ORDER

The defendant in FDP No.4/2020 on the file of the Additional Senior Civil Judge and JMFC, KGF, has filed this petition challenging the correctness of the order dated 19.02.2022, accepting the report of the surveyor dividing the suit properties into five shares.

2. The respondents herein filed O.S.No.46/2014 for partition and separate possession of their respective shares in the suit schedule properties. The said suit was decreed declaring that the respondents were entitled to 1/10th share in the suit schedule properties. Following this, an appeal was filed in R.A.No.92/2018 and the First Appellate Court confirmed the judgment and decree of the Trial Court. Following this Final Decree Proceeding was initiated in FDP No.4/2020, where the Court appointed a Commissioner to divide the suit properties as per the preliminary decree. In the meanwhile, the Apex Court in the case of VINEETHA SHARMA Vs. RAKESH SHARMA reported in (2020) 9 SCC 1 held that the daughters were entitled to equal share in the suit properties. Taking note of this changed position of law, the revenue officers effected the division as per the judgment of the Apex Court and demarcated the suit properties into five equal shares. This report of the Revenue Officers was accepted in terms of the impugned order.

3. The petitioner is therefore, before this Court challenging the said order on the ground that the Revenue Officers had no authority to take cognizance of the changed position of law and divide the suit properties into five equal shares, as against the preliminary decree, which mandated that the properties should be divided into ten equal shares. He further contended that as per Section 54 of the Code of Civil Procedure, whenever, a decree of partition is passed, the Court may demarcate the properties based on the report of the Revenue Officer not below the rank of the Tahsildar. But in the present case, the report is not placed by the Tahsildar, but is placed by the Surveyor.

4. Learned counsel for the respondents do not dispute the fact that there was no direction to the Revenue Officers to demarcate the suit properties into five equal shares and that the Revenue Officers have taken note of the changed position of law and have demarcated the properties into five equal shares. He also does not dispute the fact that the Tahsildar, who was supposed to submit the report to the Court, did not do so, but the report is submitted by the Surveyor appointed by the Tahsildar, to divide the suit properties.

5. I have considered the submission made by Sri Jagadeesha K.J., learned counsel for the petitioner and Sri Hegde V.S., learned counsel for respondents 1 to 9.

Perused the material on record.

6. The Apex Court in the case of VINEETHA SHARMA cited supra held that daughters are entitled to equal share in the suit property subject to two conditions mentioned in proviso to Section 6 of the Hindu Succession Act (Amendment) Act, 2005. The Final Decree Court ought to have taken this into account, before directing the Revenue Officers to demarcate the properties as per the changed position of law. The revenue Officers certainly did not have the power to over reach or grant a higher share than what was mentioned in the preliminary decree.

7. In that view of the matter, the report of the surveyor in dividing the properties into five equal shares is wholly improper and deserves to be interfered with. As also rightly contended by the learned counsel for the petitioner, when a decree of partition is sought to be enforced, the Court may demarcate the properties based on the report of the Revenue Officer not below the rank of a Tahsildar. The documents produced on record indicates that the report is not placed before the FDP Court by the Tahsildar, but is placed by the Surveyor appointed by the Tahsildar.

8. In that view of the matter, the impugned order passed by the Trial Court accepting the report of the Surveyor deserves to be set at naught. Consequently the appeal is allowed. T