Partition suit

Defendant filed appeal within 90 days before High Court on the basis of value of suit property determined by the local commission

High Court upholding the objections of plaintiff to maintainability of the appeal, sent the appeal to District Judge for adjudication on merits

District Judge dismissed appeal on the ground of limitation

Validity

Limitation for filing appeal before High Court was 90 days whereas appeal could be filed before District Judge within 30 days

Under S.14 of the Limitation Act, 1908, when a party failed to justify the filing of plaint/appeal before wrong forum, time of proceedings before such forum would not be excluded from the period of limitation

Under S.24, C.P.C. where a matter was transferred, such matter would proceed from the point at which it was transferred, unless otherwise directed

In the present case, appeal was not returned by High Court to defendants for its presentation before the proper forum, rather same was sent/remitted/ transferred to the District Court

Appeal was filed within time before High Court, so District Court was obliged to proceed with the appeal from the time/point the same was sent to the District Court

Even if defendants had moved application for condonation of delay appellate court should have appreciated the legal proposition that appeal before High Court had been filed within time and the same had not become time-barred on transfer by High Court

Revision was accepted.

Sale of property in favour of auction purchaser objected to by a person having in his favour earlier agreement to sell by judgment debtor

Validity

Auction purchaser would be bound by such agreement, if he had notice thereof before participating in auction proceedings

Such person could not challenge sale in favour of auction purchaser prior to determination of validity of such agreement by competent court.

Court could set aside such sale, if property owners challenged same within stipulated period and showed commission of glaring illegalities and irregularities during auction

Such order of sale for not being challenged by such co-sharers had attained finality to their extent and could not be challenged by them at any subsequent stage due to having acquiesced therewith.

Order of Trial Court directing its Nazir to dispose of property by calling public bids and allowing parties to participate in auction, while their shares in sale proceeds would be determined after recording evidence

Validity

None of parties had expressed any grievance about such order

Such arrangement made by Trial Court between parties for partition of joint property seemed to be acceptable to every one

Partition of property in terms of such order was upheld by Supreme Court in circumstances.

Relief of partition is specifically asked for in the prayer clause of the suit and in a partition lis if an issue is joined by the defendant about, the joint ownership of the suit properties, it shall be for the court to resolve that

If the suit properties are common thus, partitionable or otherwise; for this purpose the nature of the transaction can be looked into by the court.

Where special Tribunal/Court was constituted to hear and decide disputes under relevant statute, then all other Courts would stand debarred from exercising powers of such nature

Plaintiffs had not approached Rent Controller for fixation of fair rent of suit property

Neither Official Assignee had power to make a reference to Court for fixation of fair rent nor Court could exercise such a power

High Court in appeal set aside impugned order leaving plaintiffs/landlords to approach Rent Controller for fixation of rent of suit property.

Order of Trial Court to auction property without providing opportunity to shareholders to apply for leave to buy property

Validity

Partition decree consisted of preliminary decree and final decree

Once preliminary decree was passed, then provisions of S.2 of Partition Act, 1893 would not apply and Court would have to pass final decree and resort to provision of S.3 thereof and in case of failure of any shareholder to apply for leave to buy share, then property would be liable to be auctioned

Once property was found to be indivisible, then Court for effecting partition would have to follow procedure laid down in Partition Act, 1893 after providing opportunity to shareholders to apply for leave to buy property

Shareholder would have right to request Court for sale of property before passing decree for partition

Object of S.3 of Partition Act, 1893 was to prevent property to fall into hands of third party, if same could be done in a reasonable manner

High Court set aside impugned order in circumstances

Principles.

Petitioners assailed the judgment and decree of the Court on a variety of grounds and contended, inter alia, that the matter had been dealt with in a cursory and mechanical manner and without application of judicious mind which had materially prejudiced the rights of the petitioners; that the Local Commissioner had not made the partition. of suit property in accordance with law; that one of the petitioners had been denied her entitlement although she was the owner of greater share in suit property as per the Goshwara placed on record; that the Commissioner had recorded no evidence on the spot and the entire proceedings were conducted at the back of the petitioners; that the Commissioner had taken the thumb-impressions and signatures on a white paper and the alleged statement recorded by him as a. compromise was not made with the consent of the petitioners and they had given no such statement to the Commissioner and that the Commissioner had not divided the share of each owner on the spot and had not given the front portion to each owner and the entire front of the suit property had been given to one person's legal heirs

Validity

Petitioners had filed objection petition and evidence was recorded by the Trial Court regarding the report of the Commission

Report was accepted and appeal was filed against the same which was converted into revision and dismissed- Petitioners having accepted the report of the Commission through their joint statement and raising no objection regarding its authenticity, could not be allowed to a somersault and agitate that the report of the Commission was prepared in their absence without recording evidence and that their signatures had been obtained on a blank paper which was subsequently written in accordance with the wishes of the respondents

No illegality or irregularity had been pointed out and petitioners had failed to demonstrate the existence of circumstances justifying the interference of the High Court under Art.199 of the Constitution.

[Adverse possession].

Art. 185(3)-Leave to appeal-Partition suit-Petitioner in trial Court failing to prove "will" and "gift" and suit decreed accordingly Finding maintained by appellate Court-High Court in second appeal refusing to interfere with concurrent findings of fact recorded by two lower Courts-Nothing in evidence on record found by Supreme Court justifying interference with finding of Courts below-Petition dismissed.

Partition Suit-Compromise decree whereby some of parties including N and Z given money in lieu of their shares in property-Decree challenged in separate suit by N and Z on ground of fraud

Suit decreed and preliminary decree passed declaring N and Z entitled to share in property-No appeal filed against such decree but when application by N and Z moved for final decree, R protesting that he had already paid money to N and Z in terms of decree passed in previous suit-Held, R could recover money if paid by suing N and Z if so advised.

S. 52-Lis pendens-Partition suit-Suit contemplated in S. 52-Doctrine of lis pendens-Applicable to partition suit-Tenancy created during pendency of partition suit-Person inducted into property by one co-sharer without concurrence of others-Premises occupied by such person not falling to share of co-sharer inducting him into premises- Co-sharer allottee of portion comprising such premises, held, cannot be saddled with encumbrances created during litigation and entitled to get possession of premises free of all encumbrances.

Partition suit Some heirs not made parties but estate of deceased sufficiently represen!ed before Court-Estate not shown to have been prejudiced in any way-Non joinder immaterial.

Partition suit Partition suit-Court-fee-Allegation of joint possession in plaint-Plaintiff, on defendant's objection paying ad valorem court-fee on her share without, however, amending her plaint and deleting allegation of joint possession-Plaint remains a plaint under Art. 17 (vi), Sched. 11 Court Fees Act (111 of 1870)Court fee on plaint Rs. 10-Court fee on appeal Rs. 10.

Partition suit (a) Partition Suit-Whether shares declared by preliminary decree can be amended consequent upon death of one of the The shares declared by preliminary decree in partition suit can be varied consequent upon death of one of the heirs, and amendment of shares may be effected even after the preliminary decree had been appealed from by a dissatisfied party and the shares declared by the decree had been upheld by the appellate Court.