ORDER:

This civil revision petition is directed against the order dated 19.08.2019 in I.A.No.125 of 2012 in O.S.No.14 of 1984 on the file of Junior Civil Judge, Kodangal, Mahabubnagar District.

2. Heard the learned counsel for the petitioner and the learned counsel for the contesting respondent. Perused the record.

3. Respondent No.1 is the plaintiff and the revision petitioner is defendant No.1 and respondent No.2 is defendant No.2 in O.S.No.14 of 1984 filed for partition and separate possession. The said suit was decreed and preliminary decree was passed on 29.09.1986. Subsequently, respondent No.1 filed I.A.No.125 of 2012 to pass final decree by appointment of commissioner for allotment of 1/3rd share to her. The trial Court, vide order dated 19.08.2019 allowed the said application by appointing Advocate commissioner. Challenging the said orders, the present revision is filed.

4. Learned counsel for the petitioner submits that the trial Court has committed error in appointing an Advocate Commissioner after 34 years without noticing that the decree is barred by limitation. He further submits that the petitioner and respondents are brothers and they have compromised and settled the matter and partitioned the schedule properties into equal shares with metes and bounds and the same was mutated in revenue records. He further submits that respondent No.1-plaintiff sold his share of property to one Bheema Chary under registered sale deed and with malafide intention only to grab the land of the petitioner, the present application is filed.

5. Per contra, learned counsel for the respondent submits that the applications filed for drawing up of a final decree would not be subject to any period of limitation in a partition suit. He further submits that the trial Court has rightly appointed the Advocate Commissioner and the present revision is not maintainable and same is liable to be dismissed.

6. Respondent No.1-plaintiff, petitioner-defendant No.2 and respondent No.2 are brothers. Respondent No.1 filed the main suit for partition and separate possession and the same was decreed ex parte by allotting 1/3rd share to him in the suit schedule properties.

7. Respondent No.1 filed the present application to pass final decree for division of the properties and for allotting 1/3rd share to him pursuant to preliminary decree passed in O.S.No.14 of 1984. The contention of learned counsel for petitioner is that the preliminary decree is barred by limitation, which has to be executed within (12) years.

8. In a suit for partition or separation of a share, the prayer is not only for declaration but also division of share by metes and bounds. In a suit for partition or separation of share, the Court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. The decision on these two issues would be by way of preliminary decree under Order 20 Rule 18 (1) of Code of Civil Procedure, 1908 (for short “C.P.C.”). The next sub-division of the properties by metes and bounds by way of physical inspection and measurements and calculations etc., are the issues of final decree under Order 20 Rule 18 (2) of C.P.C.

9. Now, the question for consideration is; whether in a suit for partition or separation of share, whether the provisions of the Limitation Act are applicable to an application for drawing-up of a final decree?

10. The said question is no more res integra. The Apex Court in Shub Karan Bubna @ Shub Karan v. Sita Saram Bubna1 at para

18.3 held as under:

“ As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until partition, that is, division by metes and bounds takes place by passing a final decree. An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, i