(BY SRI. SANTOSH B.MALAGOUDAR, ADVOCATE FOR R1 TO R5; NOTICE v. Khanappa Malakari Kotre & Ors.

SMT. SHANTAWWA W/O. SHIVANGOUDA PATIL, SINCE DECEASED BY HER LR’S. PANCHANAGOUDA S/O. SHIVANAGOUDA PATIL, AGE: 49 YEARS, OCC: AGRICULTURE, R/O. CHACHADI, TQ: SAUDATTI, DIST: BELAGAVI. PARATAGOUDA S/O. SHIVANAGOUDA PATIL, AGE: 47 YEARS, OCC: AGRICULTURE, R/O. CHACHADI, TQ: SAUDATTI, DIST: BELAGAVI.

SMT. KALLAWWA W/O. LAXMAN ABBAR, AGE: 58 YEARS, OCC: HOUSEHOLD WORK, R/O. MUNAVALLI, TQ: SAUNDATTI, DIST: BELAGAVI-590001. - 2 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024

SMT. KASTUREWWA W/O. DYAMAPPA ABBAR, AGE: 67 YEARS, OCC: HOUSEHOLD WORK, R/O. MUNAVALLI, TQ: SAUNDATTI, DIST: BELAGAVI-590001.

SMT. PARVATI W/O. SHIVANGOUDA PATIL, AGE: 64 YEARS, OCC: HOUSEHOLD WORK, R/O. MALLAPUR, TQ: BAILHONGAL, DIST: BELAGAVI-590001.

SHRI. KALLANAGOUDA S/O. VADATANAGOUDA @ VADADAPPA BIKKANAGOUDAR, AGE: 69 YEARS, OCC: AGRICULTURE, R/O. MUNAVALLI, TQ: SAUNDATTI, DIST: BELAGAVI-590001.

SHRI. MAHANTESH S/O. BASAPPA PENTAD AGE: 54 YEARS, OCC: AGRICULTURE, C/O. MALLANAGOUDA SHANKARAPPA MUGALI, R/O. MUNAVALLI, TQ: SAUDATTI, DIST: BELAGAVI-590001.

SHRI. MALLIKARJUN S/O. BASAPPA PENTED, AGE: 51 YEARS, OCC: AGRICULTURE, R/O. MUNAVALLI, TQ: SAUNDATTI, DIST: BELAGAVI-590001.

SMT. BASAWWA W/O. ADRASAPPA SAVALAGI AGE: 47 YEARS, OCC: HOUSEHOLD WORK, R/O. MURAKIBHAVI, TQ: BAILHONGAL, DIST: BELAGAVI-590001.

SMT. SHARAWWA W/O. KOTRESH VANAKERI, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O. ASUNDI, TQ: SAUDATTI, DIST: BELAGAVI-590001. …RESPONDENTS

(BY SRI. SANTOSH B.MALAGOUDAR, ADVOCATE FOR R1 TO R5; NOTICE TO RESPONDENTS NO.6 TO 8 IS SERVED; NOTICE TO RESPONDENTS NO.9 AND 10 ARE HELD SUFFICIENT) THIS RFA IS FILED UNDER SECTION 96 OF CPC PRAYING TO SET ASIDE JUDGMENT AND DECREE DATED 17.12.2019 IN FDP NO.9/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, - 3 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024 SAUNDATTI AND ALLOW THIS APPEAL WITH COSTS THROUGHOUT AND IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) This appeal is by the 1st respondent assailing the final decree drawn in FDP No.9/2013. Pending appeal, original respondent No.1 died and his legal heir i.e., appellant No.1A is brought on record and legal representative is permitted to prosecute the appeal.

2. The appellant herein has questioned the final decree passed in FDP No.9/2013, which is based on a preliminary decree passed in O.S.No.2/2005. The primary objection raised by the appellant herein is that the trial Court lacks jurisdiction under Section 54 of the Civil Procedure Code to appoint a Taluka Surveyor as a Court Commissioner and Feasibility Report submitted by the Court Commissioner and consequently, final decree drawn by the Court below are - 4 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024 nullity and therefore would warrants interference at the hands of this Court.

3. The second limb of the arguments advanced by the learned counsel for the appellant pertains to the impracticability of the Feasibility Report concerning the division of the residential house. It is contended that if the said report is accepted, the property would be subjected to multiple fragmentations, rendering it unfit for effective use by the joint family members. Drawing the Court’s attention to the sketch appended at page No. 36 of the appeal memo, learned counsel highlights that each plaintiff has been allotted a portion measuring only 9.2 feet by 29.8 feet. She argues that a 9-feet-wide portion of a residential house is not functionally viable, thereby defeating the very objective of a fair and equitable partition. Consequently, she submits that the acceptance of the Feasibility Report and the resulting final decree fail to adequately safeguard the equities and interests of the joint family. Accordingly, she urges this Hon’ble Court to set aside the final decree and remit the matter to the trial court for reconsideration, so that - 5 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024 the parties may work out the equities in a more practicable and just manner.

