Karnataka High Court
Shri K Janardhan W/O Ramdas Saralaya vs Shri Gopinath S/O Haridas Kidiyoor on 27 September, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
-1-
NC: 2024:KHC-D:14175
RSA No. 100659 of 2024
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO.100659 OF 2024 (FDP)
BETWEEN:
1. SHRI K. JANARDHAN
S/O. RAMDAS SARALAYA,
AGE: 63 YEARS,
OCC: HOTEL BUSINESS,
R/O. 'PANCHAMI' BUILDING,
TRAINING COLLEGE, K.C. PARK,
DHARWAD 580001.
TQ/DIST: DHARWAD.
2. SMT. JYOTI W/O. JANARDHAN SARALAYA,
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O. 'PANCHAMI' BUILDING,
TRAINING COLLEGE, K.C. PARK,
DHARWAD-580001.
MALLIKARJUN
TQ/DIST: DHARWAD.
RUDRAYYA ...APPELLANTS
KALMATH
(BY SRI A.S.PATIL, SABEEL AHAMED
Digitally signed
by MALLIKARJUN
AND S.K.HOSAMANI, ADVOCATES.)
RUDRAYYA
KALMATH
AND:
SHRI GOPINATH S/O. HARIDAS KIDIYOOR,
AGE: 69 YEARS, OCC: ADVOCATE,
R/O. 'SHRI HARI', 4TH MAIN,
SHAKTI NAGAR, DHARWAD-580004.
TQ/DIST: DHARWAD.
...RESPONDENT
(PARTY-IN-PERSON)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE
THE IMPUGNED JUDGMENT AND DECREE DATED 24.06.2024 PASSED
BY THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE,
-2-
NC: 2024:KHC-D:14175
RSA No. 100659 of 2024
DHARWAD, IN R.A.NO.55/2022 INSOFAR AS CONFIRMING THE
IMPUGNED ORDER DATED 23.09.2022 PASSED BY THE
III ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL
MAGISTRATE, DHARWAD, IN FDP NO.26/2010, BY ALLOWING THE
PRESENT APPEAL.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
ORAL JUDGMENT
Heard the arguments addressed by the learned counsels appearing for the respective parties and perused the material placed on record.
2. This regular second appeal is filed by defendants No.1 and 2 challenging the judgment and decree dated 24.06.2024, passed in R.A.No.55/2022, by the IV Additional District and Sessions Judge, Dharwad, and the order dated 23.09.2022, passed in FDP No.26/2010, by the III Additional Senior civil Judge and CJM, Dharwad.
3. For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the trial Court.
FACTS:
4. The plaintiff has filed a suit in O.S.No.120/2007 for partition, declaration and for permanent injunction -3- NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 claiming his 1/3rd share in the suit schedule properties. The trial Court decreed the suit declaring the plaintiff as owner of the super structure and is entitled for rent at the rate of Rs.5,000/- per month w.e.f. 24.10.2005 till possession is handed over and for separate possession of 1/3rd share in the suit property by metes and bounds and also partnership deed dated 24.10.2005 between the plaintiff, defendants No.1 and 2 is cancelled so far as plaintiff is concerned. Against this, defendants No.1 and 2/appellants preferred appeal before the First Appellate Court in RA.No.189/2010. The First Appellate Court has modified the decree that the plaintiff is entitled only for 1/3rd share in the land as well as super structure and for the purpose of settling the accounts, they shall work out before the arbitrator and other relief sought for by the plaintiff are rejected except dissolution of the partnership firm. Therefore the total effect of the order passed by the First Appellate Court is that the plaintiff is entitled for 1/3rd share in the land as well as super structure and dissolution of partnership firm ordered by the trial Court is confirmed. For working out accounts settlement, the parties can approach arbitrator. This order is challenged by -4- NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 defendants No.1 and 2 before this Court. Defendant Nos.1 and 2 have preferred RSA No.5646/2011 and the plaintiff has filed RSA Cross Objection No.52/2012 before this Court and this Court has modified the order passed by the First Appellate Court. For the purpose of deciding this lis, the following is the extract of the order passed by this Court.
".....once the property has been merged irrespective of the contribution, having regard to the above exercise, to retain the property of the partnership firm namely the land which was initially let out be the Corporation and thereafter option was given to the lessee which was enjoyed by the lessee and was sub let to the appellants for further carrying of the business, it is for the trial Court to pass the decree which need not be in the form of final decree identifying share to an extent of 23% to the respondent and remaining 77% to the appellants in respect of immovable property and another property available."
