[Cites 4, Cited by 0]
Karnataka High Court
Smt. Baby Suvarna vs Mr. Umesh Salian on 28 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
MISCELLANEOUS SECOND APPEAL NO.34/2023
BETWEEN:
1. SMT. BABY SUVARNA,
W/O LATE BABU SALIAN,
AGED ABOUT 73 YEARS.
2. SURESH,
S/O BABU SALIAN,
AGED ABOUT 49 YEARS.
3. RAMESH,
S/O LATE BABU SALIAN,
AGED ABOUT 48 YEARS.
ALL APPELLANTS ARE
R/AT DOOR No.4-101/4,
GUDDETHOTA, NAGORI,
MANGALURU-575 002. ... APPELLANTS
(BY SRI UDAYA PRAKASH M, ADVOCATE)
AND:
1. MR. UMESH SALIAN,
S/O LATE KOTIAPPA,
AGED ABOUT 60 YEARS,
R/A GUDDETHOTA,
NAGORI, KANKANDY,
MANGALURU-575 002.
2
2. MR. RAGHUNATH POOJARY,
S/O LATE KUSHALAKSHI,
AGED ABOUT 57 YEARS.
3. THARUN,
S/O LATE KUSHALAKSHI,
AGED ABOUT 29 YEARS.
4. SHRUTHI,
D/O LATE KUSHALAKSHI,
AGED ABOUT 27 YEARS.
5. MR. SACHIN,
AGED ABOUT 25 YEARS,
S/O LATE SMT KUSHALAKSHI.
RESPONDENT NOS.2 TO 5 ARE
R/AT PACCHINDKA, KALLIGE,
BANTWAL TALUK, D.K. ... RESPONDENTS
(BY SRI RAVISHANKAR SHASTRY G., ADVOCATE FOR R1;
R2 AND R3 ARE SERVED;
VIDE ORDER DATED 05.09.2024,
NOTICE TO R4 IS HELD SUFFICIENT;
VIDE ORDER DATED 19.09.2024,
NOTICE TO R5 IS DISPENSED WITH)
THIS M.S.A. IS FILED UNDER SECTION 100 READ WITH
ORDER 43 RULE 1(u) OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 02.01.2023 PASSED IN R.A.NO.122/2020 ON
THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM,
MANGALURU, D.K., ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 03.03.2020 PASSED IN
FDP No.16/2012 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
AND JMFC, MANGALURU, ALOWING THE FINAL DECREE FILED
UNDER ORDER XX RULE 18 R/W SECTION 151 OF CPC. REMAND
THE MATTER BACK TO THE TRIAL COURT TO PROCEED IN
ACCORDANCE WITH THE PARTITION ACT, 1893.
3
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.11.2025, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
This miscellaneous second appeal is filed against the
judgment and decree dated 02.01.2023 passed in
R.A.No.122/2020 allowing the appeal and setting aside the
judgment and decree dated 03.03.2020 passed in
F.D.P.No.16/2012 and remanding the matter to the Trial Court
to proceed in accordance with the Partition Act, 1893 ('the said
Act' for short).
2. The factual matrix of the case is that respondent
No.1 had filed a suit in O.S.No.192/2009 for partition of the suit
schedule property. The Trial Court after adjudication of the
same, passed the judgment and decree declaring that the
plaintiff is entitled for 5/6th share in the plaint schedule property
and it shall be divided into six equal shares by metes and
bounds. On the basis of the judgment and decree, the plaintiff
preferred petition for final decree to allot 5/6th share in the plaint
schedule property by appointing an advocate Commissioner with
the assistance of ADLR Surveyor. In the final decree
proceedings, respondent Nos.1 to 4 appeared through their
counsel, but they did not file any objections. The Court
appointed the Court Commissioner to effect partition and on the
basis of the preliminary decree, the Court Commissioner filed his
report stating that there is already a house and workshop
existing in the schedule property. If the property is to be
divided into 1/6th share of the respondents, it would result in
demolition of workshop and house causing hardship to the
petitioner, who is having 5/6th share in the plaint schedule
property. Hence, the Court Commissioner returned the warrant
unexecuted. The Court after hearing the arguments of the
learned counsel for the petitioner on I.A.No.1 under Sections 2
and 3 of the Act, allowed and permitted the petitioner to
purchase the undivided 1/6th share of the respondents as per
valuation. Subsequently, the respondents appeared in final
decree proceedings and submitted that they want their share as
per the preliminary decree. The Trial Court after rejecting the
earlier Commissioner's report appointed another Court
Commissioner to divide the schedule properties into six equal
shares and allot 5/6th share to the petitioner and 1/6th share to
the respondents as per the preliminary decree.
