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Monday, April 27, 2015

Partition Suit - Procedure to be adopted - partition of each and every item is necessary ? - it is not necessary and incumbent that each item of the immovable properties in a suit for partition need be divided by metes and bounds in a final decree, if any of the sharers is desirous of retaining any of the properties without,possibly altering its physical integrity and instead their comparative valuation can be kept in view and the final decree can be modulated accordingly.-When the plaintiff/decree holder is interested in retaining the lands, instead of being forced to sell away his share of lands, the advocate-commissioner should have worked out the feasibility thereof while finalizing his report instead of dividing every piece of petition schedule properties into 24 bits and pieces, consequently to realize that such properties are incapable of being partitioned and cannot be conveniently delivered possession of.- The plaintiff/decree holder is directed to exercise his option in writing within thirty days by filing an appropriate memo before the Court of Senior Civil Judge, Kothapeta, disclosing the particulars of lands preferred to be retained by him. -2015 Telangana & A.P. msklawreports



A preliminary decree was passed in the suit on 06.01.1997
in the following terms:

        Item Nos.1 and 3 to 9 of plaint A schedule property was
ordered to be partitioned into 24 equal shares by metes and
bounds and allotted 7 such shares each to the plaintiff, 1st
defendant and the 2nd defendant. One such share each was
allotted to the defendant Nos.3, 4 and 5. Delivery of possession of
the respective shares was ordered after evicting the 1st defendant
therefrom. Past profits for a period of two years prior to the filing of
the suit and mesne profits from the date of suit till date of delivery
of possession with respect to the share allotted to him, of the
properties of plaint A schedule was also ordered. In all other
respects, the suit claims were rejected.

        In pursuance of the preliminary decree, the plaintiff filed
I.A.No.207 of 2000 for passing final decree. Final decree was
passed on 13.07.2000.
Thereafter, I.A.No.13 of 2001 was moved for
amendment of the final decree dated 13.07.2000 and the said I.A.
was allowed on 03.04.2002 determining the profits from
22.04.21983 to 13.07.2000.
I.A.No.12 of 2001 was moved under
Order 20 Rule 18 C.P.C. for appointment of an advocate-
commissioner for partition of item Nos.1 and 3 to 9 of the petition
schedule properties into 24 equal shares by metes and bounds and
for allotting 7 such shares to the petitioner/decree holder.
Along
with other related I.As, I.A.No.12 of 2001 was allowed on
08.03.2010, determining as to how much of land each of the
plaintiff/decree holder, the 1st defendant and 2nd defendant would
get towards their 7/24th share respectively, in all the items 1 and 3
to 9 of the petition schedule and in view of the practical difficulty
and the utility ordered their sale so that sale proceeds can be
distributed to all the sharers.
   Therefore, going by the good, bad and indifferent qualities of
all the lands and also taking into account their respective values,
the decree holder should be allowed an option to retain the
available lands in one village to the nearest valuation
corresponding to his overall 7/24 share value.
When the
plaintiff/decree holder is interested in retaining the lands, instead
of being forced to sell away his share of lands, the advocate-
commissioner should have worked out the feasibility thereof while
finalizing his report instead of dividing every piece of petition
schedule properties into 24 bits and pieces, consequently to realize
that such properties are incapable of being partitioned and cannot
be conveniently delivered possession of. For instance, it is
suggested that lands of certain extents which are ordered to be
partitioned are available in Avidi Village, Vanapalli village and
Pasupalli village.
Therefore, an option should have been allowed to
the plaintiff/decree holder to choose to retain the lands to the
nearest extent of value of his share and the lands so chosen by
him, if, exceeds the value of the total 7/24 share in all the items
put together, the plaintiff/decree holder should be directed to
deposit the differential amount to the credit of I.A.No.12 of 2001,
so that the same can be made over to the other sharers
appropriately.
Similarly, if the value of the lands proposed to be
retained by him is less than the overall value of 7/24 share of the
plaintiff/decree holder, in all the items so decreed, after the sale of
rest of the lands the differential amount may be made over to him
from the sale proceeds.
 It should be noted that a similar option for
retaining the lands representing as nearer as is possible to the
7/24 share from the rest of the lands shall be allowed to be
exercised by the 1st defendant and 2nd defendant.

        So far as the house properties are concerned, since the
plaintiff/decree holder has agreed for sale of the same, the sale
proceeds thereof would be distributed ratably amongst all the
sharers.

        The plaintiff/decree holder is directed to exercise his option
in writing within thirty days by filing an appropriate memo before
the Court of Senior Civil Judge, Kothapeta, disclosing the
particulars of lands preferred to be retained by him. Memo should
be filed by serving copies in advance on the opposite side.
Thereafter, further period of 30 days should be accorded to
defendant Nos.1 and 2, respondents herein for retention of lands
equivalent to their respective shares subject to the adjustment of
differential amount in the same manner as was indicated supra for
decree-holder, if they so desire. In the event, the choice exercised
by any of the sharers happened to be the same item of the petition
schedule, then, the tie, be resolved by drawing lots.. If necessary,
then the rest of the lands be put to sale.

         Accordingly, the order passed in I.A.No.12 of 2001 along
with other I.As, as confirmed in A.S.No.28 of 2010 stands modified
and only to this limited extent the second appeal stands allowed in
view of the legal principle that it is not necessary and incumbent
that each item of the immovable properties in a suit for partition
need be divided by metes and bounds in a final decree, if any of the
sharers is desirous of retaining any of the properties without,
possibly altering its physical integrity and instead their
comparative valuation can be kept in view and the final decree can
be modulated accordingly. No order as to costs.

        The miscellaneous petitions, if any pending in this appeal,
shall stand closed.--2015 Telangana & A.P. msklawreports

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