Existence Of Building Is Not Defence To Determining Share Of Parties In Partition Suit- Karnataka HC Observes

A Karnataka High Court Bench of Justice Suraj Govindaraj has observed that the existence of building, whether permanent or not, is neither a defence nor would it be germane to determine the share of the parties in a suit for partition. 

In that context, it was said that, "The existence of building, whether permanent or not, is neither a defence nor would it be germane to determine the share of the parties in a suit for partition. At the most, it may be relevant for determining the valuation of the property at the time of a final decree proceedings being drawn up, which shall be so determined upon a commissioner being appointed."

Counsel Shivanand Patil appeared for the petitioner, while Counsel RS Sidhapukar appeared for the respondents.

In this case, a petition was filed seeking for partition and separate possession of the suit properties, and also for declaration of certain sale deeds mentioned in the relief column as illegal, null and void and not binding on the plaintiff.

On trial being completed and the matter being posted for arguments, the defendants filed an application under Order 26 Rule 9 of CPC for spot inspection of some of the properties in question to ascertain the construction which had been put up and the nature of construction.

The Trial Court allowed the application, which was impugned by the petitioner before the High Court. 

On hearing the arguments and perusing the papers, the Court noted that the existence of building, whether permanent or not, is neither a defence nor would it be germane to determine the share of the parties in a suit for partition. 

In light of the same, the Court took the view that the very filing of the application under Order 26 Rule 9 of CPC in a suit for partition was not required and was filed only to delay the proceedings. In furtherance, it was said that, "Such an application, if allowed and the commissioner report being challenged, would also require cross examination of the commissioner, which is not relevant or required at this stage of the suit. At this stage of the dispute resolution process, namely before the preliminary decree is drawn up it is only the shares of the parties which has to be determined, once it is determined that the properties are Joint Family properties or ancestral properties." 

In light of the same, the petition was allowed by the High Cout.

Cause Title: Abdul Kareem v. Hussainbee & Ors.

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