Dismissed¶¶85

Sri. R Srinivasa Murthy v. Sri. R Sathyanarayanan

Karnataka HC13 Jan 2026WP/34178/2025

Case brief

AI extract

What is this about?

Karnataka HC upholds trial court order allowing applications under Ss.2 and 3 Partition Act 1893 for public auction of indivisible residential property in FDP No.125/2023 following final preliminary decree in O.S.No.3452/2015; commissioner reported property not divisible by metes and bounds; sharer permitted to participate in auction; no interference under Article 227; relies on Radhey Shyam (2015) 5 SCC 423, K.P. Natarajan (AIR 2021 SC 3443), Mohamed Ali (2022) 10 SCC 477; writ petition dismissed.

What did the court decide?

Upon re-appreciation, reconsideration and re-evaluation of the entire material on record, the impugned order does not suffer from any illegality or infirmity warranting interference by this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India. ¶¶80

Sri. R Srinivasa Murthy Vs Sri. R Sathyanarayanan — Writ and Judicial Review | Karnataka HC (2026)

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NC: 2026:KHC:2192 WP No. 34178 of 2025

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF JANUARY, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 34178 OF 2025 (GM-CPC)

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BETWEEN:

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SRI. R SRINIVASA MURTHY S/O. LATE K. RAMAKRISHNA, AGED ABOUT 58 YEARS, RESIDING AT NO.1383, FIRST FLOOR, 4^TH CROSS, 10^TH MAIN ROAD, VIJAYANAGAR, BENGALURU-560 040.

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…PETITIONER

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(BY SRI. KRISHNAMURTHY .M.R, ADVOCATE)

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AND:

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SRI. R SATHYANARAYANAN S/O. LATE K. RAMAKRISHNA,

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Digitally signed by CHANDANA B M Location: High Court of Karnataka

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AGED ABOUT 52 YEARS, RESIDING AT NO.1383, 1^st FLOOR, 4^TH CROSS, 10^TH MAIN ROAD, VIJAYANAGAR,

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BENGALURU-560 040.

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SMT. R. KUSUMAVATHI, D/O LATE K. RAMAKRISHNA, AGED ABOUT 49 YEARS, RESIDING AT NO.28, S.V.G NAGAR, MUDLAPALYA, BENGALURU-560 072.

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…RESPONDENTS

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(BY SRI. BHASKAR BABU, H.J, ADVOCATE)

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THIS W.P. IS FILED UNDER ARTICLESE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED ON I.A NOS.2 AND 3 FILED UNDER SECTION 2 AND 3 OF PARTITION ACT AS PER ANNEXURE-L DATED 10.09.2025, PASSED BY THE XXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE (NDPS), (CCH-35), BENGALURU OR IN THE ALTERNATIVE, PASS SUCH OTHER ORDER/S, AS THIS HONBLE COURT DEEM FIT TO PASS

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NC: 2026:KHC:2192 WP No. 34178 of 2025

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HC-KAR

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ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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This petition by the respondent in FDP No.125/2023 on the file of XXXIV Addl.City civil and Sessions Judge & Spl.Judge (NDPS), Bangalore, is directed against the impugned common orders passed on I.A.Nos.2 and 3 of the Partition Act filed by the respondents herein were allowed by the trial court.

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Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record.

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A perusal of the material on record will indicate that the respondents instituted a suit in O.S.No.3452/2015 against their brother against their brother, the petitioner herein for partition and separate possession of their legitimate 1/3^rd share each in the In the suit schedule residential property. The said suit having been contested by the petitioner-defendant, the trial Court passed the judgment and decree dated 18.07.2023 decreeing the suit in favour

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3 - NC: 2026:KHC:2192 WP No. 34178 of 2025

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HC-KAR

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of the respondents against the petitioner. The said judgment and decree passed by the trial Court in O.S.No.3452/2015 dated 18.07.2023 has attained finality and become conclusive and binding upon the petitioner. Subsequently, the respondents instituted final decree proceedings in F.D.P.No.125/2023 to enforce and implement the said preliminary decree passed by the trial Court. In the said final decree proceedings, the trial Court appointed a court commissioner to ascertain and submit a report as regards the feasibility / partibility/ divisibility of the suit schedule property. Accordingly, in pursuance of the said direction issued by the trial Court, the court commissioner submitted a report interalia stating that the suit schedule property is incapable of being divided by metes and bounds into three equal shares in terms of the preliminary decree. The petitioner filed objections to the report of the court commissioner. Thereafter, since the suit schedule property was incapable of being divided by metes and bounds, the respondents filed two applications under the Partition Act. Respondent No.1 filed an application seeking direction for public auction of the suit schedule property; so also, respondent No. 2 filed an application seeking permission to purchase the suit

