A final decree in partition proceedings cannot be contested based on previous appeals of the preliminary decree without valid grounds, reaffirming the binding nature of prior judgments.

JUDGMENT :

ANU SIVARAMAN, J.

This appeal is filed challenging the order dated 23.08.2021 passed by the VI Additional City Civil and Sessions Judge in FDP No.141/2010.

2. We have heard Shri. Manian K.B.S, learned counsel appearing for the appellants, Shri. S. Venkateshwara Babu, learned counsel as instructed by Shri. A Shivarama, learned counsel appearing for respondents No.1(a) to 1(c) and Shri. Arun Govindraj, learned counsel appearing for respondents No.2 and 4.

3. For the sake of convenience, the parties are referred to as per their ranking before the trial Court.

4. Nichaldas Motoomal, father of defendant No.1 was a partner in M/s Nichaldas Gopaldas and Company ('firm' for short). He purchased Schedule A, C and D properties in his wife Savithri Devi's name using partnership income. After his death, his son Prakash Nichaldas became a partner and Prakash died leaving behind his pregnant wife and minor son, the plaintiff. Defendant No.2 converted to Islam and was disqualified from claiming any shares. Prakash's wife and the plaintiff filed O.S.No.117/1984, claiming the business was a Joint Hindu Family Business and sought Prakash's share in the firm. The suit was compromised wherein the plaintiff relinquished all claims over the suit schedule properties in exchange of monetary compensation as full and final settlement.

5. Respondent No.2 filed O.S.No.8516/1999 before the XXXVIII Additional City Civil Judge, Bengaluru ('trial Court' for short) seeking partition and separate possession of 1/4^th share in the suit schedule A, B, C, E, F and G properties and 1/2 share in suit schedule D property, to declare the comprise decree as null and void and to direct defendant No.1 to render accounts of the partnership firm and pay mesne profit for the suit schedule properties.

6. The suit was partly decreed, holding that the plaintiffs, defendants No.3 and 4 are entitled to partition and separate possession of their 1/4^th share in the suit schedule properties and Savithri Bai's 1/4^th share in the assets and business of the firm. The plaintiff was also held entitled to mesne profits from date of suit till date of possession of their 1/4^th share. Defendant No.1 was directed to render accounts of the firm for the period from the date of filing the suit till drawing up of final decree.

7. Aggrieved by the judgment passed by the trial Court, defendants No.1, 2 and 5 filed RFA No.1374/2009. The plaintiff also filed cross objections challenging the trial Court's decision denying them a share in Schedule D and G properties. The Division Bench of this Court upheld the trial Court's judgment observing that the trial Court had correctly appreciated the oral and documentary evidence on record and arrived at proper findings on all issues. The appeal and cross objections were dismissed finding no grounds for interference with the decision of the trial Court.

8. Defendant No.3 and the plaintiff filed FDP No.141/2010 seeking division of suit schedule properties A to C, E and F by metes and bounds. A Civil Engineer was appointed as Court Commissioner to inspect and submit a report. The feasibility of divisions as suggested by the Commissioner was not accepted by the parties. The Court allowed the petition observing that division of properties was not feasible as the parties did not mutually agree and held that the parties can sell the same in public auction and apportion the sale proceeds between them as per their respective share as declared in the decree.

9. Defendant No.1 prefers this appeal seeking to declare the decree dated 12.06.2009 passed by the trial Court