4. Furthermore, relying on Section 54 of the Civil Procedure Code, learned counsel strenuously contends that the appointment of a Taluka Surveyor is contrary to the statutory scheme. Emphasising the phrase “any such other person” as contained in Section 54, she asserts that, where a Revenue Officer is appointed, such officer must not be below the rank of Tahsildar. Therefore, she submits that the appointment of a Taluka Surveyor, being of a lower rank, is without jurisdiction and in contravention of the provisions of the CPC.

5. Per Contra, the learned counsel for the plaintiffs has effectively countered the defendants contention by placing reliance on the Judgment rendered by the single Judge of this Court in the case of Lagama Beerasidda Pujeri vs. Khanappa Malakari Kotre and Others, reported in ILR 2016 KAR 1180, citing paragraph Nos.7 and 8, he would point out that the Civil Court has two - 6 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024 options to secure Feasibility Report as per the Karnataka amendment to Section 54 of the Civil Procedure Code. The learned Single Judge while examining the intent provided under Section 54 of the Civil Procedure Code held that the wordings “such other person” indicated in Section 54 of the Civil Procedure Code, the Court concluded that the words “such other person” has to be interpreted in wide amplitude and the Court is vested with authority to appoint any such other person, who is suitable to report feasibility, which would depend on facts and circumstances of the case. Citing this Judgment, he would contend that the appointment of the Court Commissioner strictly alliance with the power conferred on the Civil Court under amended Section 54 of the CPC. A similar view is taken by another coordinate bench of this Court in RSA.No.100104/2015.

6. Heard the learned counsel for the appellant on record and perused the procedure contemplated under Section 54 of the Civil Procedure Code. We have also given our anxious consideration to the two judgments rendered - 7 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024 by the single bench of this Court, the following points would raise for our consideration : (i) Whether the final decree drawn by the Court by accepting the Feasibility Report submitted by the Taluka Surveyor pertaining to the agriculture land contravenes the amendment provided under Section 54 of the Code of Civil Procedure Code? (ii) Whether the Feasibility Report submitted by the Court Commissioner in respect of residential house warrants interference? Finding on Point No.(i)

7. Before we proceed to examine the arguments advanced by the learned counsel appearing for appellant herein, we deem it to cull out Karnataka amendment to Section 54 of the CPC, which 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 - 8 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024 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. "

8. We also deem it to cull out paragraph Nos.7 and 8 of the Judgment rendered by the Single Judge in the Lagama’s case referred supra, which reads as under : “7. A bare perusal of the provision clearly reveals that, where the decree is for the partition or for separate possession of a share, then the partition of the estate, or the separation of the share shall be made by the Court in accordance with law. If necessary, the Court may seek the report of a Revenue Officer not below the rank of Tahasildar. Thus, a discretionary power has been bestowed upon the Civil Court to call for a report of a Revenue Officer, if it deems it necessary to do so, in order to execute the decree for partition, and separation of share. Since it is a discretionary power, it need not be exercised in each and every case. the Court

8. In case the Civil Court decides not to call for the report of a Revenue Officer, then a second option has to appoint a Court been given 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 should be given the power to appoint a person in whom it has faith as its Commissioner and to call for his/her report.” - 9 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024

9. We also deem it fit to cull out paragraph No.13 of the Judgment rendered by a Co-ordinate bench of this Court in the case of Shri Kallappa Balappa Deshnur and Others vs. Shattu Yallappa Deshnur and Others in RSA No.100104/2015(FDP) clubbed with Civil Revision Petition No.100009/2016 as under:

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.

10. The issue concerning the authority of the Final Decree Proceedings (FDP) Court to appoint a Court Commissioner below the rank of Tahsildar for the purpose of effecting partition of agricultural land has already been conclusively addressed by a learned Single Judge of this - 10 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024 Court. As rightly submitted by the learned counsel for the respondent/plaintiffs, this question is no longer res integra. This Court, two earlier reported judgments, has undertaken a detailed interpretation of the expression “such other person” occurring in Section 54 of the Civil Procedure Code, as amended by the State of Karnataka. The consistent judicial view has been that the said phrase is to be construed with broad amplitude. It is settled that the FDP Court is vested with discretion to appoint either a Tahsildar or any other competent person as a Commissioner to effect the division of property. The intention behind such an enabling provision is to ensure flexibility in the implementation of preliminary decrees in partition suits, especially when practical exigencies arise.

