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Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
The courts emphasize that partition suits are ongoing until the final decree is passed, and possession or rights to fragmented portions with contingent interests are recognized post-finalization ["Dayaratne Jayasuriya Debarawewa Tissamaharamaya Plaintiff vs 1. Warusha Hennadige Heen Nona (Deceased) 1A. Indralatha Irene Jayasuriya Both Of Debarawewa - Supreme Court"].
Analysis and Conclusion:
In property disputes, few issues are as complex as partitioning jointly owned land, especially when exact boundaries aren't crystal clear from the start. A common question arises: Can a suit for partition result in a decree of fragmented portions permissible with contingent survey numbers? This query touches on critical aspects of civil procedure, survey processes, and court powers in India. For landowners, heirs, or co-owners navigating inheritance or family divisions, understanding this can prevent prolonged litigation.
This article breaks down the legal permissibility, drawing from key judgments and procedural rules. Note: This is general information based on precedents and should not be taken as specific legal advice. Consult a qualified lawyer for your case.
A partition suit seeks to divide joint property among co-owners according to their shares. Under the Code of Civil Procedure, 1908 (CPC), these suits often involve a preliminary decree declaring shares, followed by a final decree with physical division by metes and bounds.
Courts typically issue preliminary decrees first, as the suit does not come to an end with the passing of the preliminary decree but... continues up to the stage the final decree is prepared. More than one preliminary decree can be passed if needed. Narayan Chandra Datta @ Narayan Datta VS Aruna Dutta - 2023 Supreme(Cal) 767
This flexibility allows for initial share declarations, with demarcation handled later via surveyors or commissioners under Order XXVI Rules 9 and 13, CPC.
Yes, courts can decree partition into fragmented portions, even if not fully contiguous or precisely mapped at the decree stage. The main legal finding is that such decrees are permissible and executable through survey-based demarcation, including contingent survey numbers, if the decree authorizes it explicitly or implicitly. Prabhakar Gones Prabhu Navelkar (Dead) Through Lrs VS Saradchandra Suria Prabhu Navelkar (Dead) Through Lrs. - 2019 0 Supreme(SC) 907
Key points include:- Courts hold authority to order fragmented partitions where exact survey numbers aren't fixed initially, as long as demarcation is contemplated. Prabhakar Gones Prabhu Navelkar (Dead) Through Lrs VS Saradchandra Suria Prabhu Navelkar (Dead) Through Lrs. - 2019 0 Supreme(SC) 907- Preliminary demarcations based on tentative survey numbers can be finalized by survey authorities or the Collector. Prabhakar Gones Prabhu Navelkar (Dead) Through Lrs VS Saradchandra Suria Prabhu Navelkar (Dead) Through Lrs. - 2019 0 Supreme(SC) 907- Survey numbers in decrees may be contingent, with later proceedings assigning specifics to fragments. Concord Co-operative Housing Society VS Amedmal Bhatewada (deceased) Chandrakala Shantilal Lunawat - 2023 0 Supreme(Bom) 285
For instance, a judgment partly decreed a suit, ordering: Hence preliminary decree is passed for separation of the plaintiffs and defendants... to be demarcated with the help of Collector or any gazette subordinate of the Collector as provided under Sec. 54 C.P.C. Prabhakar Gones Prabhu Navelkar (Dead) Through Lrs VS Saradchandra Suria Prabhu Navelkar (Dead) Through Lrs. - 2019 0 Supreme(SC) 907 This shows courts empowering fragmented divisions via post-decree surveys.
Survey numbers (unique land identifiers) often form the basis for partitions, but they needn't be final upfront. Decrees can reference provisional numbers (e.g., Nos. 17/1, 27/1), directing: the preliminary decree is for separation of the shares to be demarcated with the help of Collector... respecting the possession of third parties. Prabhakar Gones Prabhu Navelkar (Dead) Through Lrs VS Saradchandra Suria Prabhu Navelkar (Dead) Through Lrs. - 2019 0 Supreme(SC) 907
Section 54 CPC supports this by allowing partition via commissions to surveyors, accommodating flexible survey descriptions. Actual demarcation and mutation (official record updates) finalize the process. Concord Co-operative Housing Society VS Amedmal Bhatewada (deceased) Chandrakala Shantilal Lunawat - 2023 0 Supreme(Bom) 285
In one case, a preliminary decree declared shares in land (0A.1R.39P.), ordering partition, with surveys limited to disputed portions: me to survey only this portion as he has filed action for this portion only. UBERIS v. JAYAWARDENE This reinforces that surveys can address fragments contingently.