5. As per the order passed by this Court, in the above stated RSA and RSA Cross Objection, the plaintiff's share is determined at 23% and share of defendants No.1 and 2 together is determined at 77% and directed the trial Court to pass preliminary decree in this regard for the purpose of identifying the shares. This order was challenged before the Hon'ble Apex Court in SLP (C) Nos.34779-34780 -5- NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 of 2014 and the Hon'ble Supreme Court dismissed the SLP. Therefore the order passed by this Court is confirmed determining the plaintiff will get share to the extent of 23% and defendants No.1 and 2 will get share together at 77%.
6. Threafterwards, the trial Court has passed orders on I.A. filed by both the plaintiff and defendants in FDP No.26/2010, which is extracted as under:
"ORDER The application filed by the petitioner U/o. XX Rule 18 R/w Section 151 of CPC, is hereby allowed and the application filed by the respondents is hereby partly allowed.
It is hereby declared that the plaintiff is entitle for 23% share and respondents together are entitle for 77% share in the suit schedule property by metes and bounds.
Office is directed to draw preliminary
decree accordingly."
7. Thereafter the plaintiff has filed application under Order 20 Rule 12 and Rule 18 of CPC in the very same FDP proceedings in FDP.No.26/2010 and an order came to be passed by following the order passed in RSA that the plaintiff is entitled for 23% share and defendants No.1 and 2 together are entitled for 77% share in the suit schedule -6- NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 properties by metes and bounds. As against this order, the defendants No.1 and 2 have filed Writ petition No.101485/2022, which is dismissed. Against the order passed in W.P.No.101485/2022, the defendants No.1 and 2 have preferred special leave petition before the Hon'ble Apex Court and the same came to be dismissed and liberty is granted to file a review petition. Thereafter review petition No.100015/2023 is filed and that also came to be dismissed on 13.07.2023. In the Writ Petition No.101485/2022, initially the plaintiff has offered for purchasing the property for one lakh rupees per square feet and later it was withdrawn. Then the trial Court/FDP Court has passed order on 23.09.2022 declaring that the plaintiff is entitled to get his 23% share in the suit schedule properties to an extent of 965 sq.feet towards northern side and defendants are entitled to get their 77% share in the suit schedule property to the extent of 3,233 sq.feet towards southern side property and accordingly has drawn final decree.
8. Against this order passed in FDP No.26/2010, questioning the same, defendants No.1 and 2 have preferred appeal in R.A.No.55/2022 before the First Appellate Court -7- NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 and the First Appellate Court has dismissed the appeal. Therefore the order passed in FDP No.26/2010 that the plaintiff is entitled for share of 23% towards northern side and defendants No.1 and 2 together are entitled for 77% share towards southern side is confirmed. The defendants No.1 and 2 are before this Court challenging the order passed by the FDP Court and the First Appellate Court as above stated.
SUBMISSION OF COUNSEL FOR APPELLANTS/
DEFENDANT Nos.1 AND 2.
9. Learned Senior Counsel Sri M.B.Nargund,
appearing on behalf of appellants submitted also filed written arguments that the FDP Court has proceeded with the case as if the suit is for partition by dividing the property by metes and bounds but that is not the order passed by this Court in RSA No.5646/2011. Therefore, submitted contrary to the spirit of the order passed by this Court in the said RSA, the FDP Court and the First Appellate Court have proceeded instead of considering the suit as it is filed under the Partnership Act. Further submitted that both the trial Court and the First Appellate Court having proceeded so, as -8- NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 if the suit is filed for partition, have gone in a wrong direction by entertaining the application filed by the plaintiff under Order 20 Rule 12 and Rule 18 of CPC, but the application ought to have been filed invoking the provision under Order 20 Rule 15 of CPC. Therefore both the FDP Court and the First Appellate Court have completely changed the proceedings, which is not permissible.