This Court is also cognizant of the practical challenges often encountered in partition proceedings. Though the FDP Court may appoint a Tahsildar as a Commissioner to examine and report on the feasibility of partitioning agricultural lands, in practice, Tahsildars have been known to sub-delegate their responsibilities by getting - 11 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024 feasibility reports prepared by subordinate revenue officials. In such instances, this Court has found such sub-delegation to be impermissible and has accordingly set aside the feasibility reports remitted the matters reconsideration under Section 54 of the CPC. However, the facts in the present case are distinguishable. Here, the FDP Court has not merely endorsed a report prepared by a subordinate. Rather, it has consciously and judicially exercised the discretion conferred upon it under the Karnataka State Amendment to Section 54 of the CPC, which explicitly allows the Court to choose between appointing a Tahsildar or "such other person" to undertake the task of partition. While the first option authorizes the appointment of a revenue officer not below the rank of Tahsildar, the second option enables the Court to appoint any other suitable person, irrespective of rank, provided the appointee is competent to discharge the duties of survey and reporting. This legislative flexibility is rooted in the recognition that Tahsildars may not always be readily available, and the unavailability of suitable officers should not cause inordinate - 12 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024 delay in the finalization of partition proceedings. Therefore, in the present case, the appointment of a Taluka Surveyor,a technically qualified official under the Karnataka Land Revenue Act, 1964 must be seen as a legitimate and competent exercise of judicial discretion.

The contention advanced by the learned counsel for the appellant that the phrase “such other person” must necessarily exclude revenue officials and that, if a revenue officer is to be appointed, he must be of the rank of Tahsildar or above, initially appears attractive but does not withstand deeper scrutiny. The argument attempts to impose an artificial limitation upon the discretion afforded by the Karnataka amendment to Section 54. The phrase “such other person” is broad and inclusive by design, and the statute does not expressly exclude revenue officials from being appointed under this second limb of discretion. Rather, it contemplates the appointment of any individual, whether from the revenue department or otherwise who is sufficiently qualified to conduct a land survey and furnish a feasibility report. - 13 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024

Statutory Framework and Relevance of "Such Other Person". Under the unamended Section 54 of the CPC, the role of partitioning agricultural land is reserved for the Collector or an appointed Revenue Officer, as per the general central enactment. However, the Karnataka Amendment replaces this with a more specific and nuanced provision.

The first part of the Karnataka amendment mandates that a Tahasildar shall be appointed to carry out the division of agricultural lands. This reflects the legislative preference for a revenue officer not below the rank of Tahasildar, ensuring technical competence administrative authority in managing agricultural records and boundaries.

The second part of the amendment, however, introduces phrase “such person”, thereby expanding the Court’s discretion. This provision allows the Court, under suitable circumstances, to appoint someone other than a Tahasildar, provided that such a - 14 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024 person is otherwise competent and qualified to conduct a survey and submit a Feasibility Report. This other person may or may not be a revenue officer, but must possess the requisite technical knowledge and ability to fulfil the task effectively.

The legislative intent behind including the option “such person” grounded in practical exigencies and the need for expeditious resolution of partition suits. It is a known fact that Tahasildars, being busy revenue officers, are often overburdened with multiple statutory responsibilities. Their unavailability or delay in submitting Feasibility Reports has led to prolonged delays in final decree proceedings in partition suits.

The insertion of the phrase “such other person” is intended to avoid bottlenecks in the judicial process. If the Court were confined solely the appointment of Tahasildars, many suits would remain pending indefinitely, defeating purpose a preliminary decree. By allowing the Court to appoint any “other person” who is - 15 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024 qualified (e.g., a Taluka Surveyor, private licensed surveyor, or court commissioner with technical expertise), amendment ensures that the partition process is technically sound and legally valid, even if undertaken by someone outside the formal revenue hierarchy. Although discretion is granted, it is not unregulated. The decision to appoint such other person is subject to judicial scrutiny, and the Court must be satisfied that the appointed individual is competent and the procedure adopted ensures fairness, transparency, and equity among co-sharers.

The apparent contradiction between the two limbs of the amendment that is, requiring a Tahasildar on one hand and allowing "such other person" on the other must be harmoniously construed. The first part lays down the preferred route, while the second part creates an enabling provision for exceptions based on practical needs.

In sum, the use of the phrase “such other person” in the Karnataka amendment to Section 54 CPC is - 16 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024 not merely permissive but instrumental in empowering the Court to effectively adjudicate and implement partition decrees. It provides a balanced mechanism: ensuring that the competence of Tahasildars recognized, the realities of court practice and administrative limitations at Moffusil level are also accounted for by granting the Court pragmatic flexibility.