Courts issue commissions for surveyors to effect partitions per declared rights, even with provisional surveys. This aligns with rules where physical division follows share determination. Concord Co-operative Housing Society VS Amedmal Bhatewada (deceased) Chandrakala Shantilal Lunawat - 2023 0 Supreme(Bom) 285
Final decree proceedings aren't static. Supervening events (e.g., new constructions) may warrant amending preliminary decrees: the court can amend the preliminary decree or pass another preliminary decree re-determining the rights. Kanai Paul, son of Nandalal Paul VS Binoy Bhusan Paul @ Binoy Pal, son of late Nandalal Pal - 2018 Supreme(Jhk) 220 However, third-party claims require separate suits or Order XXI Rule 97 applications, not disruption of final decrees. Aitha Dubba Rajam @ Raju VS Aitha Pochaiah - 2007 Supreme(AP) 30
In execution, exclusions for third parties must follow procedure: Third party claims cannot be considered in final decree proceedings... only remedy available to third party is to file appeal. Aitha Dubba Rajam @ Raju VS Aitha Pochaiah - 2007 Supreme(AP) 30
Reports from survey commissioners, as in Ext.10 & 11, delineate shares precisely (e.g., specific gandas, karas in plots), proving fragmented allotments post-preliminary decree. Malati Deb & Ors. VS Hasina Khatun & Ors. - 2012 Supreme(Gau) 70
Other precedents highlight practical applications:- Clear Descriptions Trump Boundaries: Survey numbers in partition deeds prevail over vague boundaries. This Court is of the view that... four boundaries cannot take precedence over the Survey Number. Governor S/o Mayavan VS Arumugam - 2024 Supreme(Mad) 1752- Amendments in Pleadings: In partition suits, amendments challenging gift deeds are allowed if they address core controversies without altering suit nature. Miss Susmita Roy, daughter of Late Sitish Chandra Roy VS Subir Kumar Roy, son of Late Sitish Chandra Roy - 2024 Supreme(Jhk) 410- Impleadment and Injunctions: Parties can seek commissioner appointments during final stages to resolve disputes, preventing multiplicity. Narayan Chandra Datta @ Narayan Datta VS Aruna Dutta - 2023 Supreme(Cal) 767- Partition Deeds as Separate Property: Allotted portions become separate, shifting proof burdens. Referenced in (2018) 7 SCC 646. (From context in S. Ashokan VS S. Elangovan - 2023 Supreme(Mad) 2666)
These cases underscore that fragmented, survey-contingent decrees are standard, supported by procedural safeguards.
While permissible, decrees must reference some identification basis. Purely vague orders may need supplemental proceedings. Exceptions include:- No implicit demarcation authorization.- Unresolved third-party rights without proper challenges.
Recommendations:- Courts: Specify if surveys are provisional and direct authorities explicitly.- Parties: Ensure decrees outline shares, areas, or tentative numbers for smooth execution.- Execution: Involve Collectors/surveyors early for mutation and demarcation.
In summary, partition suits can yield decrees for fragmented portions with contingent survey numbers, finalized via surveys under CPC provisions. This approach balances efficiency and accuracy, as affirmed in precedents like Prabhakar Gones Prabhu Navelkar (Dead) Through Lrs VS Saradchandra Suria Prabhu Navelkar (Dead) Through Lrs. - 2019 0 Supreme(SC) 907 and Concord Co-operative Housing Society VS Amedmal Bhatewada (deceased) Chandrakala Shantilal Lunawat - 2023 0 Supreme(Bom) 285.
Key Takeaways:- Preliminary decrees enable flexible, fragmented partitions.- Contingent surveys are executable with commissioner/Collector aid.- Final decrees incorporate survey reports for metes-and-bounds division.- Always document directions clearly to avoid execution disputes.
For co-owners facing partition woes, these principles offer a roadmap—but professional guidance is essential. Stay informed, and protect your property rights proactively.
#PartitionSuit, #PropertyLaw, #SurveyDemarcation
of possession of any land or portion of a land if he has got an entitlement to the land or portion of it consequent to a Partition decree. ... Section 52 of the Partition Law sets out the procedure for a party to a partition action to obtain possession of the land or any portion of the land after the final decree is entered in a partition action. ... Further, whether the instrument that alienates the property specifically refers to....
me to survey only this portion as he has filed action for this portion only as the owners of the other portion are not made. ... On 3rd August, 1953, a preliminary decree was entered declaring the plaintiff and a number of defendants entitled to various shares in a land of the extent OA. lR. 39P. depicted in Plan No. 2493 of 29th May, 1948. The decree further ordered that the land be partitioned. ... This might as well be done in a new suit. ......
It is well settled that the suit for partition does not come to an end with the passing of the preliminary decree but that it continues upto the stage the final decree is prepared. It is also well established that in such suits more than one preliminary decree can be passed. ... were not the matters in dispute in the suit filed by the plaintiff this Court is of the view that as the suit for partition does not come to an end with the passing of the pr....
In that final decree proceeding, a civil court Amin commissioner was appointed for division of the suit properties in accordance with the preliminary decree passed in the suit. ... Here, in this matter at hand, when as per the impugned order dated 07.01.2019, the learned Senior Civil Judge, Balasore has accepted to the report, partition map and allotment sheets etc. dated 14.11.2017 prepared by the survey knowing Amin commissioner in the final decree of the ....