10. The learned Senior Counsel further submitted by highlighting the difference between the proceedings invoking Order 20 Rule 12 and Rule 18 of CPC and Order 20 Rule 15 of CPC has argued with reference to Form No.21 in CPC what is to be drawn is preliminary decree in case of suit for partition and suit for partnership. Therefore, the FDP Court has not drawn the preliminary decree as per Order 20 Rule 15 of CPC as in form No.21 Appendix-D to the CPC. Therefore, have gone in contravention with the order passed by this Court in RSA No.5646/2011. Therefore the learned Senior Counsel argued that the preliminary decree to be passed as if in the case of suit for partnership and the case of suit for accounts by invoking the Partnership Act and suit for partition are totally different and consequential -9- NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 preliminary decree drawn is contrary to the order passed by this Court in RSA No.5646/2011. Therefore, consequently drawing up of decree is also not correct as basically preliminary decree is not for invoking Order 20 rule 15 of CPC. These aspects are not considered by the First Appellate Court. Hence resulting into passing erroneous order by deviating themselves while applying the correct provisions of law in this regard.
11. Further, learned Senior Counsel Sri M.B.Nargund submitted that the FDP Court and the First Appellate Court have gone contrary to the Court commissioner's report and annexed map. The Court commissioner ought to have been examined by summoning him, but the FDP Court has not examined, and contrary to the Court commissioner's report and map prepared therein, the FDP Court has passed order which is wrongly confirmed by the First Appellate Court. Therefore submitted, the FDP Court and the First Appellate Court have not applied their mind correctly and have passed inaccurate orders. What the Court commissioner has submitted repot, contrary to that in a reversed manner the FDP Court has demarcated the property on assumptions and
- 10 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 presumptions. What the recourse ought to have been adopted is that to appoint Court commissioner again for effecting demarcation and without doing so, both the trial Court and the First Appellate Court have committed error in passing the order. Therefore, prays for interference with the order passed by both the FDP Court and the First Appellate Court.
12. Further, learned Senior Counsel submitted that the order passed in the Writ Petition No.101485/2022, in which the subject matter was order passed on the interlocutory application and as such, the said order is only in the nature of order passed on the application by FDP Court and at the interlocutory application stage dismissing the writ petition itself will not bar the defendants to take up all the legal grounds as available under law in the regular appeal by invoking the provisions of section 105(1) of CPC. Therefore submitted, an order passed in W.P.No.101485/2022 cannot be taken as a final adjudication of the rights of the parties.
13. Further the learned Senior Counsel submitted that the FDP Court and in the writ petition the matter has been dealt with as if the suit is filed for partition and
- 11 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 separate possession, but the suit is not for partition and separate possession by metes and bounds, but is for rendition of accounts as per partnership between the parties. Therefore in the sense the suit of the plaintiff is filed for dissolution of partnership firm. Therefore, the final decree proceedings initiated under Order 20 Rue 12 and Rule 18 of CPC is not maintainable. The FDP Court ought to have proceeded as per Order 20 Rule 15 of CPC, which stipulates about the decree in a suit for dissolution of partnership. Therefore, the preliminary decree passed is contrary to the order passed by this Court in RSA No.5646/2011. Therefore further submitted that, had the FDP Court proceeded as per the order 20 Rule 15 of CPC, understanding the suit is filed for dissolution of partnership, then the preliminary decree would have been different and would have been as per order passed in RSA No.5646/2011. But the FDP Court has gone with the proceedings by invoking Order 20 Rule 12 and Rule 18 of CPC which is not correct and contrary to the order passed by this Court in RSA No.5646/2011. Therefore, it is argued that if the FDP Court would have proceeded as per Order 20 Rule 15 of CPC, then as per section 48 of the
- 12 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 Indian Partnership Act, 1932, the mode of settlement of accounts between the partners would be as per the relief claimed in the suit for dissolution of partnership. Since the decree passed in O.S.No.120/2007 is dissolution of partnership firm, so far as plaintiff is concerned, then the accounts ought to have been settled as per section 48 of the Indian Partnership Act, 1932. Therefore, in this regard a specific plea was taken before the FDP Court and also before the First Appellate Court, but what has been considered is resulting into delivering erroneous order. Hence prays to interfere with the order passed by both the FDP Court and the First Appellate Court.
14. Further, the learned Senior Counsel argued that the decree passed in O.S.No.120/2007 and R.A.No.189/2010 merges with the decree passed in RSA No.5646/2011. Therefore, the preliminary decree ought to have been drawn accordingly and for this understanding the suit is filed for dissolution of partnership, then as per section 48 of the Indian Partnership Act 1932, the decree ought to have been passed. But without doing so, both the FDP Court and the First Appellate Court have passed orders as if the suit is for
- 13 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 partition and separate possession by metes and bounds, which is not in accordance with the order passed in RSA No.5646/2011. Therefore argued that there are defects in this regard committed by the FDP Court and the First Appellate Court.