Therefore, the contention that the appointment of a Taluka Surveyor violates the mandatory requirement that the appointee must not be below the rank of Tahsildar is misconceived. The statutory scheme provides two distinct alternatives: one involving a Tahsildar and another involving “any such other person.” The Taluka Surveyor, being an officer trained and empowered to conduct land surveys under the Karnataka Land Revenue Act, falls squarely within the scope of the second category.

In the present case, the suit was instituted in the year 2005, and significant time has elapsed. Indeed, this Court has, in numerous instances, intervened where final - 17 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024 decrees have been based on flawed feasibility reports prepared through unauthorized sub-delegation by Tahsildars. However, in the present case, the appointment of a Taluka Surveyor was not the result of such improper delegation, but a direct exercise of judicial discretion by the FDP Court. The Taluka Surveyor, being technically qualified and statutorily recognized as a competent authority under the Karnataka Land Revenue Act, was appropriately entrusted with the preparation of the feasibility report.

It is also significant to note that the appellant did not file any objections to the feasibility report submitted by the Taluka Surveyor. Having failed to object at the appropriate stage, the appellant is now estopped from challenging the report on technical grounds. The absence of timely objections weakens the credibility of the appellant’s grievance and reflects acquiescence to the procedure adopted by the Court. Consequently, the argument that the appointment of the Taluka Surveyor contravenes Section 54 of the CPC, as amended, must be rejected not only on legal grounds but also for want of procedural diligence on the part - 18 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024 of the appellant. In view of the foregoing, Point No. (i) is answered in the ‘negative’. Finding on point No.(ii)

The appellant’s second limb of argument relates to the division of the residential house, which, according to Appellants, has been fragmented into six separate portions, thereby diminishing its value and rendering it functionally unusable. It is contended that such fragmentation undermines the utility of the property and frustrates the very purpose of partition. The learned counsel for the appellant argues that the portions allotted to the parties measure only

9.2 feet in width, which, by any reasonable standard, cannot serve as a viable or habitable space for individual joint family members. Consequently, it is submitted that the division, as accepted under the Final Decree, does not effectively safeguard the interests and rights of the parties and ought to be revisited.

However, upon a detailed examination of the sketch appended to the final decree proceedings, it becomes - 19 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024 evident that the position is not as presented by the appellant. The record discloses that the plaintiffs have been jointly allotted four portions, and when viewed cumulatively, the area allotted to them measures approximately 36.8 feet in width and 29.8 feet in length. On the other hand, the total area allotted to the defendants measures about 18.4 feet in width and 29.8 feet in length. Thus, contrary to the contention of unworkable fragmentation, the sketch reflects a more practical allocation of the residential house.

Further, the learned counsel appearing for the plaintiffs, on instructions from her clients, has submitted before this Court that the plaintiffs are willing to jointly utilize the portion allotted to them. This submission indicates a clear willingness on their part to cooperate and equitably manage the property without insisting on strict physical separation. Similarly, the portion allotted to the defendants can be either used jointly by them, or, if any of them is so inclined, he or she may explore the possibility of purchasing the shares of the co-sharers and thereby work out equitable remedies, post-final decree, through mutual arrangement or - 20 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024 under law. Therefore, the argument that the division of the residential house results in a futile or unusable allotment is not supported by the material on record and fails to demonstrate any procedural irregularity or substantial prejudice.

With regard to the residential house, it is also significant to note that the appellant has failed to tender any objections to the Feasibility Report or the sketch that formed the basis for the final decree. In the absence of specific and timely objections raised before the FDP Court, the appellant cannot now be permitted to challenge the division of the property at the appellate stage, particularly when the plaintiffs have clearly expressed their readiness to jointly enjoy the portion allotted to them. The principle of waiver and estoppel would operate against the appellant, who had a fair opportunity to contest the mode of division but chose not to do so at the appropriate time.

Given these circumstances, and in light of the plaintiffs’ willingness to jointly utilize the residential portion - 21 - NC: 2025:KHC-D:6476-DB RFA No. 100070 of 2024 allotted to them, this Court finds no infirmity in the manner in which the FDP Court has divided the residential house. The division appears reasonable, legally sound, and mindful of the practicalities involved. As such, there is no cause for interference by this Court with respect to the allotment or the final decree in relation to the residential house.

For the foregoing reasons, the point No.(ii) answered in the ‘negative’.

16. In the light of discussions made supra, the appeal is devoid of merits, hence, it is dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE CKK Ct:VH List No.: 1 Sl No.: 11