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2024 Supreme(Online)(KAR) 221
HIGH COURT OF KARNATAKA
H.P.SANDESH, J
SRI K N PRAKASH – Appellant
Versus
SMT JYOTI M – Respondent
RSA 1084/2018
SRI SIDDAPPA B.M., ADVOCATE; SRI. H.MUJTABA, ADVOCATE FOR R1 & R2; SRI M.T. JAGAN MOHAN, ADVOCATE FOR IMPLEADING APPLICANTS ON IA NO.1/2021
The court upheld the partition of property as fair and lawful, affirming the lower court's decision regarding compensation for unequal measurements.
Headnote:(A) Code of Civil Procedure, 1908 - Section 54 - Partition of property - The appellant challenged the partitioning of house property and the order to pay Rs.75,000/- for difference in measurement. The court found no grounds to interfere with the lower court's order as the partition was deemed fair based on the Commissioner’s report. (Paras 3, 6, 10)
(B) Partition Act - The appellant contended the partition was not in accordance with the amended provisions of Section 54 of CPC. The court ruled that the Commissioner’s report was acceptable and the partition was executed fairly. (Paras 10, 11)
Facts of the case:
The second appeal arises from a partition dispute regarding house property, where the appellant was directed to pay Rs.75,000/- for the difference in area between two parts allocated. The trial court appointed Commissioners for fair partitioning. (Paras 3, 4)
Findings of Court:
The court upheld the findings of the Trial Court and the First Appellate Court, confirming the fairness of the partition and the compensation amount. (Paras 8, 10)
Issues: The primary issue was whether the partition was executed fairly and in accordance with legal provisions. (Paras 10, 11)
Ratio Decidendi: The court emphasized that the Commissioner’s report was fair and accepted, and the appellant’s claims against the partition lacked merit. (Paras 10, 11)
Result: The second appeal is dismissed.
This matter is listed for admission. Heard the learned counsel for the appellant and the learned counsel for the respondents.
2. This second appeal is filed against the concurrent finding of the First Appellate Court dated 17.02.2018 passed in R.A.No.54/2017.
3. The learned counsel for the appellant submits that the FDP Court committed an error in partitioning the house property and committed an error in directing the appellant to pay an amount Rs.75,000/- to the respondents in respect of difference of measurement allotted in favour of the appellant and ought not to have passed such an order.
NC: 2024:KHC:24799 RSA No. 1084 of 2018
4. The learned counsel for the respondents submits that even the Trial Court in the final decree proceedings ordered the appellant to pay an amount of Rs.75,000/- and the respondents are ready to leave the amount of Rs.75,000/- and they will not claim any excess amount of Rs.75,000/- in respect of excess area.
5. In reply to the arguments of the learned counsel for the respondents, the learned counsel for the appellant submits that the Commissioner is not having any power to partition the property as per the amended provisions of Section 54 of CPC and the Trial Court ought not to have accepted the Commissioner report without following the provisions contemplated under the Partition Act and hence the matter requires to be admitted and frame substantial questions of law.
6. Having perused the order impugned i.e., FDP No.8/2015 and in terms of the preliminary decree passed by the Trial Court in O.S.No.52/2013, final decree proceedings is initiated and preliminary decree has not been challenged.
The FDP Court appointed the Tahasildar, Chikkamagaluru Taluk, as the Court Commissioner to effect the partition and NC: 2024:KHC:24799 RSA No. 1084 of 2018 separate division of landed properties and the Assistant Executive Engineer, PWD, Chitradurga, was appointed as Court Commissioner to effect the partition and separate division of house properties in terms of the preliminary decree in respect of suit schedule properties. Both the Court Commissioners visited the spot and made division of the landed properties to effect the partition and both the Court commissioners have filed their respective report along with survey sketch. Both the parties have not disputed about both the Commissioners’ report. The Court called for objections from both the sides on the Commissioner reports. The learned counsel on both the sides have submitted their objections to the Survey Commissioner reports. The Court Commissioner not partitioned the suit schedule properties item Nos.13, 15, 17, 18, 20, 21 and 22. The Court Commissioner without pursuing the order of the Court, he has submitted his report and the same is not tenable with respect to above properties.
Hence, ordered to re-issue Commissioners warrant with respect to above item numbers. The Commissioner has not partitioned the schedule properties in written, the Commissioner warrant is half boiled report and sketch is NC: 2024:KHC:24799 RSA No. 1084 of 2018 untenable in law. When these objections were raised, the Trial Court while disposing of FDP, formulated the point whether the Commissioners reports submitted by the Court Commissioners are acceptable and whether the petitioners are entitled to final decree as prayed.
7. The Trial Court having considered the material available on record, taken note that the only dispute is with regard to division of house property item Nos.1 and 2 by the Assistant Executive Engineer, PWD, Chitradurga as Part-A and Part-B and also taken note of that there is no dispute with regard to the division of suit schedule item Nos.3 to 22 by the Court Commissioner. The Trial Court taking into note the material on record, particularly the dimension mentioned in Part-A and Part-B in respect of item Nos.1 and 2, taken note of different areas in Part-A and Part-B. Part-A is bigger than to Part-B property i.e., measuring 5.50 inches x 80 feet and also ta
