Case Note & Summary
A dispute arose between four brothers over a plot of land and a house constructed on part of it. The original plaintiff filed a suit for possession, claiming ownership and that the defendants were permissive occupants. The defendants counterclaimed for partition, asserting ancestral character of the property. The trial court decreed the suit and dismissed the counterclaim. In appeal, the district court reversed, declaring each party entitled to a 1/4th share, thus passing a preliminary decree for partition. The defendants, as decree holders, initiated execution proceedings seeking demolition of the plaintiff's house and separate possession of their shares. The executing court, without holding any inquiry, allowed the application, issued a possession warrant, and directed disconnection of electricity supply. The plaintiff (judgment debtor) filed applications objecting to the demolition and seeking an inquiry under Order XX Rule 18(2) of the Code of Civil Procedure, 1908, as well as under Order XXI. These were rejected. The High Court, exercising its writ jurisdiction under Articles 226 and 227 of the Constitution, examined whether the executing court could order demolition without an inquiry. The court noted that the decree was a preliminary decree and that the property, not being assessed to revenue, attracted the procedure under Order XX Rule 18(2), which permits the court to pass a preliminary decree and give further directions if partition cannot be conveniently made without further inquiry. As the property had a construction, an inquiry into the modalities of partition was essential. The High Court held that the executing court's approach was fundamentally flawed; it denied the plaintiff the opportunity to apply for sale of the property under Sections 2 and 3 of the Partition Act, 1893, instead of physical division. Consequently, the orders passed on Exhs. 24, 25, 46, and 65 in Regular Darkhast No. 2 of 2012 were quashed. The trial court was directed to hold an inquiry into the modalities of partition, including the convenience of physical division or sale, and to permit parties to apply under the Partition Act. The electricity supply was ordered to be reinstated forthwith.
Headnote
A) Civil Procedure – Execution of Preliminary Decree for Partition – Requirement of Inquiry under Order XX Rule 18(2) – Code of Civil Procedure, 1908, Order XX Rule 18(2) – Where the suit property is not assessed to revenue and one co-sharer has constructed a house on it, the court cannot simply direct physical division by demolition without further inquiry; it must determine whether partition can be conveniently made without inquiry, else direct an inquiry into modalities, including possible sale under Partition Act (Paras 5-6). B) Property Law – Partition Suit – Right to Apply for Sale under Partition Act – Partition Act, 1893, Sections 2, 3 – A shareholder interested to at least 50% may apply for sale of the property instead of physical division, and offer to buy out the other shareholders at valuation; denial of such right by ordering demolition deprives the party of statutory remedy (Para 5-7). Held that the executing court’s orders were flawed for not considering the necessity of inquiry and the applicability of the Partition Act (Paras 6-7).
Issue of Consideration
Whether the executing court can order demolition of a house constructed on a jointly owned property without holding an inquiry under Order XX Rule 18(2) of the Code of Civil Procedure
Final Decision
The High Court allowed the writ petition, quashing and setting aside the orders passed on Exhs. 24, 25, 46 and 65 in Regular Darkhast No.2/2012. It directed the Civil Judge Junior Division, Chamorshi to hold an inquiry into the modalities of partition, including the convenience of physical partition or separation. Parties were permitted to apply for sale under Section 2 of the Partition Act, 1893 and offer to buy the other's share at valuation under Section 3. The Maharashtra State Electricity Board was directed to forthwith reinstate electric supply to the petitioner's house.
Law Points
- Execution of preliminary decree for partition requires inquiry under Order XX Rule 18(2) CPC when property is constructed upon
- physical division cannot be ordered without determining modalities
- co-sharer has right to apply for sale under Sections 2 and 3 of Partition Act
- 1893 in lieu of demolition