3. Subsequently, the Court Commissioner visited the
property and measured the property with the assistance of ADLR
Surveyor and filed the report before the Trial Court on
02.03.2020 and the petitioner filed his objections to the
Commissioner report. The Trial Court having considered the
same, framed the point for consideration whether the petitioner
has made out sufficient ground to allot the shares as per the
preliminary decree? The Trial Court after hearing the arguments
of both the parties, allotted 5/6th share to the petitioner i.e.,
0-15.58 cents of land out of available extent in the schedule
property. The portion of share consisting of residential building,
one shop premises, one vehicle parking shed, two water tanks
and one workshop premises is identified and coloured in yellow
colour by the Commissioner. The Commissioner also identified
0-03.12 cents of land coloured in green colour i.e., 1/6th share
allotted to the share of the respondents and final decree was
drawn.
4. Hence, an appeal was filed in R.A.No.122/2020. The
First Appellate Court having considered the grounds urged in the
appeal, formulated the point whether the appellant is entitled to
claim that the suit schedule property be sold under Section 3 of
the Partition Act, 1893 and whether the impugned order of the
learned Trial Court dated 03.03.2020 passed in FDP No.16/2012
calls for an interference? The First Appellate Court having heard
the respective learned counsel and considering the material
available on record, in paragraph No.14 comes to the conclusion
that the subdivision of the workshop, which is under the single
management of the appellant, certainly will not help the
respondents to enjoy the property. Practically it is not divisible
property. If the workshop has to be subdivided amongst the
parties, it will cause demolition of the workshop and useful to
none and therefore, comes to the conclusion that the order
passed by the Trial Court earlier on 23.11.2018 invoking
Sections 2 and 3 of the Act, should have been enforced and the
Trial Court committed an error in passing an order completely
contrary to the earlier order. The First Appellate Court also
comes to the conclusion that when the property is incapable to
divide, it was proper to consider the request made by the
appellant and answered both the points in the affirmative and
also while giving an opportunity to purchase the property, made
it clear that if the shareholder of the smaller interest chooses, he
can also ask for leave to purchase the property at the valuation
made by the Court and also the appellant can purchase 1/6th
share on proper valuation fixed by the Court and if both does not
do so, then the property is to be sold in public auction. Hence,
answered both the points in the affirmative and set side the
order of the Trial Court and remanded the matter to the Trial
Court to proceed in accordance with the said Act.
5. Being aggrieved by the judgment and decree of the
First Appellate Court passed in R.A.No.122/2020, the present
miscellaneous second appeal is filed before this Court.
6. The main contention of the learned counsel for the
appellants is that when the Commissioner visited the spot and
given the report that the property can be divided and when the
appellants want to possess a share in the land, the First
Appellate Court ought not to have exercised its discretion for
sale of the appellants' share under Sections 2 and 3 of the said
Act. The learned counsel would vehemently contend that the
appellants cannot be compelled to sell their share and hence, it
requires interference of this Court.
7. The learned counsel for respondent No.1 in his
arguments would vehemently contend that earlier an application
was filed and an order was passed on 23.11.2018 is not in
dispute, wherein permission was given to purchase the property.
The said order has attained its finality and when the same was
not challenged, the same was taken note of by the First
Appellate Court and hence, the question of setting aside the
order of the First Appellate Court does not arise. The learned
counsel also contend that after seven years, the appellants
appeared and filed objections to the Commissioner's report and
second Commissioner was also appointed and he has given the
report. The learned counsel would submit that when the
objection was filed, on the very same day, the Trial Court passed
an order without considering the objections and hence, the
Appellate Court taken note of the factual aspects and passed a
well-reasoned order and reasons also assigned while setting
aside the order, particularly in paragraph No.14 and hence, it
does not require any interference.
