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IN THE HIGH COURT OF KARNATAKA, DHARWAD
M.G.S. Kamal
Bhau S/O. Baburao Sainuche – Appellant
Versus
Mariambi Hussainsab Tahsil – Respondent
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
Accurate ascertainment of property extent is essential for equitable partition, and errors in this respect necessitate remand for fresh consideration to achieve fairness.
The court affirmed that a partition executed based on a Commissioner's report is valid and should not be overturned without substantial justification, maintaining the finality of previous decrees.
In a partition suit, the court has the power to pass a second preliminary decree if circumstances justify it, such as the death of parties or sale or loss of properties. However, this power can only ....
An appellate court's order of remand must not introduce new issues not raised by the parties and should only be issued when necessary for justice, adhering to existing pleadings and evidence.
A property not capable of partition due to practical constraints may be sold under the Partition Act, despite objections from co-owners regarding involuntary sale.
Ambiguity in property division and lack of pathway to reach the allotted portion can lead to the setting aside of judgment and final decree, and remand for re-survey and division of the land.
Judicial efficiency mandates that remand for fresh disposal should only occur when necessary; a remanding court must determine the parties' shares or justify retrial necessity, which was neglected he....
The final decree in a partition suit must comply with the preliminary decree, which is binding, and any deviations must be justified under proper legal procedures.
Second appeal – Suit for partition - Second appeal - Unless defendants also place reliable and convincing materials to substantiate same and when defendants have failed to substantiate their objectio....
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