Accurate ascertainment of property extent is essential for equitable partition, and errors in this respect necessitate remand for fresh consideration to achieve fairness.

JUDGMENT :

M.G.S. Kamal, J.

1. A preliminary decree which was passed in the year 1964, is yet to see the light of the day. Besides, passage of time and intervening circumstances have reduced even the extent of land which was originally sought to be partitioned amongst the sharers. This constant fluctuation of the extent of land coupled with alienation made by some of the parties to the suit has resulted in perennial uncertainty lingering even after six decades of passing the preliminary decree.

2. The present Miscellaneous Second Appeal is filed by defendant No.2 who is one of the purchasers of a portion of the suit schedule property from defendant No.1. In the final decree proceedings in FDP No.24/1982, on 01.04.2004 following order came to be passed:

“ORDER

Final decree petition is hereby allowed.

Proposal made by the commissioner is hereby accepted subject to following modifications.

Proposals of area wise divisions as per 'B'schedule of the commissioner reported is accepted and lands shall be allotted to the plaintiffs, defendant no.1 and defendant no.15, as per the report in ‘B’ schedule.

‘B’ schedule report and map is treated as part of the final decree. By way of equitable partition, property purchased by defendants' No.2 to 4 is allotted to the share of defendant no.1.

In order to equalise the value of 3/5^th share of plaintiffs and 1/5^th share of defendant no.15, it is ordered as under:

Defendants’ no.1A to 1E, defendants' no.2A to E, defendants no.3A to 3B, defendant no. 4A to 4F are directed to pay Rs. 1,25,80,559/-by way of owelty to the plaintiffs.

Defendants no. 1A to IE, defendants no.2A to 2E, defendants no.3A to 38, defendant no 4A TO 4F are directed to pay Rs.1,37,23,430/- by way of owelty to the defendant no. 15.

Contribution towards shares of owelty by defendants' no.2 to 4 is proportionate to the extent of the land they purchased.

For the purpose of determination of rate of value of the land, actual possession of the property by defendant no.2 to 4, tenants, 'A' schedule report and map prepared by the commissioner is treated as part of Final Decree.

Draw Final Decree accordingly.”

3. By the aforesaid order, defendants No.1 (a-e), 2(a-e), 3(a-b) and 4(a-f) are directed to pay Rs.1,25,80,559/- to the plaintiffs and Rs.1,37,23,430/- to defendant No.15 respectively by way of owelty. It is this direction which triggered filing of regular appeals by the defendants in RA Nos.87/2004, 114/2004, 115/2004 and 118/2004 before the First Appellate Court. Considering the grounds urged, the First Appellate Court framed the following points for consideration:

“1. What are the properties available for partition and what is the extent of the area?

2. Whether the defendants No.2 to 4 are the bonafide purchasers for value without notice?

3. Whether the valuation of the properties assessed by the court commissioner is accepted by the court below is proper and correct?

4. Whether the trial court was justified in granting owelty to the plaintiffs?

5. Whether the order passed by the court below is sustainable in law? If no to what relief the parties are entitled for?

6. What order?”

4. While adverting to the aforesaid points, the First Appellate Court on consideration of material placed on record has found that originally though three items of properties namely R.S.No.611, 613 and 374 was the subject matter of suit, the actual land that was available for partition was only in RS No.611 and RS No.374. The First Appellate Court has found even the measurement of the land in RS No.611 was reduced from what was mentioned at the time of filing of the suit. In that originally actual extent of land in RS No.611 was shown as 8 acres 39 guntas of which a portion is stated to have been acquired by the State and another portion stated to have been granted by the Land Tribunal in favour of certain tenant. Thereafter, actual available land was stated to be 3 acres 38 guntas. Similarly, the original extent of land in RS No.374 was shown as 1 acre 16 guntas which afte