Karnataka High Court
Shiddayya vs Puttayya S/O Chanabasayya Hirenmath @ ... on 7 August, 2012
Author: Ajit J Gunjal
Bench: Ajit J.Gunjal
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 7TH DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR.JUSTICE AJIT J.GUNJAL
WRIT PETITION No. 64515/2009 (GM-CPC)
BETWEEN:
SHIDDAYYA
S/O CHANABASAYYA HIREMATH,
@ MANTRODI,
AGE 64 YEARS, OCC:AGRICULTURE,
R/O MAKARAVALLI,
TQ. HANGAL, DIST HAVERI. ... PETITIONER
(BY SRI. VIJAYENDRA BHIMAKKANAVAR, ADV. FOR
SRI. F V PATIL, ADV.)
AND
1. PUTTAYYA
S/O CHANABASAYYA HIREMATH,
@ MANTRODI,
SINCE DECEASED BY HIS LRS.
1A. SHADAKSHRAYYA
S/O PUTTAYYA HIREMATH @ MANTRODI,
AGE 48 YEARS,
OCC: VILLAGE ACCOUNTANT,
R/O MAKARAVALLI, TQ: HANGAL,
1B. SMT. GANGAVVA
W/O SHIVAMURTAYYA DUGURMATH,
AGE: 40 YEARS,
OCC:HOUSEHOLD,
WP No.64515/2009
:2:
R/O MAKARAVALLI,
TQ:HANGAL.
1C. SMT. GOURAVVA
W/O KUMARAYYA DUGURMATH,
AGE: 34 YEARS,
OCC:HOUSEHOLD, R/O MAKARAVALLI,
TQ:HANGAL, NOW AT KAREKOPPA,
TQ:SIRSI, DIST KARWAR.
1D. SMT. CHANABASAVVA
W/O MALLAYYA HIREMATH,
AGE: 31 YEARS,
OCC:HOUSEHOLD,
R/O KAMANAHAL, NOW AT
MAKARAVALLI TQ:HANGAL.
1E. SMT. SHAKUNTALAVVA
W/O CHANNAVEERAYYA HIREMATH,
AGE: 32 YEARS,
OCC: UPPALLI,
R/O TQ: SORAB, DIST SHIMOGA.
2. SHADAKSHARAYYA
S/O PUTTAYYA HIREMATH,
@ MANTRODI, AGE 48 YEARS,
OCC:VILLGE ACCOUNTANT,
R/O MAKARAVALLI, TQ: HANGAL.
3. VEERAYYA CHANNABASAYYA
HIREMATH @ MANTRODI,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. MAKARAVALLI,
TQ: HANGAL. ... RESPONDENTS
(BY SRI. DINESH M.KULKARNI, ADV. FOR R3A-D,
R1A, B, D & E NOTICE SERVED,
R2-NOTICE SERVED.)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDE VIDE ANNEXURE--C DATED 3.10.2007 PASSED
WP No.64515/2009
:3:
BY THE COURT OF CIVIL JUDGE (SR.DN.) AND JMFC, HANGAL, IN
F.D.P.NO.8/2005.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
In a suit for partition, a preliminary decree is drawn up in the year 2002. Final decree proceedings are initiated in the year 2005. Even after lapse of 7 years, after initiation of final decree proceedings, we are still at the stage of sending the records to the concerned authorities for demarcation and making a division. Exercising its power u/s 54 of the Code of Civil Procedure, the final decree court has appointed a ADLR as Commissioner so as to demark the property. According to the petitioner, such a power is not vested with the ADLR inasmuch as he cannot make a division, demarcate the properties and allot the shares. Hence, the petitioner submits that the entire procedure adopted by ADLR is incorrect.
WP No.64515/2009:4:
2. I am not impressed. The Karnataka Amendment of Section 54 would read as under:
"54. Partition of estate or separation of share - 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."
3. A perusal of the said provision indicates that a division can be effected either by the court itself on the basis of a report of a Revenue Officer not below the rank of the Tahsildar or such other person as the Court may WP No.64515/2009 :5: appoint as Commissioner in that behalf. In that, the final decree court has thought it fit to appoint ADLR to divide the property and make a division which has been done. The report which is filed by the ADLR does not in any way run contrary to the wordings of Section 54. Having said so, I am of the view that the question of interference with the impugned order does not arise. Petition is rejected.
Sd/-
JUDGE Jm/-