15. It is further submitted that in RSA No.5646/2011 this Court has not mentioned of partitioning the property by metes and bounds, but final decree passed in FDP Court is contrary to the judgment in RSA No.5646/2011 and this error is perpetuated in further proceedings resulting into impugned order passed is wholly erroneous. Hence, prays for interference with the order passed by both the FDP Court and the First Appellate Court.
16. Further submitted that, both the FDP Court and the First Appellate Court have totally misread the Court commissioner's report and map and even the FDP Court has not followed what the Court commissioner submitted report and contrary to the Court commissioner's report and map, final decree is drawn. Hence prays for interference in this regard. Further the learned Senior Counsel argued that the
- 14 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 FDP Court has substituted its view contrary to the Court commissioner's report and map as the Court itself has not seen it properly. Therefore the substitution made by the FDP Court is not correct. If the FDP Court is of opinion that the Court commissioner's report is not correct, or there is any ambiguity or needed any clarification, then the Court commissioner ought to have been summoned and examined or take recourse for appointing another Court commissioner to obtain correct map and report, but without doing so, substitution of its view by the FDP Court is not correct.
17. Further submitted that division of the suit property is not practically possible as it causes substantial damage to the property. Therefore, by invoking section 3 of the Partition Act, 1893, solution would be worked out in demarcating in monetary terms. Therefore, submitted, on the guise of making partition of the property, the property cannot be damaged or deteriorated and that is contrary to the principles of law laid down by the Hon'ble Apex Court and this Court. Therefore, submitted, the FDP Court ought to have taken recourse as per section 3 of the Partition Act, 1893 and make value of the property and accordingly share
- 15 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 of value be given to the respective parties. Hence, on all these grounds raised in the memorandum of appeal and argued in detail by highlighting the above submissions, prays to frame substantial questions of law and consider the appeal on merits and allow the appeal by setting aside the order passed by both the FDP Court an the First Appellate Court. SUBMISSION OF COUNSEL FOR RESPONDENT/ PLAINTIFF
18. On the other hand, the respondent party-in- person submitted by oral submission and filed written argument that this Court in RSA No.5646/2011 though reduced the share of plaintiff from 1/3rd to 23%, but the decree of the first appellate Court regarding dissolution of partnership firm is kept intact.
19. Further submitted that plaintiff has filed an application under Order XX Rule 18 of CPC in FDP, for demarcation of properties by metes and bounds to the extent of 23% to the plaintiff as per the order passed in RSA No.5646/2011 and in this regard the amendment filed by the plaintiff is allowed.
- 16 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024
20. Further submitted that, respondent herein in the year 2017 though has filed an interlocutory application stating that the final decree proceedings initiated under Order XX Rule 18 of CPC is not maintainable as it is filed for partition, but nature of suit is for dissolution of partnership firm, but the said application is dismissed upholding the contention of the plaintiff initiating final decree proceedings as per Order XX Rule 18 of CPC. Against this order, defendants have filed Writ Petition No.145283/2020, but this petition is also dismissed. Therefore, final decree proceedings initiated under Order XX Rule 18 of CPC is proved to be maintainable.
21. Further submitted that as the report and map prepared by Court Commissioner is not appropriate and therefore with reasoned order, the plaintiff is given 23% of share i.e., 965 sq.ft. towards northern side. The reasons assigned by the FDP Court and the first appellate Court are in elaborate for having valid reasons why the plaintiff is given share in the northern side. Therefore, both the Courts below have correctly applied their mind on the map and
- 17 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 report made by the Court Commission and accordingly, passed order which need not be interfered with.
22. Further submitted that land originally belongs to father of the plaintiff and the plaintiff and the defendants later on formed a partnership business and now, the plaintiff is satisfied with 23% share as ordered by this Court in RSA No.5646/2011 and for this also, defendants are obstructing in one way or the other way. Therefore, when in RSA rights of the parties are determined finally, then, the plaintiff is entitled to get share of 23% of scheduled property by metes and bounds as per the order passed in RSA No.5646/2011 and accordingly, that is correctly held by both the Courts below and hence, prays to dismiss the appeal as having no merits in the appeal, much less, no substantial question of law is involved. Therefore, prays to dismiss the appeal. ANALYSIS: Whether any substantial question of law involved?
