Second appeal filed against concurrent findings of lower courts regarding partition of house property. High Court rejected arguments concerning Section 54 CPC and Commissioner's report. Appeal dismissed with no substantial questions of law to frame.
Second appeal dismissed; no substantial questions of law framed under Section 100 CPC.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1084 OF 2018 (PAR)
BETWEEN:
…APPELLANT
(BY SRI SIDDAPPA B.M., ADVOCATE)
AND:
…RESPONDENTS
(BY SRI. H.MUJTABA, ADVOCATE FOR R1 & R2; SRI M.T. JAGAN MOHAN, ADVOCATE FOR IMPLEADING APPLICANTS ON IA NO.1/2021)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 17.02.2018 PASSED IN R.A.NO.54/2017 ON THE FILE OF THE I ADDL. DISTRICT AND SESSIONS JUDGE CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 08.08.2017 PASSED IN FDP.NO.8/2015 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM, CHITRADURGA, ALLOWING THE PETITION FILED UNDER SECTION 20, RULE 18 R/W SECTIONS 54 AND 151 OF CPC, FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This matter is listed for admission. Heard the learned counsel for the appellant and the learned counsel for the respondents.
separate division of landed properties and the Assistant Executive Engineer, PWD, Chitradurga, was appointed as Court Commissioner to effect the partition and separate division of house properties in terms of the preliminary decree in respect of suit schedule properties. Both the Court Commissioners visited the spot and made division of the landed properties to effect the partition and both the Court commissioners have filed their respective report along with survey sketch. Both the parties have not disputed about both the Commissioners’ report. The Court called for objections from both the sides on the Commissioner reports. The learned counsel on both the sides have submitted their objections to the Survey Commissioner reports. The Court Commissioner not partitioned the suit schedule properties item Nos.13, 15, 17, 18, 20, 21 and 22. The Court Commissioner without pursuing the order of the Court, he has submitted his report and the same is not tenable with respect to above properties. Hence, ordered to re-issue Commissioners warrant with respect to above item numbers. The Commissioner has not partitioned the schedule properties in written, the Commissioner warrant is half boiled report and sketch is
untenable in law. When these objections were raised, the Trial Court while disposing of FDP, formulated the point whether the Commissioners reports submitted by the Court Commissioners are acceptable and whether the petitioners are entitled to final decree as prayed.
the difference of the area which was allotted as Part-A and Part-B and also taken note of that the construction of the house was made in the year 1962 and sheet house was constructed in the year 2010 and assessed the value of the RCC ground floor house and sheet house of both Part-A and Part-B and vacant site, calculated the amount and arrived at a conclusion of Rs.75,000/-, which is payable by the respondent to the petitioners by way of compensation and passed an order.
Court also taken note of with regard to item Nos.3 to 22 and there is no dispute with regard to the said items are concerned and only dispute is with regard to item Nos.1 and 2 i.e., the house property. In paragraph No.20, the First Appellate Court extracted the reasoning given by the Trial Court while partitioning the property as Part-A and Part-B and taken note of that Part-A property is bigger than the Part-B property and considering the material on record, the Trial Court also rightly comes to the conclusion that there is no possibility of dividing the property equally in respect of item Nos.1 and 2 and taken note of the area which has been assessed value with regard to excess is concerned and ordered for payment of Rs.75,000/-.
also taken note of the measurement of each part and apart from that, discussion was made in the order of the Trial Court that there was a beam and in view of the said beam, it cannot be divided equally and hence a fair partition was made before the Trial Court.
paragraph No.13 and accepted the Commissioner report and hence it does not require any interference. The First Appellate Court while re-appreciating the material on record, discussed that the Court Commissioner is not technically expert in preparing the sketch, but taken note of that, admittedly the Assistant Executive Engineer, PWD, Chitradurga, is an independent body, who is a government employee, he is neither interested in the appellant nor in the respondents.
FDP is not in accordance with the Partition Act and when such ground is raised, the Court has to look into the material on record, whether fairness is adopted in partitioning the property or not. The Court has taken the assistance of the Assistant Executive Engineer while partitioning the property and accepted the report considering the fairness of the report of the Court Commissioner. When such being the case, the very contention that partitioning the property is not in accordance with the Partition Act, cannot be accepted. It is learnt that the appellant herein is squatting on the house property and not allowing the respondents to take share by
metes and bounds in terms of FDP and the Court has to take note of the conduct of the appellant for considering the lis between the parties as he is squatting on the property. Hence, I do not find any ground to admit the appeal and frame substantial questions of law invoking Section 100 of CPC.
following:
ORDER
The second appeal is dismissed.
Sd/JUDGE
MD List No.: 1 Sl No.: 67
3 issues framed by the court
Whether the trial court committed an error in partitioning the house property and directing the appellant to pay Rs.75,000 to respondents for difference in measurement.
Whether the Circuit Commissioner had power to partition the property under the amended provisions of Section 54 of CPC without following the Partition Act.
Whether the High Court is satisfied that the finding of the lower courts is adequate, proper and not erroneous in law under Section 100 CPC.
2 provisions across 1 enactments
Sri K.N. Prakash
Smt. Jyoti M.
Smt. G.C. Rathnamma
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
