Case Note & Summary
The matter pertained to a regular second appeal before the High Court of Karnataka arising from final decree proceedings in a partition suit. The original plaintiff, B.S. Nagaraj (now represented by his legal representatives, respondent Nos.1 to 5), had filed suit O.S. No.93/2001 for partition and separate possession of his 1/3rd share in the suit schedule properties. The suit property consisted of vacant land purchased jointly by three individuals, including the plaintiff, Gurudatt, and Kumarswamy. During the pendency of the suit, the defendant No.10 (appellant herein) claimed to have acquired rights from Gurudatt through a sale deed and general power of attorney and had constructed commercial buildings on the property. The trial court, in its preliminary decree dated 16.03.2007, held that the plaintiff and defendants 5 to 9 (legal heirs of Gurudatt) were each entitled to a 1/3rd share, and that the sale deed executed by Gurudatt in favour of defendant No.10 was not binding on the plaintiff and defendants 5 to 9. The appellant’s appeal against the preliminary decree, R.F.A. No.1215/2007, was dismissed by the High Court on 12.12.2012. Thereafter, the legal representatives of the original plaintiff initiated final decree proceedings, F.D.P. No.82/2013, for division of the properties by metes and bounds. The trial court appointed a court commissioner who divided the property into three parts — A, B, and C. After considering objections, the trial court accepted the commissioner’s report and allotted part B to the plaintiff’s share, part C to defendants 5 to 9 collectively, and left part A with defendant No.10 (appellant). The appellant challenged this order before the first appellate court in R.A. No.68/2022, raising the contention that since he had constructed buildings on the property and the other co-sharers had not objected, he was entitled to the constructed portion, i.e., part C, under principles of equitable partition and waiver. He also filed an application under Order 41 Rule 27(b) CPC to adduce additional evidence. The first appellate court, after re-evaluating the material, dismissed both the application and the appeal, confirming the final decree order. Aggrieved, the appellant filed the present regular second appeal under Section 100 CPC. The appellant’s counsel argued that the courts below failed to consider the important fact that the constructions were made with the knowledge and without objection from the other co-sharers, and that the appellant had specifically raised this contention in his objection to the temporary injunction application during the suit. It was urged that the trial court wrongly held that such a plea was not raised earlier, and that equitable partition required allotting the constructed portion to the builder. He submitted that the appellant had spent substantial amounts on improvements and should be compensated or given that portion. Per contra, the respondents supported the impugned orders. The High Court examined the contentions and found that the appellant’s primary grievance about the constructions was not part of the preliminary decree and was not raised in the regular first appeal. The court observed that final decree proceedings are limited to the implementation of the preliminary decree and cannot be used to introduce new pleas that could have been taken earlier. The court noted that the preliminary decree had already determined the shares and the validity of the sale deed, and the commissioner’s report was only for effectuating that decree. The court also found that the first appellate court had correctly rejected the application for additional evidence. Consequently, the High Court held that no substantial question of law arose and dismissed the second appeal, thereby confirming the final decree order and the allotment of shares as per the commissioner’s report.
Headnote
A) Civil Procedure – Partition Suit – Final Decree Proceedings – Scope of – Code of Civil Procedure, 1908, Order 20 Rule 18 – The final decree in a partition suit must be in conformity with the preliminary decree; contentions not raised in the suit or the first appeal cannot be agitated for the first time in the final decree proceedings. The appellant’s plea that he was entitled to the portion of properties where he had made constructions, on the ground that other co-sharers did not object, was not raised at the trial or in the regular first appeal, and thus could not be considered at the final decree stage. Held, the courts below rightly rejected the appellant’s claim, as the final decree is meant to implement the preliminary decree and not to reopen decided matters (Paras 10-11). B) Civil Procedure – Partition – Commissioner’s Report – Acceptance of – Code of Civil Procedure, 1908, Order 26 Rules 13-14 – The trial court, after considering the commissioner’s report and objections, accepted the division of the suit properties into parts A, B, and C and made allotment as per the shares determined in the preliminary decree, which was affirmed by the first appellate court. The High Court found no error in the factual findings regarding the commissioner’s report and the allotment, as the same was based on the preliminary decree and material on record. Held, no interference was warranted under Section 100 CPC (Paras 5-7).
Issue of Consideration
Whether the appellant can claim the portion of property where he made constructions in the final decree proceedings, when such contention was not raised in the suit or in the regular first appeal.
Final Decision
The High Court dismissed the second appeal, affirming the orders of the lower courts. The court held that the appellant's contention regarding constructions could not be considered at the stage of final decree as it was not part of the preliminary decree and was not raised in the suit or the first appeal. The commissioner's report and allotment of shares were upheld.
Law Points
- Final decree proceedings must conform to preliminary decree
- new contentions cannot be raised at final decree stage
- commissioner’s report accepted on factual basis
