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IN THE HIGH COURT DHARWAD BENCH

DATED THIS THE 16 TH DAY OF JUNE, 2015 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No. 103234/2015 (GM-CPC)

BETWEEN:

1. Babusab s/o Dasthagirsab, Age 67 years, Occ: Agriculture, R/o Jamapur-583 229, Taluka: Gangavati, Dist: .

2. Chandrashekarappa S/o Nagareddeppa Desai, Age: 50 years, Occ: Agriculture, R/o Gundoor-583 231, Taluka Gangavati, Dist: Koppal. ... PETITIONERS

(By Smt. Rekha Patil, advocate for Sri M.G. Naganuri)

AND:

1. Yamanamma W/o Mareemsab, Age: 76 years, Occ: Agriculture, R/o Diggi Camp-583 231, Taluka: Gangavati, Dist: Koppal. : 2 :

2. Hussainsab s/o Mareemsab, Age: 56 years, Occ: Agriculture, R/o Mustur Diggi Camp-583 231, Taluka: Gangavati, Dist: Koppal.

3. Fakeersab s/o Mareemsab, Age: 41 years, Occ: Agriculture, R/o Mustur Diggi Camp-583 231, Taluka: Gangavati, Dist: Koppal.

4. Smt. Jainabee w/o Yamanursab, Age: 48 years, Occ: Household, R/o Mustur Diggi Camp-583 231, Taluka: Gangavati, Dist: Koppal.

5. Rajasab, S/o Mareemsab, Age: 43 years, Occ: Agriculture, R/o Mustur Diggi Camp-583 231, Taluka: Gangavati, Dist: Koppal.

6. Murtujasab s/o Mareemsab, Age: 46 years, Occ: Agriculture, R/o Mustur Diggi Camp-583 231, Taluka: Gangavati, Dist: Koppal. ... RESPONDENTS

(By Sri. Ganapati. M. Bhat, Advocate for R-1 to 4, respondent Nos. 5 and 6 served) ... This Writ Petition is filed under Articles 226 and 227 of the Constitution of praying to issue a writ of certiorari quashing the order dated 16.3.2015 passed by the Senior Civil Judge at : 3 :

Gangavati overruling the objections of petitioners to the Commissioner’s report in FDP 5/2013 produced at Annexure-D and any other directions or orders to which the petitioners are entitled to.

This Writ Petition coming on for Orders this day, the Court made the following:

ORDER

Petitioners, who are respondent Nos.3 and 4 in FDP

No.5/2013, have filed the above petition challenging the order dated 16.3.2015 passed in said proceedings on the file of the

Senior Civil Judge, Gangavathi in rejecting their objections filed to the Commissioner’s report.

2. Respondent Nos. 1 to 4 are the plaintiffs in the original suit – O.S.No.15/2002 for partition and separate possession which came to be decreed against which the defendant preferred an appeal in RFA No.1162/2005 which was also dismissed. In pursuance of the decree, respondent Nos.1 to 4 filed FDP

No.5/2013. During the pendency of the said FDP proceedings, petitioner No.1 filed an application under Order XX Rule 18 r/w

Section 151 of CPC to appoint a surveyor of Survey Department : 4 :

or Tahsildar of Gangavati as Court Commissioner to demarcate the suit schedule property and also submit his report with topography of the entire area with sketch as per the decree passed by this Court in O.S.No.15/2002 and affirmed by this Court in

RFA No. 1162/2005 declaring the share of the defendants/respondent Nos. 1 and 2 in the suit schedule property. The said application came to be allowed by the learned

Civil Judge on 4.8.2014 and the Tahsildar, Gangavati was appointed as the Court Commissioner with a direction to suggest possible divisions in the suit schedule property as per the preliminary decree passed by this Court in RFA No.1162/2005.

Then the Tahsildar delegated his powers to the Taluka Surveyor, who has prepared and submitted his report to the Court.

Therefore, the present petitioners, who are respondent Nos. 3 and

4, filed objections to the Commissioner’s report contending that in view of the amended provisions of Section 54 of CPC., the

Tahsildar has no power to delegate his powers to the Taluka

Surveyor to demarcate the land under Section 54 of CPC., was : 5 :

rejected by the Civil Judge, Gangavath. Hence, the present petition is filed.

3. I have heard the learned Counsel for the parties.

4. Smt. Rekha Patil on behalf of Sri M.G. Naganuri, learned

Counsel for the petitioners contended that the impugned order passed by the Civil Judge vide Annexure-D is contrary to law and as per the amended provisions of Section 54 of CPC, the Court has to effect partition in respect of estate or separation of a share of such an estate, if necessary, on the report of a revenue officer, not below the rank of Tahsildar. In the present case, the Court below has appointed the Tahsildar, Gangavati as the Court

Commissioner to effect the partition in respect of Sy.No. 195 of

Kuntoji village, Gangavati Taluk, but the Tahsildar without any authority has delegated his powers to the to the ADLR to submit the report. The same is not permissible and in view of the amended provisions of Section 54 of CPC and the law declared by this Court in the case of Sanga Reddy –vs- Smt. Basamma and Others : 6 :

reported in ILR 2004 KAR. 3664 to the effect that the Court shall effect the partition in accordance with Section 54 of CPC., as amended in Karnataka, the Tahsildar has no power to effect the partition and delegate his power to ADLR to submit report.

Therefore, she sought for setting aside of the impugned order.

5. Per contra, Sri Ganapati. M. Bhat, learned Counsel for respondent Nos.1 to 4 fairly conceded the legal position and the law declared by this Court in the case stated supra.

6. In view of the fair submission made by the learned counsel for the respondents and in view of the dictum of this

Court stated supra, the impugned order passed by the trial Court dated 16.3.2015 in FDP 5/2013 on the file of the Principal Civil

Judge (Sr.Dn.) at Gangavathi is set aside. The matter is remitted to the trial Court for fresh consideration in accordance with law particularly in accordance with the provisions of Section 54 of

CPC., as amended in Karnataka within a period of 2 months from : 7 :

the date of receipt of a copy of this order. Accordingly, writ petition is allowed.

7. Since the matter itself is disposed of, question of considering I.A. for vacating stay does not arise.

Sd/- JUDGE

Nsu/-