The court affirmed that under the Partition Act, when division by metes and bounds is impractical, public auction of shared property is permissible, with priority given to co-sharers only if they express intent to buy.

ORDER :

M.NAGAPRASANNA, J.

The petitioner - the respondent in FDP.No.181/2011, is at the doors of this Court seeking slew of prayers, which are as follows:

“(i) Issue a writ of certiorari or any other writ, order, rule or direction to quash and set aside the concluding portion of the Order dated 14 November 2024 (ANNEXURE – A) passed by the XVIII Additional City Civil and Sessions Judge, Bengaluru (CCH-10) in FDP 81/2011, wherein it held that the Petitioner’s claim for mesne profits will be considered only after completion of the auction process.

(ii) Set aside the order dated 26.11.2024 (ANNEXURE – A) passed by the XVIII Additional City Civil and Sessions Judge, Bengaluru (CCH-10) in FDP 81/2011 whereby the Petitioner’s bid for purchase of Schedule Property is not acquiesced.

(iii) Direct the Trial Court to determine the Petitioner’s share in the rental income from the Schedule Property in accordance with law;

(iv) Direct the Trial Court to conduct the proceedings for sale / auction of the Schedule Property strictly as per the provisions of Partition Act, 1893.

(v) Issue such others or directions that this Hon’ble Court may deem fit to pass in the facts and circumstances of the case, including costs, in the interests of justice and equity.”

2. Facts in brief, germane, are as follows:

Before embarking upon the consideration of the issue on its merit, I deem it appropriate to notice the ranking of the protagonists in the subject petition. The petitioner is the respondent in the FDP proceedings and respondent Nos.2 to 4 are the legal representatives of deceased respondent No.2, who were represented as petitioner Nos.2 (a) to (c) before the concerned Court, as the second respondent one Smt. S.P.Poornima dies during the pendency of final decree proceedings and respondent No.1 is no more and respondent No.5 is one of the class I legal heir. The first respondent is the wife of one late S.P.Satish; S.P.Satish dies in the year 1989 leaving behind the said Smt. S.P.Poornima and two children including the present petitioner. A suit is instituted in O.S.No.6294/2003 seeking partition and separate possession by the respondents herein. The said suit comes to be decreed in the year 2006 granting 1/4^th share of the scheduled property to the petitioner. The petitioner challenges the said judgment and decree before this Court in R.F.A.No.1288/2006, which comes to be dismissed on 05.07.2011. The present petitioner challenges the said dismissal before the Apex Court in SLP (C) No.29718/2011, which also comes to be disposed, in terms of an order dated 09.12.2011. It is thereafter, the respondents institute final decree proceedings in FDP.No.181/2011 to enforce the preliminary decree passed in O.S.No.6294/2003 and demarcate the shares of the parties.

2.1. The concerned Court appoints one E. Kiran Kumar as the Court Commissioner (hereinafter referred to as ‘the first Court Commissioner’). The first Court Commissioner issues a notice proposing to inspect the property on 24.11.2011. He visits the property and submits a report on the inspection so conducted. The concerned Court in terms of its final order dated 12.11.2013, on receipt of the report from the first Court Commissioner orders demolition of the existing building on the schedule property. Against the said final order, the respondents prefer an appeal in RFA.No.1988/2013 contending that the property cannot be divided by metes and bounds and sought that the schedule property be sold by public auction. The petitioner files another appeal in RFA.No.70/2014, contending otherwise.

2.2. On 11.01.2021, a coordinate