IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR.JUSTICE P.S. DINESH KUMAR WRIT PETITION No.41613/2014 (GM-CPC) BETWEEN:
1. MAHADEVASWAMY @ SOMANNA AGED ABOUT 57 YEARS 2. NANJUDASWAMY AGED 40 YEARS 3. JAYAKUMAR AGED 34 YEARS ALL ARE S/O LATE JAVANAIAH RESIDING AT HEJJIGE VILLAGE KEMPISIDDANAHUNDI POST CHIKKAIANACHATRA HOBLI NANAJANGUD TALUK-570 121 4. GOOLAPPASWAMY AGED 24 YEARS 5. SURESHA AGED 20 YEARS SL.NO.4 & 5 ARE S/O GOOLAPPA R/O.HADINARU VILLAGE CHIKKAIANACHATRA HOBLI NANJANGUD TALUK-570 121 6. GOOLAPPA S/O LATE GOOLAPPA JAVARAPPA AGED ABOUT 55 YEARS R/O.HADINARU VILLAGE CHIKKAIANACHATRA HOBLI NANJANGUD TALUK-570 121 …PETITIONERS (BY SHRI S.K.SHIVASHANKAR, ADVOCATE) AND:
1. SMT.MAHADEVAMMA @ CHANDRAMMA D/O LATE JAVANNAIAH AND W/O.T.P MAHADEVAPPA 34 YEARS, R/O.TUMMANERALE VILLAGE CHIKKAIAHNACHATRA HOBLI NANJANGUD TALUK-577 001 2. A.P.SIDDALINGASWAMY S/O LATE A P PUTTASWAMY AGED 54 YEARS D.NO.778/A, NRUPATHUNGA ROAD T.NARASIPURA TALUK MYSORE DISTRICT-577 001 ... RESPONDENTS (BY SHRI V.RANGARAMU, ADVOCATE FOR R1; R2-SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF LEARNED 2ND ADDL. CIVIL JUDGE (SR.DV) MYSORE, IN FDP 10/2006 (O.S.498/1999) AS PER ANNX-G DTD.20.8.2013 AND REJECT THE COMMISSIONER’S REPORT.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard Sri S.K.Shivashankar, learned Counsel for petitioners and Sri V.Rangaramu, learned Counsel for respondent.No.1.
2. The parties herein shall be referred to as per their ranking in the trial Court.
3. The respondents herein filed O.S.No.498/1999, for partition and separate possession and the same was decreed. Pursuant thereto, F.D.P.No.10/2006 was instituted by them.
4. The Court below appointed Tahsildar, Mysore, as the Court Commissioner to survey the land and to submit the report. The Tahsildar got the land surveyed and submitted report through the Taluka Surveyor. By the order impugned, the Court below has accepted the report of the Commissioner.
5. Learned Counsel for the petitioners placing reliance on a decision of this Court in Sanga Reddy vs. Smt.Basamma and Others reported in ILR 2004 KAR 3664 submitted that it is the Court which is required to effect partition and not the Court Commissioner. However, he fairly submitted that the Commissioner has only submitted a report and partition is yet to be effected by the Court below.
6. The position of law urged by the learned Counsel for the petitioners is not disputed by the learned Counsel for the respondents.
7. It is settled that the partition will have to be effected in terms of Section 54 read with Order 26 Rule 14 of CPC. In that view of the matter, a mere submission of report by the Tahsildar and its acceptance by the Court does complete the proceedings of effecting partition. Therefore, this writ petition is per se misconceived. The trial Court shall proceed further to effect partition strictly in accordance with Section 54 read with Order 26 Rule 14 of CPC. The writ petition is accordingly disposed of.
8. In view of disposal of the writ petition, I.A.Nos.1 and 2/2017 do not survive for consideration, and stand disposed of accordingly.
Petition disposed of. No costs.
Sd/- JUDGE Yn.