1.

This appeal is directed against the impugned order

dated 05.11.2022 passed in FDP No.70/2022 by the LXIX

Additional City Civil and Sessions Judge, Bengaluru (for short “the

Trial Court”), whereby the said petition filed by respondent No.1

under Order 20 Rule 18 r/w. 151 CPC was allowed by directing

drawing up of final decree by allotting ground floor of the suit

schedule property in favour of respondent No.1 and first floor in

favour of the appellant.

2.

Heard learned counsel for the appellant, learned

counsel for the respondents and perused the material on record.

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3.

The material on record discloses that respondent No.1

instituted a suit in O.S.No.3564/2020 against the respondents for

partition and separate possession of her share in the suit schedule

property. In the said suit, respondent Nos.1 and 2 herein were

arrayed as defendant Nos.1 and 2 and they are none other than

siblings of the appellant. The appellant and respondent Nos.1 and

2 had one more brother, Sri. Srinivas, who expired and respondent

Nos.3 and 4 are the wife and daughter of said Srinivas. In the said

suit filed by the appellant herein, respondent No.1-defendant No.2

not only contested the suit, but also put forth a counter claim for

partition and separate possession of her ½ share in the suit

schedule property. By judgment and decree dated 10.02.2022, the

Trial Court dismissed the suit filed by the appellant-plaintiff and

allowed the counter claim filed by respondent No.1-defendant No.2,

thereby declaring that the appellant and respondent No.1 were

entitled to ½ share each in the suit schedule immovable property.

4.

It is relevant to state that the said preliminary decree

passed in O.S.No.3564/201 declaring that the appellant and

respondent No.1 were entitled to ½ share each has attained finality

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and the same has become conclusive and binding upon the

parties.

5.

Subsequently, respondent No.1 instituted the instant

FDP No.70/2022 to draw up final decree in terms of the aforesaid

preliminary decree. In this context, it is pertinent to note that the

suit schedule property is immovable property comprising of a

building consists of ground and first floor. The said FDP

No.70/2022 having been opposed by the appellant herein, the Trial

Court proceeded to pass the impugned order directing drawing up

of final decree by allotting ground floor in favour of respondent No.1

and first floor in favour of the appellant, aggrieved by which the

appellant is before this Court by way of the present appeal.

6.

A perusal of the material on record including the

impugned order will indicate that prior to directing drawing up of

final decree by allotting ground floor in favour of respondent No.1

and first floor in favour of the appellant, the Trial Court has failed to

follow the procedure prescribed in Section 2 of the Partition Act,

1983 r/w. Order 26 Rule 13 CPC, which contemplate appointment

of a Court Commissioner to ascertain and submit report regarding

feasibility and possibility of partition and division of the suit

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schedule property by metes and bounds prior to passing final

decree. This procedural irregularity/illegality/impropriety in the

proceedings conducted by the Trial Court in not appointing a Court

Commissioner for the purpose of ascertaining the feasibility of

partition/division of the suit schedule property by metes and bounds

prior to passing final decree is sufficient to vitiate the impugned

order, which deserves to be set aside and the matter be remitted

back to the Trial Court for reconsideration afresh in accordance

with law.

7.

In the result, I pass the following:

ORDER

i.

The appeal is hereby allowed.

ii.

The impugned order dated 05.11.2022 passed in FDP

No.70/2022 by the LXIX Additional City Civil and Sessions

Judge, Bengaluru is hereby set aside.

iii.

The matter is remitted back to the Trial Court for

reconsideration afresh in accordance with law.

iv.

Both appellant and respondent No.1 undertake to appear

befor