Telangana High Court

Smt.K.Sattamma And 4 Others vs Smt.K.Lalitha on 6 March, 2024

  IN THE HIGH COURT FOR THE STATE OF TELANGANA


           CIVIL REVISION PETITON No.2934 of 2022
Between:

K.Sattamma, W/o Late K.Ramaiah
and four others.

                                                     ... Petitioners
And

K.Lalitha, W/o Late K.Mahesh Kumar,
and two others.


                                                 ... Respondents

JUDGMENT PRONOUNCED ON 06.03.2024

HON'BLE JUSTICE LAXMI NARAYANA ALISHETTY

1. Whether Reporters of Local newspapers :      Yes
  may be allowed to see the Judgment?


2. Whether the copies of judgment may be

  marked to Law Reporters/Journals?        :   Yes

3. Whether her Lordship wishes to
 see the fair copy of the Judgment?        :   Yes
                                 2
                                                              LNA, J
                                                  CRP.No.2934 of 2022



       HON'BLE JUSTICE LAXMI NARAYANA ALISHETTY

           CIVIL REVISION PETITON No.2934 of 2022

% 06.03.2024

Between:

# K.Sattamma, W/o Late K.Ramaiah
and four others.


                                                   ..... Petitioners

And:
$ K.Lalitha, W/o Late K.Mahesh Kumar,
and two others
                                                  ....Respondents

< Gist:



> Head Note:


! Counsel for the Petitioners: Sri R.Gopi Mohan

^ Counsel for Respondents: Sri Bidakar Gopal


? Cases Referred:

   1. 2006 CJ (SC) 353
   2. (2005) 7 SCC 791
   3. 2019 SCC Online TS 2060
                                    3
                                                                  LNA, J
                                                      CRP.No.2934 of 2022



HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

          CIVIL REVISION PETITON No.2934 of 2022
ORDER:

This Civil Revision Petition is filed against the order dated

10.11.2022, passed by the Court of XVII Additional Senior Civil

Judge, City Civil Court, Hyderabad in I.A.No.174 of 2019 in

O.S.No.221 of 2014.

2. The petitioners are the defendants and the respondents are

the plaintiffs in the suit. For convenience, the parties are referred to

as they are arrayed before the trial Court.

3. Succinctly stated, the facts of the case are that the plaintiffs

filed suit for partition and separate possession of the suit schedule

property. The trial Court after full-fledged trial, and on

appreciating the evidence on record, passed the preliminary decree.

Subsequently, the plaintiffs filed the aforesaid I.A. praying the

Court to pass final decree in pursuance of the preliminary decree

by allotting 1/6th share to them in the suit schedule property as per

the Advocate Commissioner's report.

4. The trial Court on perusing the material available on record

and on hearing the learned counsel for both the parties, passed the

LNA, J

impugned order, dated 10.11.2022, adjourning the case to

05.12.2022 for taking steps under Sections 2 and 3 of the Partition

Act and for filing the Market Value Certificate of the suit schedule

property. Aggrieved by the same, the defendants approached this

Court by way of filing this Civil Revision Petition.

5. Learned counsel for the petitioners/defendants contended

that the trial Court erred in ordering sale of the suit schedule

property in public auction, instead of partitioning the same into six

equal shares and allotting one such share to the

respondents/plaintiffs. He further contended that the trial Court

ought not to have put the suit schedule property to public auction

and on the other hand, the major share holders i.e., the petitioners

ought to have been accorded opportunity to purchase the suit

schedule property and hence, he seeks to set aside the impugned

order of the trial Court.

6. Learned counsel for the petitioners relied upon the decision

of the Hon'ble Supreme Court in Hasham Abbas Sayyad Vs.

Usman Abbas Sayyad 1, and in the said case, the question which

arose for consideration is as to whether the property in suit could

2006 CJ (SC) 353

LNA, J

be put on action sale without initiating a formal final decree

proceeding and the Hon'ble Supreme Court on analyzing the entire

case vis-a-vis the provisions of Civil Procedure Code and other

judgments of the Hon'ble Supreme Court, at paras 23 and 24

observed as under:-

"23.This aspect of the matter has recently been considered by this Court in Harshad Chiman Lal Modi Vs. DLF Universal Ltd. And another 2 in following terms:

We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by

2005 7 SCC 791

LNA, J

statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity.