In that final decree proceeding, a civil court Amin commissioner was appointed for division of the suit properties in accordance with the preliminary decree passed in the suit. ... Here, in this matter at hand, when as per the impugned order dated 07.01.2019, the learned Senior Civil Judge, Balasore has accepted to the report, partition map and allotment sheets etc. dated 14.11.2017 prepared by the survey knowing Amin commissioner in the final decree of the ....
The partition has not been done plot-wise causing injustice to the appellant. A proper identification of the land is possible with reference to the appropriate survey plot number. 42. ... The partition suit is decided at two stages i.e. at first stage, preliminary decree is passed and at second stage, a final decree is passed. Passing of the preliminary decree does not decide the suit finally. Preparation of final decree#H....
The partition has not been done plot-wise causing injustice to the appellant. A proper identification of the land is possible with reference to the appropriate survey plot number. 42. ... Passing of the preliminary decree does not decide the suit finally. Preparation of final decree is continuation of the same suit. ... After partition, all the parties sold certain lands but the purchasers have not been made parties to the suit. The....
] that it is open to any one whether a stranger or a party to the suit to impeach the validity of a decree passed by a court which is not competent to try the suit. ... of section 4 of the Partition Ordinance. ... ]:- "If on a survey I find certain conventional figures, such as a circle filled with blue, or a number of dark lines or parallel lines red or blue, and if I find on the margin that the surveyor states that he means thereby to represent a well or a marsh or a rock or a road ....
The plaintiffs in a suit for partition are the appellants herein challenging the disallowed portion. 2. ... Challenging the said judgement and decree, the plaintiff alone has preferred the first appeal and therefore, the partition decree granting partition with regard to some of the items and dismissal of the counter claim have attained finality. ... The plaintiffs had further admitted that the mother is still alive and she is residing in a portion o....
This Court is of the view that in the instant case, four boundaries cannot take precedence over the Survey Number as the Survey Number has been explicitly mentioned in the Partition Deed and there is nothing contrary to it. 19.6. ... Accordingly, allowed the Appeal Suit in its entirety vide judgment and decree dated August 22, 2008. 8. Feeling aggrieved with the judgment and decree passed by the First Appellate Court, the second defendant preferred t....
SUJIT NARAYAN PRASAD, J. Prayer: 1. The instant petition has been filed under Article 227 of the Constitution of India assailing order dated 19.12.2022 passed by learned Civil Judge (Sr. Division)-IV, Jamshedpur in Original (P) Suit No. 72 of 2019 whereby and whereunder the petition dated 19.11.2022 filed on behalf of respondent-plaintiff under Order VI Rule 17, seeking therein the amendment to make addition in the prayer for challenging the gift deed dated 16.01.2008 by which the land which is the subject matter of partition suit has been disclosed to be gifted by the father of the defe....
The suit was dismissed against which First Appeal No.149 of 1984(R) was preferred by the plaintiffs. 4. Title (Partition) Suit No.102 of 1980 was instituted claiming a preliminary decree of partition to the extent of half share in the schedule 'A' and schedule 'B' properties and for appointment of a survey knowing Pleader Commissioner for preparation of final decree. During pendency of the appeal the appellants filed an application for injunction on the allegation that the defendants were raising construction over schedule 'B' property.
Ext.9 - preliminary decree of Ts.13/ 1962 (Partition Suit). Ext. 10 & 11 - Survey Commissioner's Report with map in connection with preliminary /final decree of the partition suit. According to that decree south eastern part of plot No.24 of the Commissioner's map measuring 6(six) ganda 3 (three) kara 9(nine) dhur had fallen in the share of second party defendant and the western and northern part of the plot measuring 14(fourteen) ganda 1(one) Kara 1(one) kranti and 13 (thirteen) dhurs had fallen in the share of the plaintiff. The Plaintiff instituted Partition Suit No. 63/....
When petitioner came to know about the suit, she appeared and filed application under Order 1, Rule 10 of the Code of Civil Procedure for adding her as defendant in the suit. Plaintiff/respondent Nos. 1 and 2 filed partition Title Suit No. 17 of 2001 seeking preliminary decree for partition of 1/6th share each in the suit property fully described in the schedule of the plaint and also for appointment of survey knowing Pleader Commissioner for survey out of their share and preparation of final decree. In the said suit, petitioner was not impleaded as defendant although, she ....
The rights of such persons cannot be adjudicated for the simple reason that the rights of their vendor are not subject matter of the suit and their rights cannot be worked out in a suit, who is not party to it. 4. None of the parties to the suit preferred any Appeal challenging the rights of the 4 sharers for such preliminary decree. Respondents 10 to 12 were the parties added in the final decree proceedings when they contended that they purchased certain portion of the lands covered by the suit survey numbers and they are entitled to be impleaded in the partition suit. Whe....
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