8. Having heard the learned counsel for the appellants
and the learned counsel for respondent No.1, the points that
would arise for the consideration of this Court are:
(i) Whether the First Appellate Court committed
an error in setting aside the order passed in
FDP and remanding the matter for fresh
consideration?
(ii) What order?
Point No.(i):
9. Having heard the learned counsel for the appellants
and the learned counsel for respondent No.1, the main
contention of the learned counsel for the appellants is that when
the property can be physically divided and independently
enjoyed and when the appellants want to possess a share in the
land, the Court ought not to have exercised its discretion to sell
the property of the appellants invoking Sections 2 and 3 of the
said Act. The learned counsel also vehemently contended that
the appellants cannot be compelled to sell their property. No
doubt, there is a force in the contention of the appellants counsel
that no one can be compelled to sell their property. But, the
Court has to take note of the material available on record. The
total extent of property available in Sy.No.71/3A1P6 is 22 cents.
It is not in dispute that in terms of the preliminary decree,
respondent No.1 is entitled for 0-15.58 cents of land and the
appellants are entitled for 0-03.12 cents of land. It has to be
noted that the Commissioner also visited the spot and identified
the same. The Commissioner's report also clearly discloses that
5/6th share of respondent No.1 was shown yellow colour and
0-03.12 cents was shown in green colour. It is also important
to note that this property is abutting to National Highway No.74.
It is also not in dispute that National Highway would be
expanded and portion of that property is also identified for
widening the same and hence, automatically the area would be
reduced. When such being the case, I do not find any error on
the part of the First Appellate Court in setting aside the order of
the FDP Court. It is also important to note that in the said
property, there is a house and also workshop. It is not in
dispute that 5/6th share is allotted in favour of respondent No.1
and also workshop which is in existence, which is under the
single management of respondent No.1 and if division is made,
certainly it will affect the enjoyment of the property and the
property is also not divisible. If it is divided, the workshop which
is in existence, would be demolished and no one can use the
same and the said factors are also taken note of by the First
Appellate Court.
10. It is also important to note that there was an order
before the Trial Court when an application was filed permitting
respondent No.1 to purchase the property vide order dated
23.11.2018 and while passing such an order, Sections 2 and 3 of
the said Act was also invoked. Even after the appearance of the
appellants herein, they have not filed any application to recall
that order or to challenge that order and the said order has
attained its finality and hence, the order dated 23.11.2018 is still
in existence. It is also important to note that when the material
clearly discloses that house and workshop is incapable of
partition, the property can be sold and an observation was also
made that either of the parties can purchase the same. The
appellants herein also can purchase 5/6th share of respondent
No.1 if they would like to have the property and the same also
would be on proper valuation fixed by the Court and even option
was given to respondent No.1 also to purchase the property. The
First Appellate Court also made an observation that even if the
shareholder of the smaller interest chooses, he can also ask for
leave to purchase the property at the valuation fixed by the
Court. When such observation is made that the property is not
divisible since house and workshop is in existence and further
made an observation is made that highest bidder, who offers
higher price above the valuation made by the Court can be
accepted by the Trial Court, I do not find any error on the part of
the First Appellate Court in setting aside the order of the Trial
Court and remitting the matter to the Trial Court to consider the
same. The First Appellate Court also made an observation that if
both the parties fail to offer the valuation fixed by the Court,
then the property is to be sold in public auction in order to fetch
more amount and also taken note of Section 3 of the said Act.
When such being the case, I do not find any ground to interfere
with the findings of the First Appellate Court. The First Appellate
Court only set aside the order of the Trial Court and remanded
the matter to the Trial Court to proceed in accordance with the
Partition Act, 1893 and safeguarded the interest of both the
parties while remanding the same. Hence, I answer the point in
the negative.
Point No.(ii):
11. In view of the discussions made above, I pass the
following:
ORDER
The miscellaneous second appeal is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
MD
