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2014 Supreme(Kar) 1003
IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)
A.V. Chandrashekara, J.
Mohammad Hasan Shaikh Ali Saheb Mirzani - Appellants
Vs.
Abdul Rahiman Shaikh Ali Saheb Mirzani – Respondent
Regular First Appeal No. 3031 of 2010
Decided On : 07.03.2014
For The Appellant :S.G. Kadadakatti, Advocate
For The Respondents:Sriyuths R.P. Hegde and Suresh N. Kini, Advocates
The need for a competent engineer to assess the value of the residential building in partition proceedings under the Partition Act.
Headnote:
Partition Act - Valuation of Property - Competent Engineer to Assess Residential Building
Fact of the Case:
The appeal arose from a final decree proceeding regarding partition and separate possession of properties. The FDP Court had ordered for the sale of the property and division of the sale proceeds between the sharers. A memo was filed under Section 3 of the Partition Act, stating the willingness to buy the share of other parties at the valuation fixed by the Court. The valuation of the residential building was disputed, and the matter had been in litigation for over 9 years.
Finding of the Court:
The Court allowed the appeal and remitted the matter to appoint a competent engineer to inspect the residential house and submit a report on its dimension, condition, and present value. The FDP Court was directed to dispose of the matter promptly, without interference from the appellate court in fixing the market value.
Issues: Dispute over the valuation of the residential building in a partition proceeding under the Partition Act.
Ratio Decidendi: The Court emphasized the need for a competent engineer, such as an Assistant Engineer of PWD or a known architect, to assess the residential building's value. It directed the FDP Court to prioritize the matter and dispose of it promptly.
Final Decision: The appeal was allowed, and the matter was remitted to the FDP Court for the appointment of a competent engineer to assess the residential building's value and for prompt disposal of the matter.
A.V. Chandrashekara, J.
1. Advocates appearing for the parties are present. Heard the arguments. Present appeal filed under Section 96 of Civil Procedure Code, 1908 has arisen out of a considered order passed on 6-2-2010 on a memo filed under Section 3 of the Partition Act, 1893 in FDP No. 4 of 2006, which was pending on the file of the Court of Civil Judge (Senior Division), Kumta. Appellant herein is the defendant 1 in a case bearing FDP No. 4 of 2006. The said final decree proceedings has arisen out of the judgment and decree passed in O.S. No. 54 of 2002, dated 31-5-2005. The said judgment and decree passed by the Trial Court regarding partition and separate possession has become final. Respondent 1 herein Mr. Abdul Rahiman is the sole petitioner in FDP No. 4 of 2006. Other respondents are respondents 2 to 8 in the said final decree proceedings. Respondent 2-Mohammed Jamal in the Trial Court is dead and his legal representatives have been brought on record in this Court. Preliminary decree has been drawn in the original suit to an extent of 7 guntas and 8 annas in Sy. No. 38/1A and 5 guntas in Sy. No. 39/2A and a residential house existing in item 1 bearing Sy. No. 38/1A measuring 5 guntas. The FDP Court had appointed a Commissioner to send a report as to whether the property could be conveniently divided. By virtue of order dated 1-12-2009, FDP Court had ordered for sale of the property and to divide the sale proceeds between the sharers as per their share. Later on a memo was filed under Section 3 of the Partition Act by the plaintiff-Abdul Rehaman stating that he was ready and willing to buy the share of other parties by the valuation fixed by the Court. Accordingly, Advocate-Commissioner has submitted a report stating that the house cannot be conveniently divided. Advocate-Commissioner had visited the spot along with the Taluka Surveyor, inspected the spot and submitted a report. Later on, a report was solicited by the FDP Court from the about the valuation of both the properties. It is mentioned that he market value of item No. 1 is Rs. 4,87,500/- and item 2 measuring 8 annas is Rs. 32,500/- in respect of the land and building value is Rs. 6,15,144/-. The total value of both these items inclusive of residential building is shown as Rs. 11,35,144/-. The said valuation is done on the basis of the guidance value.
2. Counsel for the applicant has submitted the said memo on 21-1-2010 indicating the total market value as Rs. 11,35,144/- and is stated to have based the same on the guidance value fixed by the Department of Stamps and Registration.
Insofar as the market value of the agricultural land is concerned guidance value will be the basis. Insofar as the residential building is concerned, the competent person would be the Architect or Engineer. Admittedly, the residential house is almost 35-40 years old and necessarily there will be depreciation. The Engineer alone would be a competent person to assess the exact value of the building in question as on today. Therefore, it would be feasible if the FDP Court seeks a report from the jurisdictional PWD Engineer or a Competent Architect to submit a report regarding the valuation of the building, in which first respondent/defendant is stated to be living. Anyhow, the Advocate Sri. M.S. Bhagwath assisted by the Taluk Surveyor had already submitted a report and it appears it has not been objected to by anybody and therefore, it has been accepted for all practical purposes.
3. Insofar as valuation of building is concerned, as rightly pointed out by the learned Counsel for the appellant, a technical person like an Architect or Civil Engineer would be the competent person and the Court may appoint the Assistant Engineer or Assistant Executive Engineer of PWD or any known architect to visit the spot and submit a report about the dimension of the building, the condition of the building and the present value of the building. Hence, the matter needs to be remitted to the FDP Cou
