The court affirmed that due process is crucial in partition proceedings, requiring court commissioners to adhere strictly to procedural mandates, including personal property inspections for accurate valuations.

JUDGMENT :

ASHOK S. KINAGI, J.

1. This Miscellaneous Second Appeal is filed by the appellant challenging the judgment and decree in R.A. No.175/2015 dated 08.03.2017, by the learned IX Additional District and Sessions Judge, Belagavi.

2. For convenience, the parties are referred to based on their rankings before the FDP Court. The appellant was the petitioner, and the respondents herein were the respondents before the FDP court.

3. Brief facts, leading rise to the filing of this appeal are as follows:

3.1 The petitioner filed a suit against the respondents in O.S. No.46/1984 for a partition and separate possession and for taking accounts. After a full-fledged trial, the suit was decreed vide Judgment dated 20.07.1993, holding that the petitioner is entitled to a 1/3^rd share in item No.1 of the ‘B’ and ‘D’ schedule properties, and also a 1/4^th share in item Nos.2 to 4 of the ‘B’ schedule properties. The Respondents, aggrieved by the Judgment and preliminary decree passed in O.S.No.46/1984, preferred an appeal in RFA No.282/1993 before this Court. The said appeal was partly allowed, and the Judgment and preliminary decree passed in the aforesaid suit was modified. The Respondents ,aggrieved by the Judgment and decree passed by this Court in RFA No.282/1993, preferred a Special Leave Petition before Hon’ble Apex Court in SLP No.5011/1997, which came to be dismissed. The petitioner is not entitled to any share in item Nos.2 to 4 of the ‘B’ schedule properties. The petitioner filed a Final Decree Proceedings in FDP No.1/1994 on the file of the learned I Addl. Senior Civil Judge, Belagavi. The respondents appeared through their counsel, and filed their common objections, and accordingly, prays to dismiss the petition.

3.2 The FDP Court appointed two Court Commissioners to ascertain the share in the commercial establishment, i.e., respondent No.6- Company, including profit, etc., and directed to take the assistance of an expert Engineer and the chartered accountants. The two Commissioners submitted a report, which was opposed by Respondents Nos. 1 and 4. The Court Commissioners were examined as CW-1 and CW-2 and no documents were marked.

3.3 The FDP Court allowed the petition with costs vide order dated 04.07.2015, and the Commissioners’ report was fully accepted regarding all suit schedule properties. It was ordered that the plaintiffs and defendant No.2 shall put in possession of their respective portions shown by the Court Commissioners, subject to the provisions of the Cantonment Act. It is also held that the petitioner is entitled to recover a sum of Rs.35,20,498/- along with interest at the rate of 12% per annum from 04.05.2011 till realization against the respondent No.1, and also held that defendant No.2 is entitled to recover a sum of Rs.9,18,717/- from defendant No.1. The plaintiff is also entitled to receive Rs.14,916/- along with interest at the rate of 12% per annum from 29.08.2011 till realization against respondent No.1, as per the clause 7 of the decree passed by this Court in RFA No.282/1993. Respondent Nos. 1, 4 and 5, aggrieved by the final decree passed in FDP No.1/1994 preferred an appeal in R.A.No.175/2015 on the file of the learned IX Additional District and Sessions Judge, Belagavi.

4. The First Appellate Court, after hearing the learned counsel for the parties, and reappreciating the entire evidence on record, allowed the appeal vide judgement dated 08.03.2017, and set aside the final decree dated 04.07.2015, and remitted the matter to the trial Court with a direction to appoint the Tahasildar, Belagavi, as Court Commissioner to submit the partition proposal of the plaintiff’s share in the ‘D’ schedule property, and to appoint the very same Cou