23. Essentially the suit filed is for partition between the partners. The suit is not between coparcener in the family, but it is partners seeking dissolution of the
- 18 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 partnership firm and accordingly, the trial Court in the suit O.S.No.120/2007 decreed the suit by giving 1/3rd share to the plaintiff, declaring that the superstructure belongs to the plaintiff and also the rent of the premises. The said decree is modified in R.A.No.189/2010 holding that the plaintiff is entitled only for 1/3rd share in the land and superstructure and for the purpose of settling the accounts they shall approach the arbitrator and confirmed dissolution of the partnership firm.
24. The defendants have challenged the said judgment and decree passed in O.S.No.120/2007 and R.A.No.189/2010 before this Court in RSA No.5646/2011, along with RSA Crob No.52/2012. The order passed by this Court in RSA No.5646/2011 is extracted hereinunder for convenience:
After having heard the learned counsel for the respective parties in this appeal and the cross objection filed against the judgment of the lower appellate Court, it has been suggested having regard to the factual background and circumstance of the case, that these appellants/defendants are entitled for 77% and the respondent/plaintiff is entitled for 23% of the landed property available to the partnership firm for
- 19 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 the purpose of identifying the 23% of the property out of the entire property which is acquired by the partnership firm in furtherance of the option given by the Municipal Corporation (HDMC)
2. The property was purchased with the contribution of both the parties namely the appellants and the respondent herein though on different shares but ultimately, even the amount raised by the partnership to purchase and clear of the loan is also subject matter to be taken into consideration. Despite the fact that the respondent had got 10% but having regard to the good will which was earned by the respondent in the course of time and also initially he had a preemptory right to purchase the property from the Corporation for which these appellants No.1 and 2 have joined and also the property became the subject matter of the partnership firm. Once the property has been merged irrespective of the contribution, having regard to the above exercise, to retain the property of the partnership firm namely the land which was initially let out by the Corporation and thereafter option was given to the lessee which was enjoyed by the lessee and was sub let to the appellants for further carrying of the business, it is for the trial Court to pass the decree which need not be in the form of final decree identifying share to an extent of 23% to the respondent and remaining 77% to the appellants in respect of immovable property and another property available.
Accordingly, both the appeal and cross objection are disposed of.
- 20 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024
25. Therefore, this Court in RSA No.5646/2011 has directed the trial Court to pass preliminary decree identifying the share to the extent of 23% to the plaintiff and 77% to defendant Nos.1 and 2. In the suit, there are immovable properties and other properties are available. This order attained finality in view of SLP (C) Nos.34779-34780 of 2014 is dismissed by the Hon'ble Supreme Court. Therefore, the share of the plaintiff and the defendants are determined finally that plaintiff is entitled to get 23% of share in the immovable properties and if any other properties, if available, then, the FDP Court has passed preliminary decree upon the application under Order XX Rule 18 CPC read with Section 147 of CPC, declaring that the plaintiff is entitled to get 23% share and defendant Nos.1 and 2 together are entitled for 77% share in the suit schedule properties by metes and bounds.
26. Learned senior counsel for the appellants/defendants Nos.1 and 2 raised objection to the preliminary decree for using words by metes and bounds as it is not found in RSA No.5646/2011. It is pertinent to mention here that the suit is filed for partition between
- 21 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 partners for dissolution of partnership firm. The decree of dissolution of partnership firm is not disturbed even by this Court in RSA No.5646/2011. This Court in RSA No.5646/2011 has only determined the share of the plaintiff and the defendant Nos.1 and 2 at 23% and 77% respectively. Though, the suit is for partition but the partnership firm is dissolved by decree passed by the trial Court, otherwise, the partition cannot be effected. Therefore, in this meaning, the preliminary decree is passed by the FDP Court by using the words metes and bounds which is completely in consonance with the order passed in RSA No.5646/2011. In RSA No.5646/2011 the share is determined in respect of immovable properties and another property is available. The effect of order passed in RSA No.5646/2011 is not making of extent of share between the parties regarding accounts in the partnership firm, but the shares allotted in RSA is in respect of immovable properties. Therefore, when the share is determined in the RSA in respect of the immovable properties, then the partition can be effected only by metes and bounds that it is correctly held
- 22 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 by the FDP Court in its preliminary decree above discussed. Therefore, this cannot be found fault with.