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NC: 2026:KHC:2192 WP No. 34178 of 2025

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HC-KAR

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schedule property on the market value fixed by the valuator. By the impugned common order, the trial Court allowed both the applications, aggrieved by which, petitioner is before this Court by way of the present petition.

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While arriving at the said conclusion, the trial Court held as under:-

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COMMON ORDERS ON IA U/S.2 AND 3 OF THE

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PARTITION ACT 1893, FILED BY THE PETITIONERS

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The petitioners have filed the above said IA praying this court to order for sale of the suit schedule property by public auction and to grant leave to the petitioner No.2 to purchase the suit schedule property on the market value fixed by the valuator for the reasons stated in the affidavit annexed to the application.

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2. The petitioner No.1 has filed affidavit along with IA U/s.2 of the Partition Act, stating that on 27.01.2024 as per the order passed by this Court Commissioner has been appointed and the commissioner has filed report stating that the property is not divisible. Therefore, the petitioner No.1 has contended that for the benefit of all the parties, the suit schedule "A" property be sold by public auction.

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3. The petitioner No.2 has filed affidavit annexed to the IA U/s.3 of Partition Act contending that this court has allotted 1/3rd share to him in the suit schedule property as per the decree passed in OS.3452/2015 on 18.07.2023 and

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NC: 2026:KHC:2192 WP No. 34178 of 2025

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HC-KAR

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that the court commissioner has filed report stating that the property is not divisible. As the suit schedule property is not divisible as per the commissioner report and that as a shareholder he is entitled to purchase the suit schedule property which is to be sold by auction as he is having right of pre-emption. Therefore, the petitioner No.1 and 2 have prayed this court to allow the above said applications.

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4. Counsel for the respondent has resisted the above said application by filing common objection denying the averments made in the affidavit annexed to the applications. It is contended that the respondent could not appear before the court from 25.10.2023 to 27.01.2024 due to ill-health. Further he was not represented by the counsel. At that time by taking undue advantage of his absence, the petitioners have filed application for appointment of commissioner and same has been allowed without giving opportunity to the respondent. Further the court commissioner without following the procedure i.e. without issuing the notice to the respondent has inspected the suit schedule property and in the absence of respondent's instructions filed false report. It is further contended that, the respondent’s mother-in-law had purchased 13.6X35 feet and 3X30 feet passage towards Western side from the father of the respondent to perform the marriage of the petitioner No.2 and now the same has been transferred in the name of respondent's wife. The respondent has built house and his family is in possession of the same and therefore the suit schedule property cannot be sold or partitioned, unless, this court accepts the court

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NC: 2026:KHC:2192 WP No. 34178 of 2025

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HC-KAR

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commissioner report. Hence these applications are not maintainable. Without providing opportunity to the respondent the court commissioner report cannot be accepted. The report has not been provided to the respondent till date. The report is biased and the respondent has not filed objection to the same. The respondent is not ready to sell his share as the respondent has another piece of land abutting to the schedule property. No grounds are stated in affidavits supporting the applications. Amongst other grounds the respondent prayed this court to reject the application.

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5. Heard both side and perused the case papers.

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6. On the basis of submission of both the parties, the

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following points arise for my consideration :-

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1.Whether the petitioners have made out sufficient grounds to allow the IA’s filed U/s.2 and 3 of the partition Act?

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2.What order?

