Sarojamma vs Kalasamma

Anand Byrareddy, J.—Heard the learned counsel for the petitioners.

The complaint of the petitioners is that in effecting division of the suit property by metes and bounds in terms of the decree in a suit for partition, an Advocate Commissioner had been appointed who has carried out the division of shares without notice to the petitioners, according to the learned counsel for the petitioners, without indicating the basis on which such shares are allotted. It is not even stated as to who are the respective sharers.

While the learned counsel for the respondents on the other hand would vehemently oppose the same and would state that the division has been effected correctly and would seek time to file statement of objections. He would submit that the court had called for a report from the Tahsildar who in turn has taken the assistance of a Taluk Surveyor to measure and survey several items of the suit properties and there are some other properties in respect of which there may not have been such a survey report.

In any event, from a reading of Section 54 of the CPC as amended by the Karnataka Amendment which is reproduced hereunder for ready reference, the same reads as follows:

"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 the Revenue Officer, not below the rank of Tahsildar or such other person as the court may appoint as Commissioner in that behalf."

Therefore, the court below ought to have proceeded strictly in accordance with the terms of the above section.

No doubt the Commissioner appointed by the court being an Advocate Commissioner, there is no infirmity in the same, since the section does provide that such discretion is available to the Civil Court. However, insofar as the division of the house property, it is the grievance of the petitioners herein that there ought to have been a proper survey and measurement of the property and the division ought to be carried out professionally by an Engineer, may be with the assistance and aid of a surveyor. This at best is left to the court below to decide as to the manner in which it shall be carried out. Therefore, the Advocate Commissioner himself having made a division of the properties and if the particulars of such division and the basis of the same is not forthcoming, it is for the court below to re-examine and take steps in accordance with law to ensure that the Court proceeds in the light of Section 54 of the CPC. If on a re-examination of the steps taken by the court below if it is found that any procedure that has been followed is inconsistent with the procedure laid down u/s 54, those steps will have to be retraced and the court below shall proceed, in accordance with law.

With that observation, the petition stands disposed of.