Case Note & Summary
The matter arose from a partition suit and subsequent final decree proceedings concerning multiple immovable properties. The original suit O.S.No.2635/2003 was decreed by the trial court granting half share each to the plaintiffs and defendants in suit schedule item Nos.1 to 14 properties. The defendants challenged the preliminary decree in RFA No.817/2009 before the High Court of Karnataka, which modified the preliminary decree by order dated 13.10.2022, and that order attained finality. Thereafter, the plaintiffs initiated final decree proceedings in FDP No.95/2009 before the I Additional City Civil and Sessions Judge, Bengaluru. The FDP Court appointed a Taluka Surveyor as Court Commissioner to survey and divide the properties by metes and bounds. The Taluka Surveyor submitted a report, and the FDP Court accepted the report and ordered drawing up of the final decree under Order XX Rules 12 and 18 of CPC, allotting Portion 'A' property to the plaintiffs and Portion 'B' property to the defendants by order dated 02.02.2026. The defendants, who were respondents in the FDP, filed Regular First Appeal No.681 of 2026 before the High Court of Karnataka challenging that order. The appellants contended that according to Section 54 of CPC, the Court shall carry out division of properties, if necessary, by taking recourse of a Revenue Officer not below the rank of Tahasildar, but in the present case the Taluka Surveyor, who is of inferior rank to the Tahasildar, was assigned the work, thereby violating Section 54 of CPC. They further argued that the Court Commissioner's report omitted certain facts causing prejudice: 2.5 guntas in Sy.No.31/2A (2C and 2E) out of 25 guntas utilized by Gram Panchayath for road without compensation; 5 guntas in Sy.No.4/2A (old Sy.No.4/2) out of 1 acre 35 guntas encroached upon by neighbouring land owners; 1/4th of land in Sy.No.21/1A (old Sy.No.21/1) measuring 1 acre 13 guntas encroached; and 3 guntas in Sy.No.36/3A (old Sy.No.36/3) out of 30 guntas acquired but shown as shortfall. The appellants relied on the judgment of this Court in Obamma; Boraiah; Channaiah; Thippaiah; Boramma; Badaboraiah; Thippamma v. Boraiah; Boramma; Bangaraiah, LAWS (KAR)-2016-7-136, and prayed to allow the appeal and remand the matter for fresh consideration of the final decree. On the other hand, the respondents/plaintiffs submitted that the Court Commissioner's report was correct, Portions 'A' and 'B' properties have a common road and access to the road, and if there is any encroachment in suit schedule item Nos.6 and 9 properties, both parties will work out their remedy in other proceedings; just because the Court Commissioner did not mention encroachment does not extinguish the rights of the parties. They argued that the report should not be set aside after more than two decades of litigation and prayed to dismiss the appeal. After hearing arguments, the High Court framed two points for consideration: (i) whether the Taluka Surveyor/Court Commissioner is of an inferior rank to the Tahasildar insofar as conducting survey and making survey report is concerned, as per Section 54 of CPC; and (ii) whether liberty can be granted to both plaintiffs and defendants to claim ownership and possession over the encroached portion encroached upon by third parties in separate proceedings. The available judgment text ends at paragraph 13 while discussing the first submission, and does not contain the final decision, ratio decidendi, or operative directions. Therefore, the outcome of the appeal cannot be determined from the provided excerpt.
Headnote
A) Civil Procedure - Partition - Appointment of Commissioner and Final Decree - Code of Civil Procedure, 1908, Section 54, Order XX Rules 12 and 18 - The FDP Court appointed Taluka Surveyor as Court Commissioner to divide properties by metes and bounds and accepted the report to pass final decree allotting Portion A to plaintiffs and Portion B to defendants; appellants challenged that the Taluka Surveyor is of inferior rank to Tahasildar and thus the order is contrary to Section 54 CPC; the High Court framed the issue whether such appointment violated Section 54 CPC, but final holding is not provided in the available judgment text (Paras 2-13). B) Civil Procedure - Partition - Omission of Encroachments in Survey Report - Code of Civil Procedure, 1908, Order XX Rules 12 and 18 - The appellants alleged that the Court Commissioner's report omitted 2.5 guntas used for road by Gram Panchayath, 5 guntas and 1/4th encroachments, and 3 guntas acquired land causing prejudice; respondents argued that encroachments can be separately pursued and do not extinguish rights, and the report should not be set aside after two decades of litigation; the Court framed the issue whether liberty can be granted to claim encroached portions, but final holding is not provided in the available judgment text (Paras 7-12).
Issue of Consideration
Whether the Taluka Surveyor/Court Commissioner is of an inferior rank to the Tahasildar for conducting survey and making survey report under Section 54 CPC; Whether liberty can be granted to both plaintiffs and defendants to claim ownership and possession over encroached portions by third parties in separate proceedings
Law Points
- Section 54 of CPC mandates partition by revenue officer not inferior to Tahasildar
- final decree under Order XX Rules 12 and 18 of CPC may be based on surveyor's report
- appointment of Taluka Surveyor as Court Commissioner may violate Section 54 if rank inferior
- omission of encroachments in survey report does not extinguish parties' rights
- parties may seek separate remedy for encroached portions
