THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
C.C.C.A. No.35 of 2016
03-04-2017
Dr.P.Madan Mohan Rao. ... Appellant
1) Sri P.Surendranatha Rao 2) Smt. A.Bhavani Chandra 3) Smt. P.Raja Rajeshwari.
Respondents
(Respondent Nos.2 and 3 are not necessary parties vide Cause Title)
Counsel for Appellant:Sri Eranki Phani Kumar
Counsel for Respondent No.1: Sri T.Viswanadha Sastry
<Gist:
>Head Note:
? Cases referred:
1) AIR 1978 SC 845
2) AIR 1991 Ori 83
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
C.C.C.A.No.35 of 2016
JUDGMENT:
The challenge in this appeal, at the instance of the appellant/2nd
defendant, is the final decree proceedings dated 10.12.2015 in
I.A.No.970 of 2002 in O.S.No.1341 of 1997 on the file of I Senior Civil
Judge, City Civil Court, Hyderabad.
2) The parties in the appeal are referred as they were arrayed in the
trail Court.
3a) Initially, the 3rd respondent/plaintiff filed the suitO.S.No.1341
of 1997 against the 1st respondent/1st defendant, appellant/2nd defendant
and 3rd respondent/3rd defendant for partition of plaint schedule
mentioned double storied building situated in Adarshnagar, Hyderabad
and for allotment of 1/4th share therein. Plaintiff and defendants are
children of late P.Dhananjaya Rao who was the owner of plaint schedule
property. Pending suit, plaintiff and 3rd defendant compromised with the
defendants 1 and 2 and relinquished their respective 1/4th shares in
favour of defendants 1 and 2 by accepting monetary consideration.
Thus, defendants 1 and 2 became exclusive owners of the plaint
schedule property. While so, the 1st respondent/1st defendant filed
I.A.No.970 of 2002 for appointment of advocate commissioner for
ascertaining mesne profits and he also filed I.A.No.971 of 2002 for
passing final decree by dividing the suit property into two equal halves.
The trial Court appointed an advocate commissioner who upon securing
a report from a chartered engineer with regard to mode of bifurcation of
plaint schedule property, submitted his report on 07.03.2006 while
noting the objections and contentions submitted by either party. The
commissioner while agreeing with the Chartered Engineer opined that
the property could be vertically divided into two portions. In the process,
the advocate commissioner did not accede to the request of the
appellant/2nd defendant for horizontal division of property for the
reasons mentioned in his report.
b) While so, the trial Court in its order dated 22.11.2006 in
I.A.Nos.970 and 971 of 2002 accepted the commissioners report in toto
for dividing the schedule property into two equal halves by constructing
a vertical wall as suggested by commissioner in his plan. The trial Court
observed that both the parties were at liberty to construct their stair cases
in the portions allotted to them. It further observed that Northern side
portion was allotted to the share of appellant/2nd defendant and Southern
side portion to the 1st respondent/1st defendant as per Vastu Sastra, along
with the land in an extent of 300.2 square yards each.
c) Challenging the above order, the appellant/2nd defendant filed
C.R.P.No.2155 of 2007 impugning the order mainly on the ground that
no allotment was made in respect of terrace in 2nd floor. A learned single
Judge of this Court while observing that no final decree was yet passed
by the trial Court, disposed of the CRP with a direction that the trial
Court shall take into consideration the terrace, effect the partition of
terrace and also by taking into consideration all the allied matters.
d) Thereafter, the trial Court passed the impugned final decree dated
10.12.2015 and directed the office to engross the final decree and send
the same for registration.
Hence the instant appeal.
4) Heard arguments of Sri Eranki Phani Kumar, learned counsel for
appellant/2nd defendant and Sri T.Viswanadha Sastry, learned counsel
for 1st respondent/1st defendant. R2 and R3 are not necessary parties vide
cause title.