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7. My answer to the above point are as under :-

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Point No.1 : In the Affirmative

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Point No.2 : As per final order for the

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following

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R E A S O N S

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8. POINT NO.1 :- The petitioners/plaintiffs had filed OS.No.3452/2015 before this court seeking the relief of partition and separate possession of the suit schedule property along with several other reliefs. The said suit was contested by the respondent/defendant on merits and

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NC: 2026:KHC:2192 WP No. 34178 of 2025

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HC-KAR

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ultimately the suit was decreed partly with costs on 18.07.2023. It seems as on today, no appeal is pending and therefore it can be said that the judgment and decree passed in OS.No.3452/2015 dated 18.07.2023 has reached finality. The suit schedule "A" property is a residential house. In order to execute the decree, the petitioners have filed this petition. During the pendency of the petition, the petitioners have filed application U/o.26 Rule 13 of CPC for appointment of commissioner to inspect the petition "A" schedule property and submit a report as to whether the suit "A" schedule property is divisible or not. The said application was allowed and advocate commissioner was appointed. On 27.01.2024, commissioner report was submitted stating that the suit schedule "A" property is not divisible. It is pertinent to note that, the respondent herein has appeared before the court in F.D.P proceedings on 27.01.2024 and till date he has not filed any objection to the commissioner report. However, in the objection filed to the above said IA’s, the respondent raised objection stating that commissioner report is biased . He has further specifically contended that the suit schedule "A" property can neither be partitioned nor sold. The said contention taken by the respondent shows that he is neither ready to partition the suit schedule property nor ready to sell the same. During the course of arguments, the learned counsel for the petitioner No.2 has clearly submitted that the petitioner No.2 is ready to sell his share to the respondent, if he is ready to purchase the same. The respondent has not agreed even to purchase the share of the petitioners. When

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NC: 2026:KHC:2192 WP No. 34178 of 2025

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HC-KAR

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the judgment and decree passed by this court in OS.No.3452/2015 has become final, it is the responsibility of both parties be abide by the decree passed by this court. No one can deny to follow the decree. So far as, filing of objection to the commissioner report is concerned inspite of lapse of nearly more than one year, the respondent has not chosen to file any objection. Apart from it, when the commissioner report is filed before the court, it becomes part and parcel of the record. It is now well settled that the commissioner report is admissible even without examining the court commissioner and marking the same before the court of law. Therefore, there is no impediment to look into commissioner report. As per the commissioner report, the property is not divisible. The respondent has also not putforth the contention that the suit schedule "A" property is divisible. When such being the case, this court has no option but to rely on the provisions of the Partition Act to comply with the decree passed in OS.3452/2015. When one of the sharer is ready to purchase the share of others sharer, he must get liberty to participate in auction. Therefore, the petitioners are justified in seeking permission of the court to participate in the auction sale. Hence, I am of the opinion that, the application filed U/s.2 and 3 of the Partition Act deserves to be allowed. Hence, I answer Point No.1 in the Affirmative.

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9. POINT NO.2 :- In view of my findings on Point No.1, I proceed to pass the following.

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O R D E R

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NC: 2026:KHC:2192 WP No. 34178 of 2025

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HC-KAR

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The applications filed by the petitioner No.1 and 2 U/s.2 and 3 of the Partition Act are allowed.

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Consequently, the suit schedule "A" property is ordered to be sold in public auction to comply the decree passed in OS.3452/2015 as same is not divisible.

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The petitioner No.2 is permitted to participate in the auction sale and purchase the property if he desires to do so. The other parties to the proceedings including respondent is also at liberty to participate in the auction.”

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As rightly held by the trial Court, in the light of the report of the Court Commissioner who has opined that the suit schedule property was incapable of being divided into three equal portions by metes and bounds and that partition and division of the suit schedule property in terms of the preliminary decree was neither feasible nor possible, the trial court was fully justified in passing the impugned order.

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Upon re-appreciation, reconsideration and re-evaluation of the entire material on record, I am of the considered opinion that the impugned order does not suffer from any illegality or infirmity

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10 -

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NC: 2026:KHC:2192 WP No. 34178 of 2025

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HC-KAR

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warranting interference by this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India as held by the Apex Court in the cases of Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC 423, K.P. Natarajan Vs. Muthalammal – AIR 2021 SC 3443 and Mohamed Ali Vs. V. Jaya & others – (2022) 10 SCC 477 .

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Accordingly, I do not find any merit in the petition and the same is hereby dismissed.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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Srl.

Sri. R Srinivasa Murthy v. Sri. R Sathyanarayanan

Case brief

What is this about?

What did the court decide?

Sri. R Srinivasa Murthy v. Sri. R Sathyanarayanan

Case brief

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