24. We may, however hasten to add that a distinction must be made between a decree passed by a court which has no territorial or pecuniary jurisdiction in the light of Sec. 21 of the Code of Civil Procedure; and a decree passed by a court having no jurisdiction in regard to the subject matter of the suit. Whereas in the former case, the appellate court may not interfere with the decree unless prejudice is shown, ordinarily the second category of the cases would be interfered with."

7. The aforesaid decision is not applicable to the present case

as no point on territorial or pecuniary jurisdiction of the trial Court

is raised by the petitioner.

8. Per contra, learned counsel for the respondents submitted

that the trial Court taking into consideration the fact that it is not

practically possible to divide the suit schedule property into six

equal shares by metes and bounds, rightly ordered for auction of

the suit schedule property and hence, the impugned order needs no

interference by this Court.

9. As seen from the record, it is evident that the suit schedule

property is a house, which is sought to be divided into six equal

LNA, J

shares and to allot 1/6th share to the plaintiffs. The trial Court, on

appreciating the evidence on record, passed preliminary decree in

favour of the plaintiffs in the suit filed for partition and separate

possession of the suit schedule property.

10. Subsequently, an Advocate Commissioner was appointed to

note down the physical features of the suit schedule property by

metes and bounds to enable and facilitate the Court to pass final

decree. The Advocate-Commissioner submitted his report stating

that the suit schedule property is a house with Ground floor and

First Floor and there are two rooms in each floor and both the

rooms in the first floor do not have any doors. He further stated

that GHMC Licence Engineer measured the suit schedule property

and it was found that the area of the suit house is 44 square yards

only, and not 60 square yards as alleged by the plaintiffs in the suit.

However, both the parties did not dispute the said report of the

Advocate-Commissioner as regards the extent of the suit house.

11. The trial Court observed in the impugned order that in view

of the report of the Advocate-Commissioner, it is practically not

possible to divide the suit schedule property into six equal shares as

LNA, J

per the preliminary decree and the ingress and egress to all the

parties to the suit cannot be given separately.

12. Here, it is pertinent to reproduce Section 2 of the Partition

Act, which reads as follows:-

"Power to court to order sale instead of division in partition suits.--Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds."

13. From a reading of the above provision of the Partition Act,

it is clear that if it appears to the Court, by reason of the nature of

the suit property, that a division of the suit property cannot be

reasonably or conveniently be made, it can direct sale of the

property and distribution of the proceeds to all the shareholders.

LNA, J

14. The High Court of Andhra Pradesh in M.A. Mujeeb v.

Habeeb Alladin & Ors 3, at Paras 12 to 14 held as under:-

"...In the case on hand, the court below, basing on Advocate Commissioner's report that the property is indivisible as per the shares allotted in the preliminary decree, had allowed the application for conducting of auction so as to distribute the sale proceeds as per the respective shares determined in the preliminary decree; and after determination of respective amounts to be paid, by formalizing the distribution of amounts in accordance with the shares, final decree would be passed.

13. It may also be noted that as a matter of fact, the court could have made an order in the first instance itself under Order 20 Rule 18 (ii) CPC, as passing preliminary decree declaring the rights of the parties is not mandatory in each and every case, and it is only in cases where the court comes to the conclusion that if partition or division of the property cannot conveniently be made without further enquiry, a preliminary decree is required to be made.

14. In the facts of the present case, considering the division of shares of respective sharers in the immovable property, as determined in the

2019 SCC Online TS 2060

LNA, J

preliminary decree being cumbersome and not feasible, the preliminary decree itself could not have been made as a final decree. However, it appears that the trial court, in a routine manner, proceeded with passing of preliminary decree declaring the rights of the parties."

15. In the instant case also, it is evident from the Advocate-

Commissioner's report that division of the suit schedule property

as per the preliminary decree, by metes and bounds is practically

not feasible and it is cumbersome. The trial Court taking into

account the said report, ordered for public auction of the suit

schedule property and to distribute the sale proceeds equally to all

the six share holders.

16. In the light of the above facts, circumstances and legal

position, this Court is of the considered opinion that the aforesaid

view of the trial Court is in accordance with law and therefore,

cannot be faulted with. The parties to the suit can participate in the

public auction, if they so wish, and purchase the suit schedule