SMT. RATHNAMMA v. TEJAS

CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR ORAL ORDER In this petition, the petitioner seeks following reliefs: "a) Set-aside impugned Order 25.04.2025 in FDP No.69/2024 passed by Hon'ble I ADDL. SENIOR CIVIL JUDGE AND is herein produced as CJM, MYSURU ANNEXURE-A. b) Pass such other order(s) as this Hon'ble Court may deem fit and proper in the interest of justice and equity."

2. A perusal of the material on record will indicate that the respondent instituted a suit in O.S.No.1040/2005 against the petitioner/defendant No.2 and four other defendants viz. defendant Nos.1, 3, 4 and 5 for partition and separate possession of his alleged share in the suit schedule immovable property and for other reliefs. By judgment and decree dated

11.06.2010, the trial court decreed the suit in favour of the plaintiffs against the defendants by declaring that the plaintiff - 3 - NC: 2026:KHC:6919 WP No. 12594 of 2025 HC-KAR was entitled to 1/15th share in the suit schedule properties comprising of two items of immovable properties. Aggrieved by the said judgment and decree of the trial Court, the defendants including the petitioner/defendant No.2 filed an appeal in R.A.No.635/2010 which was disposed of by the First Appellate Court vide judgment and decree dated 13.04.2011, whereby the share of the plaintiff was enhanced/increased to 1/10th in both items of suit schedule properties. The said judgment and decree passed by the First Appellate Court in R.A.No.635/2010 dated 13.04.2011 has attained finality and become conclusive binding parties. Subsequently, respondent/plaintiff instituted final decree proceedings in FDP No.69/2013 to enforce and implement the preliminary decree. In the said Final Decree Proceedings, a Court Commissioner was appointed and a report was obtained and the trial Court disposed of the Final Decree Proceedings allotting specific portions of item No.1 of the suit schedule properties in favour of the petitioner by holding as under: "ORDERS The petitioner through guardian filed this petition to draw the final decree by dividing the - 4 - NC: 2026:KHC:6919 WP No. 12594 of 2025 HC-KAR petition schedule properties as per the preliminary decree passed in RA.No.635/2010.

2. The petition averments are as under: decree The petitioner filed O.S.No.1040/2005 for the relief of partition and separate possession of her share in the suit schedule properties. The the said suit was dismissed on 11.06.2010. Against the judgment RA.No.635/2010 before Hon’ble III Addl. District Court, Mysuru. The said appeal came to be allowed by allotting 1/10th share to the petitioner. Now the petitioner filed this petition for drawing the final decree as per the preliminary decree passed in RA.No.635/2010, in the petition schedule properties. Hence he prays to allow the petition. petitioner

3. After issuance of notice, the respondents No.1 to 3 have appeared through their advocate. The respondents No.4 and 5 have remained absent. The respondents no.1 to 3 have not field any objection to the petition.

4. As per the order on I.A.No.IV the court commissioner was appointed for dividing the petition schedule property as per the preliminary decree passed in RA.no.635/2010. After Commissioner work, the court commissioner has filed his report on 5.12.2019 along with the sketch. As per the commissioner report there are 3 options were given along with valuation. The petitioner have no report. The objection respondent No.1 to 3 have not filed any objection to commissioner report. The respondents No.4 and 5 are exparte. commissioner

5. Heard from both side advocate. Perused the entire records. - 5 - NC: 2026:KHC:6919 WP No. 12594 of 2025 HC-KAR

6. The points that arise for my consideration are as under:

1. Whether the petitioner has made out grounds to allow the petition and draw the Final Decree as per the Commissioners report ?

2. What order?

7. My answer to the above point is as under : Point No.1 : In the Affirmative, Point No.2 : As per final order for the following: REASONS

8. Point No.1 : The petitioner has filed O.S.No. 1040/2005 by claiming the Partition and separate possession of his share in the suit schedule properties. The said suit was came to be dismissed on 11.6.2010. Against judgment ad decree, the petitioner filed RA.No.635/2010 before the III Addl. District Court Mysuru. The said appeal was came to be allowed by allotting 1/10th share to the petitioner in the suit schedule properties which are mentioned in the petition as schedule 1 and 2. Now the petitioner filed this petition for drawing the final decree as per the preliminary decree passed in RA.No.635/2010.

9. The respondent No.1 to 3have appeared through their advocate. The respondent No.4 and 5 have not appeared. The respondent who have appeared have not filed any objection to the petition.