5) Severely fulminating the final decree, learned counsel for
appellant would, firstly argue that the idea of having a longitudinal
bifurcation of plaint schedule property would bring down its utility to a
naught more importantly, at the point of dining-cum-drawing hall
situated in 1st floor which is presently under the occupation of appellant
since such lopsided division will truncate the area of drawing-cum-
dining hall. Further, the division will render the staircase totally useless
and drive each party to re-build separate staircases where availability of
vacant place is very much scant. The vertical division poses further
problems in the matter of using drainage pipes and electrical connection
and practically, each party has to remodel the drainage pipes, water
connection and electrical circuits. Above all, the vertical bi-section
defiles the aesthetic beauty of the structure. Therefore, he would
emphasize, since the inception by way of objections, he opposed the
idea of vertical division of the building and conversely suggested
horizontal division of the building by keeping the dining-cum-drawing
hall in the 1st floor under his occupation as intact and also by allotting
the entire 1st floor to him. As an owelty, the appellant was prepared to
forgo the entire 2nd floor and the staircase to the 1st respondent/1st
defendant. He also suggested for having separate drainage stream for
each party in which case he expressed no objection for the sullage pipes
being run under his ground. Other little adjustments could be made
without much effort. His advices and objections were paid deaf ear by
the trial Court and Commissioner and they budged to the wish and
request of 1st defendant to make a vertical division. In effecting such
division the 1st respondent/1st defendant was allotted more constructed
area than the appellant/2nd defendant as evidently the 1st defendant was
allotted 3456 square feet of the constructed area consisting of ground, 1st
and 2nd floors, whereas the appellant was allotted only 2794 square feet
of the constructed area carved from cellar, ground and 1st floor. No
owelty was ordered to be paid by the 1st defendant in the final decree.
Thus, a lot of injustice was done to appellant/2nd defendant in that
regard. Though some adjustment was seemingly made in the order in
I.A.Nos.970 of 971 of 2002 dated 22.11.2006 to compensate the extent
of structural loss to the appellant, however, the finding in the said order
was not incorporated in the final decree, thereby, the injustice meted out
to the appellant remained unanswered. He, thus, requested to set aside
the final decree and submitted that the appellant is ready to either retain
the entire building by paying suitable amount to the share of 1st
defendant or for a vice versa adjustment.
6 a) Per contra, severely opposing the appeal, Sri T.Viswanatha
Sastry, learned counsel for 1st respondent/1st defendant would submit
that the final decree was a consent decree, inasmuch as the appellant did
never object for vertical division either before the trial Court or the
Commissioner. He would submit that while preferring the
C.R.P.No.2155 of 1997 his only objection was that the trial Court did
not make allotment in respect of terrace and he had not questioned the
vertical division approved by the trial Court. Therefore, he is now
debarred from raising that issue for the first time at this belated stage
after passing of final decree.
b) Nextly, learned counsel would argue, the difference in the
allotment of structural area was already well compensated by the trial
Court by exclusively allotting the entire constructed area in the cellar
and also garage situated in the Northern side portion to the share of
appellant/2nd defendant and therefore, he cannot plead injustice to him.
He thus prayed to dismiss the appeal.
7) In the light of above rival arguments, the point for determination
is:
Whether the final decree passed by the trial Court is factually
and legally sustainable?
8) POINT: Admittedly, the suit schedule property is a double storied
building bearing H.No.5-9-22/91 standing in plot No.80 in Adarshnagar,
Shapurwadi, Hyderabad admeasuring 600.41 square yards. The building
consists of cellar, 1st and 2nd floors with construction on the Southern
side and terrace on the Northern side in the 2nd floor. The building has
amenities like a garage, compound wall around, sump for collection of
public water, pump and over head tank etc. The cellar is below the
ground floor on the Northern side. Below the ground floor the sub-
garage comprises of rock sloping down to North. The drainage from the
building joins the manhole on the south west corner in the yard. The
sewerage disposal starts from the South West, skirting round the
building along the compound wall and drains off into the public
underground drain on the North West corner.
The above are vital features of the building which is subject
matter of partition.
9) For better appreciation of the arguments of either side, the mode
of partition effected by the trial Court in the final decree is extracted
below:
1) That the Commissioner report is accepted in TOTO by
dividing the schedule property into two halves by constructing a
vertical wall as suggested by the Commissioner in the plan
annexed in this report dated 07.03.2006.