27. Further in the FDP Court, the plaintiff has invoked the provisions under Order XX Rule 18 of CPC for effecting partition as per the order passed in RSA No.5646/2011, as this partition of share is in respect of immovable properties. Though partition is between partners in the partnership firm, but the effect of order is for partition of immovable properties for claiming separate share by metes and bounds. Therefore, there is no merit found in the submission canvassed by learned senior counsel that the final decree proceedings ought to have been prosecuted as per Order XX Rule 15 of CPC. Order XX Rule 15 CPC deals with decreeing the suit for dissolution of partnership firm. But essentially in the present case the suit is for partition amongst the partners and in the partnership firm. The dissolution of partnership firm is consequent effect of relief claimed. Unless partnership firm is dissolved, partition cannot be effected. Therefore, essentially when the suit is filed for partition amongst the partners, dissolution of partnership firm is a mere consequent act/effect. Therefore, this Court in RSA
- 23 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 No.5646/2011 has ordered by determining share of immovable property of the partnership firm, then, the application filed for effecting partition in FDP by invoking Order XX Rule 18 CPC is correct. The order passed by this Court in RSA No.5646/2011 is not merely for settling accounts in partnership firm so as to make applicable to make use of Form-21 as contended by learned senior counsel, but the order passed by this Court in RSA No.5646/2011 is determining the share at 23/77 ratio in respect of immovable properties and another property available. Therefore, when the order is for partition, determining share to the extent as above stated for immovable property, then, invoking provision under Order XX Rule 18 of CPC is correct and FDP Court has correctly exercised power as per Order XX Rule 18 of CPC. Therefore, the preliminary decree passed in pursuance to the order passed in RSA No.5646/2011 is in consonance with the effect of partition by FDP Court by passing preliminary decree on 03.03.2022. Therefore, in this regard, there is no merit found in the submission made by the learned counsel for the appellants/defendant Nos.1 and 2.
- 24 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024
28. Furthermore, defendant Nos.1 and 2 have challenged the said order by filing Writ Petition No.101485/2022 before this Court questioning the correctness and propriety invoking Order XX Rule 18 CPC but this Court has upheld the contention of the plaintiff that invoking Order XX Rule 18 CPC is correct and accordingly dismissed the said writ petition. Therefore, FDP proceedings initiated under Order XX Rule 18 CPC is upheld by this Court in Writ Petition No.145283/2020.
29. Therefore, in this regard, when the order of this Court in RSA No.5646/2011 is for determining the share and while determining the share as above discussed is with respect to immovable property, therefore, this Court in RSA No.5646/2011 has effected partition in respect of immovable property. Accordingly, invoking Order XX Rule 18 CPC is perfectly justifiable one. Therefore, there is no need to invoke Order XX Rule 15 of CPC. In this regard, the judgment relied upon by learned senior counsel as above discussed are not applicable in the present case as having found difference in the factual matrix in the above stated cases and in the present case.
- 25 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024
30. As above discussed, the suit is for partition amongst the partners in the partnership firm, but no coparceners in the joint family and partition is in respect of immovable property and that is what is the order passed in RSA No.5646/2011. If it is only for settling the accounts and only for dissolution of partnership firm of rendition of accounts, settling the accounts or for monetary reliefs in the partnership firm, then, Order XX Rule 15 CPC read with Section 48 of Indian Partnership Act, 1932 could have been invoked. But here the suit is not only for rendition and settling accounts but main relief is partition in respect of immovable property that is what this Court in RSA No.5646/2011 has determined the share in respect of immovable property but not for accounts. Therefore, invoking provision under Order XX Rule 18 CPC is perfectly justifiable one and correctly exercised by the FDP Court.