10. As per the order on IA.No.IV the Civil Engineer was appointed as court commissioner for dividing the petition schedule properties. Accordingly the court commissioner has conducted the commission work - 6 - NC: 2026:KHC:6919 WP No. 12594 of 2025 HC-KAR and filed his report on 5.12.2019. The petitioner have no objection to the commissioner report. The respondent No.1 to 3 have not filed any objection to the commissioner report. petitioner

11. Even though suit filed by the petitioner in O.S.No.1040/2005 was dismissed, but against the decree judgment RA.No.635/2010. The said RA.No.635/2010 was allowed and granted 1/10th share to the petition schedule properties. The respondents who have appeared have not produced any documents to show that any second Appeal was filed against judgment and decree passed in RA.No.635/2010. Now as per preliminary decree 1/10th share was divided in the petition schedule properties.

12. As per the commissioner report 1/10th share in item No.1 will comes to 220 sq.ft and in item No.2 1/10th share comes to 750 sq.ft. So totally 1/10th share of petitioner in item No.1 and 2 comes to 970 sq.ft. The court commissioner has given 3 options in respect of share of the petitioner in item No.1 and 2. To the said commissioner report the petitioner has no objection. Even though respondents No.1 to 3 have appeared, but they have not filed any objection to the commissioner report. Hence the commissioner report can be accepted and final decree has to be drawn. Hence the petitioner has made out a ground to allow the petition. Therefore, Point No.1 is answered in the Affirmative.

13. Point No . 2 : In view of discussions and reasons stated in point No.1, I proceed to pass the following; O R D E R The Final Decree Petition filed by the petitioner is allowed. - 7 - NC: 2026:KHC:6919 WP No. 12594 of 2025 HC-KAR Draw the final decree as per the commissioner report in respect of petition schedule properties. The office is directed to draw the Final Decree as per the commissioner report and sketch after furnishing stamp paper by the petitioner. Keep the Commissioner’s Report and Sketch as part and parcel of Final decree. Parties to bear their own costs."

3. Subsequently, respondent, who a plaintiff/petitioner, instant application I.A.No.II seeking review/recall of the aforesaid order dated 07.10.2021 on the ground that much prior to the said portion in item No.1 being allotted to him in the Final Decree Proceedings, the said portion had been mortgaged in favour of Mysuru Merchants Co- operative Bank Ltd., towards a loan taken by the petitioner herein and the said property had been auctioned and was unavailable to be allotted to the respondent who was the beneficiary of the final decree. The said application having not been opposed by either the petitioner or the other defendants, the trial Court proceeded to passed the impugned order allowing the application by holding as under: - 8 - NC: 2026:KHC:6919 WP No. 12594 of 2025 HC-KAR :Orders on I.A.No.II An application filed by the petitioner represented through his natural guardian mother Smt.Roopa H. u/Order XLVII Rule 1 R/w/Section 151 of CPC to review the order dated: 07.10.2021 by appointing a fresh commissioner to identify his share of 970 sq.ft. area from the remaining portion of door No.373/1, 2 and 373 situated at 8th main, 1" stage, Vishveshwara Nagara, Khille Mohalla, Mysuru measuring 40 x 55 ft. or bring the properties for sale in a public auction to get his share by way of money.

7. The gist of the application is as follows: It the same, the suit was is submitted that, O.S.No.1040/2005 on the file of this court and was allotted 1/5th share in the plaint schedule properties under the judgment and decree dated: 11.06.2010. Questioning father of petitioner preferred R.A.No.635/2010 on the file of Hon'ble III Addl. District Judge, which was disposed off by confirming the judgment and decree of the trial court by modifying the ratio in its judgment dated: 13.04.2011. Hence, this petition was filed to effect partition and separate possession of minor petitioner's share. A court commissioner was also appointed. The court commissioner after executing the warrants, filed his report. The court has accepted the report and passed orders on 07.10.2021, directing the office to draw final decree as per the Commissioner's report and sketch. It is kept as part and parcel of the final decree.

