IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No. 10069/2019 (GM-CPC) BETWEEN :
1. K.C.Pilla Madappa S/o. Late. Chikkamadappa, Aged about 66 years.
2. Smt. Sowbaghyalakshmi W/o. K.C.Pillamadappa, Aged about 58 years.
3. Sri. Gajendra S/o. Sri. K.C. Pillamadappa, Aged about 37 years.
The Petitioners are R/at. No.50, Rajathadry Nilaya, Kalkere Village, Horamavu Post, K.R.Puram Hobli, Bengaluru East Taluk, Bengaluru-560 048. ... Petitioners (By Sri. Sanath Kumar, Advocate for Sri. Vigneshwara.U., Advocate) AND M.Shilpakala W/o. Dr. Ramegowda D/o. K.C.Pilla Madappa, Aged about 39 years, No.50, Sharada Complex, Opp. New Baldwin School, Ramamurthynagar, Bengaluru-560 043. …Respondent ( By Sri. G.Papi Reddy, Advocate) This Writ Petition is filed under Article 227 of the Constitution of India praying to interfere with the order dated 14.02.2019 passed on I.A. in F.D.P. No.141/2018 on the file of XXXV Additional City Civil and Sessions Judge, Bengaluru by setting aside the said order at Annexure-D.
This Writ Petition coming on for Preliminary Hearing, this day, the Court made the following:-
ORDER The present petitioners who are the respondents in FDP 141/2018 have filed the present writ petition against the order dated 14.02.2019 appointing Mr. Anil Kumar K.S., Surveyor, Office of the ADLR, Bengaluru East Taluk, K.R.Puram, Bengaluru, as the Court Commissioner in view of the memo filed by the petitioner-plaintiff and issuing Commissioner Warrant.
2. The respondent herein who is the plaintiff before the trial court filed O.S.No.1070/2016 for partition and separate possession. The trial court by judgment and decree dated 28.06.2018, decreed the suit holding that plaintiff is entitled to 1/3rd share, which was the subject matter of RFA No.1527/2018. This court by the order dated 14.09.2018 granted stay of drawing of final decree proceedings. On 29.09.2018, the respondent filed FDP No.141/2018. Thereafter, the present petitioners have appeared in FDP proceedings and filed an application under Section 54 r/w 151 CPC, to appoint a suitable person as Court Commissioner for effecting division of the properties specified in the schedule into three equal shares and allot 1/3rd share to the plaintiff. The trial court by an order 14.02.2019 appointed Mr. Anil Kumar K.S., Surveyor, Office of the ADLR, Bengaluru East Taluk, K.R.Puram as Court Commissioner for division of the properties. Hence, the present writ petition is filed.
3. I have heard the learned counsel for parties.
4. Sri Sanath Kumar, learned counsel for petitioners contended that the impugned order passed by the trial court appointing Surveyor, Office of the ADLR, Bengaluru East Taluk, K.R.Puram as Court Commissioner is erroneous, contrary to material on record. He would further contend that in view of amended provisions of Section 54 of Code of Civil Procedure, division has to be effected only by the court in accordance with law, if necessary, on the report of Revenue Officer not below the rank of Tahsildar or such other person as the court may appoint as Commissioner in that behalf. Therefore, appointing the Surveyor, Office of the ADLR, Bengaluru East Taluk, K.R.Puram as Court Commissioner is erroneous and cannot be sustained.
5. In support of his contention, the learned counsel has relied on the judgment of this court in the case of Smt. Obamma and Others vs. Sri. Boraiah and Others [ILR 2016 KAR 4692] wherein this court at Para 11 and 12 held as under:
11. In view of the amendment of Section 54 of Code of Civil Procedure by Act No.36 of 1998 with effect from 1.2.2001, in all cases to which the amended provision applies, the “partition shall be made only by the Court and not by the revenue officer or the Commissioner”. The court if necessary on the report of the revenue officer not below the rank of the Tahsildar to enable to it to effect partition, it can effect partition on such report and Court Commissioner cannot make a division. In the present case, admittedly, the division is made by the Court Commissioner and not by the Court. Therefore, the substantial question of law has to be answered in negative holding that the Final Decree Proceedings accepting the division made by the Court Commissioner is contrary to the amended provisions of Section 54 of the Code of Civil Procedure.
12. Admittedly, as could be seen from the impugned judgment and decree passed by the Lower Appellate Court, confirming the order passed by the Final Decree Proceedings, the division was effected by the Court Commissioner as stated in the Order of the Final Decree Proceedings that “ Court Commissioner partitioned the suit properties as per the preliminary decree”.
Therefore, he has sought to allow the writ petition.
6. Per contra, Sri. Papi Reddy, learned counsel for respondent sought to justify the impugned order.
7. Having heard the leaned counsel for the parties, it is undisputed fact that respondent-plaintiff filed suit for partition and separate possession which came to be decreed on 28.06.2018, declaring that plaintiff is entitled to 1/3rd share in the suit schedule properties, which was the subject matter of RFA No.1527/2018. This court by the order dated 14.09.2018 granted interim order of stay only insofar as drawing of final decree. In the meanwhile, in FDP proceedings, the respondent-plaintiff filed an application under Section 54 r/w 151 CPC, to appoint a suitable person as Court Commissioner for effecting division of the properties specified in the schedule into three equal shares and allot 1/3rd share therein to the plaintiff. The trial court by the impugned order 14.02.2019 appointed Mr. Anil Kumar K.S., Surveyor, Office of the ADLR, Bengaluru East Taluk, K.R.Puram as Court Commissioner for division of the properties.
8. A careful perusal of the provisions of Section 54 of the Code of Civil Procedure clearly depicts that where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share of such an estate shall be made by the Court in accordance with the law if any, for the time being in force relating to the partition or the separate possession of shares, and if necessary on the report of a revenue officer, not below the rank of Tahsildar or such other person as the court may appoint as Commissioner in that behalf.
9. In view of the above, the trial court ought to have appointed the Revenue Officer not below the rank of Tahsildar or such other person as the court may appoint as Commissioner in that behalf for division of the properties. Therefore, the impugned order passed by the trial court appointing the Surveyor, Office of the ADLR, Bengaluru East Taluk, K.R.Puram as Court Commissioner cannot be sustained.
10. For the reasons stated above, the writ petition is allowed. The impugned order dated 14.02.2019 appointing Mr. Anil Kumar K.S., Surveyor, Office of the ADLR, Bengaluru East Taluk, K.R.Puram as Court Commissioner is hereby quashed. The matter is remanded to the trial court with a direction to the learned trial judge to appoint the Court Commissioner not below the rank of Tahsildar as contemplated under Section 54 of the Code of Civil Procedure and proceed in accordance with law.
Np/-
Sd/- JUDGE