31. Further, in the FDP proceedings, the FDP Court has appointed Court Commissioner and the Court Commissioner has submitted two maps as Map 1 and Map 2 along with the report which are annexed as per document Nos.7 and 8 in the written submission. As per this report, the
- 26 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 Court Commissioner has shown towards southern side of the suit property. Another Property of defendant Nos.1 and 2 is situated which is bearing CTS.No.387/A1/A. The Court Commissioner has demarcated the property by giving 23% i.e., 965 Sq.ft. towards southern side of the suit property to the plaintiff. The Court Commissioner has demarcated the property and recommended for allotment to the plaintiff, which is in between the property of defendant Nos.1 and 2 i.e., CTS No.387/A1/A and proposed 77% to be allotted to defendant Nos.1 and 2. This Court Commissioner's report is considered by the FDP Court as well as by the Appellate Court and modified allotment of share by granting 23% of share in the property to the extent of 965 sq.ft. towards northern side and defendants are demarcated to get 77% share to the extent of 3233 sq.ft. towards southern side of the suit property. It is the argument that the FDP Court and the Appellate Court contrary to the Court Commissioner's report and maps prepared, without application of mind has reversed portion of share to be allotted to the respective parties. This Court does not find any force in the said submission, for the reason that towards western side there is
- 27 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 road, if plaintiff is given 965 sq.ft. towards southern side, then, that would be in between the properties of defendant Nos.1 and 2 because defendants are already owners of another property bearing CTS No.387/A1/A towards southern side, which is not feasible and in such an event, defendant Nos.1 and 2 also will not get entire extent of land of 3233 sq.ft., along with the extent in CTS No.387/A1/A. Therefore, the trial Court has modified the Court Commissioner's report and allotted 23% of share to the extent of 965 sq.ft. towards northern side and defendant Nos.1 and 2 are given their extent of 77% towards southern side. In this arrangement made by the FDP Court, both the plaintiff and defendant Nos.1 and 2 will get entrance towards western side. Further, this arrangement will enable defendant Nos.1 and 2 to get 77% in conjoint to the extent along with their property CTS No.387/A1/A and make it as larger extent to be utilised by defendant Nos.1 and 2. Therefore, the reasoning assigned by the FDP Court and the Appellate Court are perfectly well reasoned and accordingly modified the Court Commissioner's observations. The FDP Court has every power to modify the Court Commissioner's report in order to mould the relief as
- 28 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 per Order VII Rule 7 of CPC and accordingly it is correctly exercised. There is no dispute with regard to extent of share in the property but which side the said extent is to be given is the question before the Court. The Court Commissioner's report is to the effect that if the plaintiff is given extent of 965 sq.ft. towards southern side, then, it would be adjacent to the property bearing CTS No.387/A1/A and in between property CTS No.387/A1/A and 77% to the extent which is not a correct approach. Therefore, considering all practical scenario and feasibility, the plaintiff is given the extent 23% towards northern side. Under these circumstances, the plaintiff will get an access of entrance towards western side road also. At the same time, if defendant Nos.1 and 2 are given their 77% share to the extent of 3233 sq.ft., towards southern side then it will make defendant Nos.1 and 2 to get enlarged combined with the property CTS No.387/A1/A as it would be adjacent to each other, then also defendant Nos.1 and 2 will get access of entrance towards western side of the road. Therefore, both the FDP Court and the Appellate Court have correctly applied their mind and accordingly passed final decree by allotting plaintiff 23% share towards northern
- 29 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 side and 77% share to the defendant Nos.1 and 2 towards southern side. Therefore, in this regard, both the Courts below have correctly exercised their discretion judiciously considering all particulars with feasibility involved in the case and found that there is no need to summon Court Commissioner for examination purpose. As identity of the property, extent of share determined by this Court and boundaries of the suit are very much identifiable, then, what remains is only on partition in respect of plaintiff and defendants are to be given. For this, summoning and examination of Court Commissioner is not necessary as it would be futile exercise and mere wastage of time in getting fruitfulness of the decree passed by this Court in RSA.No.5646/2011. Therefore, both the Courts below in this regard have correctly passed final decree in respect of properties to be allotted according to the extent determined which is correctly done and modified the Court Commissioner report by both the Courts which needs no interference.
32. Therefore, in all respects, both the Courts below have exercised their power correctly, legally and judiciously by following procedure of law and therefore, the orders
- 30 -
NC: 2024:KHC-D:14175 RSA No. 100659 of 2024 passed by the FDP Court and the Appellate Court are liable to be confirmed, as appeal having been found no merits and also no substantial question of law involved to admit the appeal. Therefore, upon considering the entire case on record, along with the submissions made respectively by both the parties, the orders are found to be perfectly justifiable, legal and correct one. Hence, appeal is liable to be dismissed at the admission stage itself. Accordingly, dismissed. No costs.
Sd/-
(HANCHATE SANJEEVKUMAR) JUDGE MRK-para 1 to 17.
AC-para 18 to 26 KGK-para 27 till end CT:GSM List No.: 1 Sl No.: 34