4. It is further submitted that, to deceit the petitioner's legitimate share over the property, clandestinely the 2nd defendant, who is mother-in- law of the applicant and grand mother of the minor petitioner has raised loan of Rs. 10,00,000/-from Mysuru Merchants Co-operative Bank Ltd., The 1 defendant being the husband of applicant stood, as a - 9 - NC: 2026:KHC:6919 WP No. 12594 of 2025 HC-KAR guarantor by creating equitable mortgage of the property under the alleged registered partition deed dated: 14.07.2010 during the pendency of the above proceedings to secure the debt. This fact of creating charge over the property came to the knowledge of the applicant for the first time on 08.09.2022, when bank authorities took the possession of the property. Immediately, the applicant lodged a police complaint and finally approached the Hon'ble Vil Additional Civil Judge & JMFC, Mysuru in 0.5.No.1515/2022 for the relief of her reinductment along with minor petitioner and also to safeguard the minor petitioner's right and restrain the bank not to alienate the same. Initially, both the applications were allowed and later on bank filed an application u/Order VII Rule 11(d) of CPC and the court passed an order on 19.10.2022 by rejecting the plaint. Questioning the same, the minor petitioner preferred W.P.No.23170/2022 on the file of Hon'ble High Court of Karnataka, which also disposed on 11.04.2023 with a direction to approach the Debt Recovery Tribunal Recovery Tribunal for redressal or in the final decree petition to get his legitimate share. Hence, it is prayed to appoint a fresh court commissioner to mark 980 sq.ft. area from the property held by the 2nd respondent by metes and bounds or bring all the properties for sale to get equivalent share by reopening the above proceedings.

5. Notice was issued to all the respondents. The respondent No.2, 4 and 5 not chosen to appear, nevertheless, the applicant got issued public notice in daily newspaper by way of substitute service of notice. The respondent No.1 was represented by his counsel, but did not choose Application. to oppose

6. Heard arguments of learned counsel for the documents minor petitioner and perused available on record. - 10 - NC: 2026:KHC:6919 WP No. 12594 of 2025 HC-KAR

7. The points that arise for my consideration are as follows: Point No.1: Whether the applicant makes out sufficient cause to re- decree proceedings and to appoint a Court identify petitioner's share or public auction as prayed for 1 u/Order XLVII Rule R/w/Section 151 of CPC? Commissioner Point No.2: What Order?

7. follows:- My findings on the above points are as Point No.1: In the Affirmative Point No.2: As per final order for the following: REASONS

8. Point No.1: Upon reading the final decree proceedings order dated: 07.10.2021, the Civil Engineer was appointed as Court Commissioner to divide the petition schedule properties. Accordingly, the Court Commissioner also conducted commission work and filed his report on 05.12.2019. None of the respondents opposed the commissioner's report. The petitioner under preliminary decree was granted 1/10th share in the petition schedule properties. As per commissioner's report, 1/10th share in item No.1 is marked as 220 sq.ft. and in Item No 2 is marked as 750 sq.ft. In total 1/10th share in item No.1 and 2 properties is 220 sq.ft + 750 sq.ft. = 970 sq.ft. - 11 - NC: 2026:KHC:6919 WP No. 12594 of 2025 HC-KAR 9 The commissioner has given three options in respect to the item No.1 and 2 properties. As per the option No.1, based on sketch No.2 & 3 by dividing item No.1 & 2, in both the cases, the width of the land is too small compared to length (depth). From this type of division, nobody will get the benefit. Hence, it is not feasible to physical partitioned the share and allot the properties to the parties. Therefore, an opinion is drawn to put item No.1 into public auction and the money earned from it can be divided as per court order.

10. The second option is that, the mother of the petitioner, natural guardian is living in the ground floor in the western portion of item No.1 separately. The land measures 970 sq.ft. Comparing the item No.1 & 2 and also the plaintiff is in possession of the portion of item No.1, by trial and error. more or less in value, it is proposed to retain the portion of ground floor i.e. item No.1 property to plaintiff's mother. The advantage of corner property is equivalent to difference of land area. Therefore, it is prayed that plaintiff's mother can be allotted, where she is in possession of the corner portion of the item No. 1 and it measures 196 ft. x 400 ft. and unfinished ground floor and first floor building with a staircase.

