Court justified in rejecting I.A. No. 3 filed by the 1st Defendant/ Appellant under Section 2 of the Partition Act?
4. Whether the courts below justified in ignoring the request made by the 1st defendant to allot the shares of the parties in one corner, instead of apportioning all the items of the property to all the share holders?
5. Whether the court below justified in allotting 3 shares in a common dwelling house to all the parties without considering the facts that it cannot be divided into 3 shares.
13. This Court heard the arguments of counsel for the appellant who submits that learned Trial Judge did not consider the objections filed by the present appellant before accepting the Commissioner's report resulting in
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NC: 2025:KHC:30860 RSA No. 1932 of 2021 HC-KAR miscarriage of justice and sought for admitting the appeal on aforesaid substantial questions of law for further consideration.
14. He would also contend that the second respondent is now agreeable for an amicable settlement and therefore appeal needs to be admitted.
15. Counsel for second respondent is absent today.
16. As such, in the light of the arguments put-forth on behalf of the appellant, this Court perused the material on record meticulously.
17. On such perusal of material on record, there is no dispute in the relationship inasmuch as plaintiff and second defendant are the sons of the first defendant. Suit in O.S. No.27/2006 came to be decreed on 11.07.2012. Pertinently, there is no appeal against the decreeing of the suit and therefore Final Decree Proceedings commenced in FDP No.7/2012.
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18. In order to divide the suit property by metes and bounds, an advocate was appointed as Court Commissioner on 06.12.2012. The Court Commissioner issued necessary notice to the parties and also collected the necessary records from the Tahsildar's Office and summoned the parties in the suit property and in their presence, divided the suit property. Mahazar was drawn as to the actual demarcation of the property with a sketch with colour codification allotting the suit property to the plaintiff and defendants in the presence of the parties. Pertinently, all the parties have signed the mahazar.
19. Court Commissioner returned the Commission Warrant along with Sketch, notices issued to the parties and other relevant documents. Pertinently, though the present appellant filed objections to the Commissioner's report but did not chose to cross-examine the Court Commissioner to substantiate the objections filed by him to the Commissioner's report.
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NC: 2025:KHC:30860 RSA No. 1932 of 2021 HC-KAR
20. The learned Judge in the Trial Court considering the arguments put-forth on behalf of the parties and also taking note of the equitable partition effected by the Court Commissioner and considering the Sketch, was of the considered opinion that the shares allotted to the respective parties as per the Commissioner report is equitable in nature and did not cause hardship or injury to any of the parties in the absence of any contra material placed on record except appellant filing objections to the Commissioner report.
21. Being aggrieved by the same, the appellant approached the First Appellate Court.
22. The learned Judge in the First Appellate Court referred to supra, did consider the case of the appellant in detail and vide paragraph No.20 of the judgment referred to supra, was of the considered opinion that there was no material on record placed by the present appellant before the First Appellate Court or before the Trial Court to reject
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NC: 2025:KHC:30860 RSA No. 1932 of 2021 HC-KAR the Commissioner Report. Therefore, the appeal of the appellant was dismissed by the First Appellate Court.
23. In the light of the above factual aspects, this Court did reconsider the materials on record in the view of the substantial questions of law raised in the appeal as referred to supra.
24. The substantial questions of law are in the negative form stating that the allotment of the shares as per the Commissioner's report is not equitable, proportionate and arbitrary. Likewise, second substantial question of law is in the form of factual aspects and therefore, same needs no further consideration in this appeal.
25. Rejection of I.A.No.3 filed by the appellant under Section 2 of the Partition Act was just and proper in view of the findings recorded by the learned Judge in the First Appellate Court in paragraph No.20 referred to supra.
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NC: 2025:KHC:30860 RSA No. 1932 of 2021 HC-KAR Therefore, requires no further consideration in this second appeal.
26. Substantial question of law Nos.4 and 5 are factual in nature and not questions of law. Therefore, none of the substantial questions of law would merit for further consideration.
27. It is pertinent to note that appellant is the father of respondents. In fact, he should have chosen to divide the property amicably among his children. But having refused to do so, is litigating in respect of the suit property from the year 2006 on one pretext or the other.
28. In fact, when the relationship and nature of the property is not disputed, the only point that was required to be considered is, as how to divide the property equitably among his children keeping the share for himself till his lifetime.
29. Appellant is aged about 72 years as on the date of filing the appeal which shows that it is the ego of the
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NC: 2025:KHC:30860 RSA No. 1932 of 2021 HC-KAR appellant which is coming in the way of equitable partition and no other issue.
30. Taking note of these aspects of the matter, in view of the foregoing discussions, this Court is of the considered opinion that the appeal grounds lack merit and therefore, same needs to be rejected.
31. Hence, the following:
ORDER Substantial questions of law raised in the appeal are meritless and consequently, appeal stands dismissed.
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(V SRISHANANDA) JUDGE SNC,KAV List No.: 1 Sl No.: 44