Smt. A.S. Savithri vs Sri. C. Yathish and Others

Anand Byrareddy, J.—These appeals are heard and disposed of by this common judgment. The appeal in RFA 1414/2012 is filed by the fifth respondent in Final Decree Proceedings, in FDP 43/2007 arising out of a suit for partition and separate possession, in O.S. No. 4916/98 on the file of the Court of the XXII Additional City Civil Judge, Bangalore. The suit having been decreed, the plaintiff had filed the petition under Order XX Rule 18 read with Section 151 of the Code of Civil Procedure, 1908 (Hereinafter referred to as the ''CPC'' for brevity), seeking partition by metes and bounds and delivery of possession of his 4/9th Share in Suit Schedule Items 1 to 4 and 6 and 1/3rd Share in Items 5 and 7. Items 1, 2 and 7 were vacant sites, whereas items 3 to 6 were buildings.

On issuance of notice of the proceedings, respondents 2 and 3 had entered appearance and reported the death of respondent no. 1 and claimed to represent him as his legal representatives. They did not choose to file any objections to the petition.

Respondents 4, 5 and 6 were impleaded in the said proceedings. Respondent no. 4 had filed objections to the effect that respondent no. 2 had purchased item no. 3 of the suit schedule properties at an auction amongst the members of the Bangalore Co-operative Bank Ltd., Bangalore, under a registered sale deed dated 29.1.1997. That it was the self acquired property of the said respondent no. 2 and that respondent no. 4 had purchased the same from respondent no. 2, without an inkling that the same was the subject matter of a partition suit and was hence seeking that the said property may not be made subject to any division but the same could allotted to his vendor the respondent no. 2, in entirety while working out his share, by equitably adjusting the same in respect of other properties.

The fifth respondent contended that item no. 1 was purchased by her under a registered sale deed dated 29.4.2002 from respondent no. 2, after verifying that the same unencumbered and that the said respondent was the allottee and that there was a sale deed executed in his favour by the BDA and he had subsequently mortgaged the same with Central Cooperative Bank Ltd., and in order to redeem the mortgage had received a sum of Rs. 7 lakh from the said respondent no. 5. He had thereafter executed a sale deed dated 29.2.2002. Therefore, it was contended that the petition was not maintainable against her.

The court had appointed a court commissioner to address the manner in which the suit properties could be divided. A report was filed by the court commissioner. The respondents no. 2, 4, 5 and 6 filed separate objections to the commissioner''s report, staking their claim to the respective properties claimed by them.

The court having proceeded to consider whether the Commissioner''s Report could be accepted as regards the proposed division and allotment of the shares, has answered the same in the affirmative. It is this which is sought to be questioned in this appeal.

The appeal in RFA 1656/2012 is filed by Respondent no. 2, who is said to be the elder brother of the plaintiff-petitioner. He is also said to be aggrieved by the very order of the court below, accepting the Commissioner''s Report.

The appeal in RFA 1103/2013 is filed by Respondent no. 6, M/s. Vijaya Bank, also being aggrieved by the impugned order.

The endeavour of the several appellants is only to ensure a reworking of the division and allotment of shares to suit their convenience. There is no question of law involved. A sustained effort was made to bring about an amicable solution to suit everyone. After prolonged discussions and consideration of all possible permutations and combinations-it was not possible to arrive at any reasonable alternative combination of allotment of shares, to suit all. And as rightly held by the court below, the only party who could possibly raise any objection as regards the modality of division proposed by the court commissioner, was respondent no. 2, and since he had not raised any tenable objection, except a laconic plea of notice of the appointment of the court commissioner not being properly served etc., He had not proposed any alternative as to the valuation or allotment of the shares. He-had admitted having already alienated Item no. 1, 3 and 5 and hence was precluded from raising any objection to the allotment of other properties in his favour and hence, the court having found that the commissioner''s report was just and equitable, the same has been accepted.

This court, on a consideration of the several grounds urged in the appeals, finds no substance in the claim of respondent no. 5 and 6 as they are only claiming through respondent no. 2, who himself is helpless. Hence, there is no warrant for interference by this court, on the correctness or otherwise of the impugned Order. The appeals are dismissed.