11. The third option given by the Court Commissioner is that, 4th respondent by name Lingaraju has placed partition deed dated: 14.07.2010 made among the family members, dividing item No.1 & 2 and allotted the equivalent portion in tem No.1 to plaintiff's father i.e. E' schedule, which is now in possession of plaintiff's mother. The same may be allotted to plaintiff's mother as equivalent 1/10th share as per court order. As per the partition deed, E' schedule the portion allotted to L.Dinesh in the item No. 1. - 12 - NC: 2026:KHC:6919 WP No. 12594 of 2025 HC-KAR residing. Under

12. Out of property bearing Door No.373, 1 stage, Industrial suburb, Khille Mohalla, Mysuru, the site measures E-W:58 ft. and N-S:40 ft. The western corner portion measures E-W:19% ft. and N-S400 ft. vacant site with unfinished ground and first floor building. At this stage, the applicant alleged that, respondent No.1 and 2 have mortgaged the property and secured the debt creating charge over the property, which includes the portion where, the minor petitioner the said circumstances, the final decree in favour of minor petitioner being the first charge over the suit schedule properties should be protected. Under Section 3 of the partition act, the minor petitioner's share and interest can be derived by sale of the property and the distribution of the share of money to the minor petitioner. Otherwise, the property cannot be reasonably or conveniently divided amongst the parties. Except by sale of the property and distribution of the proceeds, it is more beneficial to the minor petitioner. The opinion of the Court Commissioner as per option No.1 for public auction is found reasonable, where the petitioner's share can be converted into money, so that, the bank can have its charge over the suit schedule property for the mortgage created by respondent No. 1 and 2. In such a situation, it is not feasible to appoint a Court Commissioner for distribution of share to the minor petitioner. It can be conveniently or reasonably partitioned by metes and bounds by bringing the properties for public sale. It will not disturb the properties intrinsic worth. By adopting such feasible method for partition, the welfare and interest of the minor petitioner can be protected. Under such circumstances of the case, there is no alternative to resort except process of public sale. Therefore, equitable method is adopted to take the value of the property and subject to it for public sale. The highest bidder. who reasonably increase for the raise in the price of the property, the amount in conformity with the share of the minor petitioner can be deposited to - 13 - NC: 2026:KHC:6919 WP No. 12594 of 2025 HC-KAR the court and the remaining can be deposited towards encumbrance created by the respondent. No. 1 and 2 under mortgage to bank.

13. In R.A.No.435/2010, the Hon'ble III Additional District & Sessions Judge observed that, the 1 defendant has abandoned the minor petitioner and his mother. It is determined that, the minor petitioner is entitled for 1/10th share in the plaint schedule properties and at the same time, directed that minor petitioner is not entitled to claim maintenance from 1" defendant. If, the minor petitioner not given his share as determined in R.A.No.435/2010, will effect the welfare and interest of the minor petitioner drastically. If this application not allowed, the minor petitioner would be left with no maintenance or his share of property. Hence, it is fit to allow the application. Hence I answer Point No.1 in the 'Affirmative'.

14. Point No.2: In view of above discussion, I proceed to pass the following: ORDER I.A.No.II filed by the petitioner u/Order XLVII Rule 1 R/w/Section 151 of CPC is hereby allowed. By exercising powers u/Section 3 of the suit schedule the Partition Act, properties shall be subjected to public sale to satisfy the minor petitioner's 1/10th share out of sale proceeds, in the interest of justice and equity."

4. A perusal of the aforesaid facts and circumstances and the material on record including the impugned order will clearly indicate that the trial Court has correctly and properly - 14 - NC: 2026:KHC:6919 WP No. 12594 of 2025 HC-KAR considered and appreciated the entire material on record including the fact that the respondent, who was the beneficiary of the aforesaid final decree dated 07.10.2021, was not in a position to enjoy the fruits of the decree since the portion of item No.1 of the suit schedule property had been mortgaged much earlier by the petitioner and had been brought to sale in a public auction thereby warranting/recalling of the earlier order passing a final decree and reopening of the final decree proceedings for disposal in accordance with law.

5. Upon re-appreciation, re-evaluation re-consideration of the entire material on record, I am of the considered opinion that the impugned order passed by the trial Court cannot be said to suffered from any illegality or infirmity nor can the same be said to have occasioned failure of justice warranting interference by this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India as held by the Apex Court in the cases of Radhey Shyam and Ors. vs. Chhabi Nath and Ors [(2015) 5 SCC 423], K.P.Natarajan and Ors. vs. Muthalammal and Ors [AIR - 15 - NC: 2026:KHC:6919 WP No. 12594 of 2025 HC-KAR 2021 SC 3443] and Mohd. Ali v. V.Jaya [(2022) 10 SCC 477].

6. In the result, the following: ORDER i) The petition is hereby dismissed. ii) The trial Court is directed to dispose of the final decree proceedings within a period of four months from the date of receipt of a copy of this order. . VM List No.: 2 Sl No.: 16 Sd/- (S.R.KRISHNA KUMAR) JUDGE