The court reaffirmed that partition must balance the established rights of original owners against claims of subsequent purchasers, applying equitable principles under the Partition Act, 1893.

JUDGMENT :

T.G. SHIVASHANKARE GOWDA, J.

In this appeal, respondent Nos.5 and 6 have challenged the order passed in Final Decree Proceedings No.23/2011 on 28.11.2018 by the Principal Senior Civil Judge and C.J.M., Ballari (for brevity ‘the FDP Court’).

2. The appellants were the respondent Nos.5 and 6, respondent No.1 was the petitioner and respondent Nos.2 to 5 were respondent Nos.1 to 4 before the FDP Court. Hence, for the sake of convenience, parties shall be referred to as per their status before the FDP Court.

3. The brief facts of the case are, the petitioner as plaintiff has filed a suit in O.S.No.74/2006 against the respondent Nos.1 to 4/defendants No.1 to 4, seeking grant of partition and separate possession of her share in three properties consists of item No.1, a house property in Kh.No.9, K.H.B.Colony, 1^st Cross, Gandhinagar, Ballari and item Nos.2 and 3, two landed property situated at Somasamudra village, Ballari taluk. The suit came to be decreed by judgment and decree dated 16.12.2010 granting 6/25^th share in favour of the petitioner, 6/25^th share each in favour of respondent Nos.1 to 3 and 1/25^th share in favour of respondent No.4. Challenging the said judgment and decree, the defendant No.4 has filed RFA No.3052/2011, defendant Nos. 1 to 3 have filed RFA No.3044/2011. By common judgment dated 29.11.2002, both the appeals came to be dismissed by this Court. Thereby, the litigation reached the finality.

4. In execution of preliminary decree, the plaintiff as petitioner has filed F.D.P.No.23/2011. In the F.D.P. proceedings, the present appellants were arrayed as respondent Nos.5 and 6, as purchasers of item No.1 of the suit schedule property from respondent No.2 as per the sale deed dated 24.11.2005. Before the F.D.P. Court, originally the respondent Nos. 5 and 6 placed ex-parte. On 27.04.2017, they have filed an I.A.No.V under Order X Rule 7 read with Section 151 of the Code of Civil Procedure. The said application came to be rejected on the ground that, in the suit they were not granted any preferential right. Against the said order, they have filed W.P.No.109414/2017, before this Court. The said writ petition came to be dismissed on 20.09.2018, however permitting the respondent Nos. 5 and 6 to participate in the F.D.P. proceedings, on payment of cost of Rs.5,000/- to the petitioner.

5. The F.D.P. Court by order dated 14.03.2017 has appointed a City Surveyor of ADLR Office, Ballari in respect of item No.1 and Taluk Surveyor in respect of item Nos.2 and 3 as Court Commissioners and to suggest the feasibility of effecting division of the properties. The City Surveyor filed a report on 22.09.2017 mentioning that division of item No.1 is not possible unless demolition of the building. As per order dated 06.02.2018, FDP Court issued a fresh direction to the Court Commissioner to submit possible demarcation of item No.1. On 20.02.2018, the Court Commissioner has filed a fresh proposal in ‘A’ and ‘B’ form. On 12.03.2018, respondent No.2 proposed to buy the share of the petitioner at its market value, which came to be rejected by the petitioner.

6. The appellants/respondent Nos.5 and 6, filed objections to the report of the Court Commissioner and also sought for an enquiry regarding feasibility of effecting partition of the properties. After hearing both parties, the FDP Court has rejected their objections. Appellants/Respondent Nos.5 and 6 have also filed I.A.No.6 under Section 3 (1) read with Section 2 of the PARTITION ACT , 1893 (‘the Act’ for brevity) seeking permission to purchase item No.1 at the market value pertains to share of the petitioner. The application came to be rejected and the FDP Court allowed the petition, allotted the share in favour of the petitioner as suggested by the Court Commissioner and order to draw final decree. Aggrieved by the same, appellants/respondent Nos.5 and 6 have filed this appeal on various grounds.

7. We have heard the arguments of Sri.Gode Nagaraja, learned counsel for the appellants/