IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.1072 OF 2015 BETWEEN:
Sri. T.S.Prakash, S/o. Late T.D.Somasundaram, Aged about 68 years, R/at No.709, III Block, Rajajinagar, Bengaluru-560010.
(By Smt. Shwetha Anand, Advocate) AND:
1. Sri. Mukunda A., S/o. Late T.S.Ananda, Aged about 42 years, 2. Smt. Vanitha A., D/o. Late T.S.Ananda, Aged about 39 years, 3. Smt. Vanarajamma @ Honnamma, W/o. Late T.S.Ananda, Aged about 69 years, All are R/at No.163, Muneshwara Block, …Appellant Saraswathpuram Main Road, Bengaluru-560086. ... Respondents (By Sri. S.Ravishankar, Advocate and Sri. K.Murthy, Advocate for R1-R3) This RFA is filed under Section 96 read with Order 41 of CPC, against the order dated 16.09.2014 passed by the XXXVIII Additional City Civil Judge, Bengaluru City (CCH- 39) in F.D.P.No.109/2009.
This RFA coming on for orders this day, the Court made the following:
ORDER Heard the appellant’s counsel and the respondents’ counsel.
2. This appeal is taken up for final disposal after hearing the appellant’s counsel and the respondents’ counsel.
3. The appellant has challenged the order of the trial Court dated 16.09.2014 passed in FDP No.109/2019 on the file of XXXVIII Additional City Civil Judge, Bengaluru.
4. The respondents instituted a suit for partition in O.S.No.2010/1997 in respect of house property. It was decreed and the said judgment was challenged before this Court in R.F.A.No.544/2009. This Court confirmed the judgment of the trial Court. Thereafter the appellant herein preferred Special Leave Petition to the Supreme Court. As per submission made by the appellant’s counsel the said Special Leave Petition was also dismissed on 22.08.2014. Pursuant to the preliminary decree, final decree proceedings were initiated. The trial Court appointed the Assistant Executive Engineer, Bruhat Bengaluru Mahanagara Palike, as the Commissioner to give a report with regard to feasibility of effecting division of the house property. He submitted his report. When this report was under consideration by the trial Court, the respondents herein made an application under Section 2 of the Partition Act. The trial Court allowed the said application and ordered for sale of the house and aggrieved by this order the appellant is before this Court.
5. The appellant’s counsel submits that the house is feasible for partition. The Court cannot directly order for sale if the property can be partitioned. The Commissioner’s report has not yet been decided. Until the Court decides whether at all the property can be partitioned, it cannot entertain application under Section 2 of the Partition Act. If need arises the appellant is ready to purchase the shares of the respondents. The learned counsel submitted that the entire procedure followed by the trial Court affects the interest of appellant and therefore impugned order needs to be set aside.
6. Learned counsel for the respondents also concedes for allowing the appeal. But he requests that a direction be given to the trial Court for disposing of the final decree proceedings by fixing a time frame.
7. Once a Commissioner is appointed to give a report as to feasibility of effecting division of the property according to preliminary decree, the trial Court has to decide that aspect first. Only if it is found that the property cannot be divided, then the provisions of Partition Act can be applied and sale can be ordered. Without deciding the Commissioner’s report, if the trial Court proceeded to allow the application filed under Section 2 of the Partition Act, it has to be stated that it is an error committed by the trial Court. Therefore impugned order is not sustainable. Hence, appeal is allowed. Order dated 16.09.2014 is set aside.
8. The trial Court shall consider the report of the Commissioner and objections filed thereon and decide whether division of the suit property can be effected in accordance with allotment of shares in the preliminary decree. The trial Court expedite disposal of final decree proceedings within a period of six months.
Sd/- JUDGE KMV/-