2) That the P.Surender Nath/Petitioner/Defendant No.1 is
allotted southern side of the suit schedule property, admeasuring
3456 sq.ft constructed area of the building consisting of Ground,
First and Second Floors more particulars shown in the plan
(Shown in Green Colour) drawn by the Commissioner with all
absolute rights and title over the property and he is entitled to
enjoy the same as its absolute owner without interference by
anybody. The petitioner/defendant No.1 and respondent
No.2/defendant No.2 shall be entitled to equal area i.e, 300.20
sq.yds each out of 600.41 sq.yds.
3) Sri P.Madan Mohan Rao, respondent No.2/defendant
No.2 is allotted Northern side constructed portion of the suit
schedule property admeasuring 2794 sq.feet consisting of
Cellar, Ground and First Floor more particularly shown in the
plan drawn by the Commissioner with all rights and title over
the property allotted to him and he is entitled to enjoy the same
as its absolute owner without interference by anybody. The
petitioner/Defendant No.1 and Respondent No.2/defendant No.2
shall be entitled to equal area i.e, 300.20 sq.yds each out of
600.41 sq.yds.
4) The open terrace available on the First Floor that is on
the Northern side of the building of the suit property is allotted
to Dr.P.Madan Mohan Rao and he is entitled to enjoy all the
rights in and over the terrace portion as its absolute owner as
per Commissioner report dt.18.04.2008.
5) That both the parties have liberty to construct their
respective staircase on the portion allotted to them as per Order
I.A.No.970/2002, dated: 19-2-2009.
6) That the Commissioner Report dated: 07-03-2006 and
18-04-2008, along with plan shall form the part and parcel of
this Final Decree.
7) Both parties shall enjoy existing amenities such as
borewell water, drainage and municipal water connection.
8) That the Stamp Duty paid on 11-11-2000 of Rs.87,050/- may
be taken to the account in full towards the compromise decree in
partition suit issued on O.S.No.1341/97, and register the Final
Decree before the Registrar for Registrations, Hyderabad on
receipt of balance Stamp Duty and Registered the Final
Decree.
10) This Court after giving anxious consideration to the chartered
engineers report, commissioners report and final decree passed by the
trial Court, is of the firm view that vertical division made by the
engineer and approved by the commissioner and consequently by the
trial Court is quite eccentric and lopsided resulting in loss and injustice
to the appellant/ 2nd defendant. In the considered view of this Court, the
pliant schedule property is amenable for neither horizontal nor vertical
bifurcation.
11) Horizontal bi-section which was proposed by appellant, may at
best effectuate a paper division but not an effective partition by metes
and bounds. The reason is not far to seek. If the entire 1st floor is allotted
to the appellant/2nd defendant and 2nd floor to the 1st defendant and the
ground and cellar are either divided or kept joint, the resultant division
would be that one sharers property overlaps on the other causing severe
problems and litigations in the matter of future expansion, demolition
and alienation. Hence, horizontal severing is not a solution much-less a
partition by metes and bounds. Hence, the same has to be rejected.
12) The vertical bifurcation made by the Commissioner and approved
by the Court is also beset with many incongruities evident from the
reports of Chartered Engineer and Commissioner themselves.
a) Firstly, the report of the Engineer would show that when the
building was markedly divided vertically down by a wall, more or less
in the center, right through from the top to foundations, there arises a
difficulty for equal partition of dining-cum-drawing hall situated in the
first floor. The Engineer expressed that he tried to make a vertical
division in line with the central hall but that would foul the practical
bifurcation because of the dining-cum-drawing hall in the first floor
which he noted as Gordian knot (intricate knot) to be resolved. He
further noted that however much they pondered over the problem of
equal bifurcation satisfactorily, they found themselves in a predicament,
since the single dining-cum-drawing hall in the first floor was designed
for any one single family only. When vertical division was tried to be
made through the central line, the beams located at the center of the
dining-cum-drawing hall coinciding with the central wall to be
constructed. Therefore, to effect the vertical bifurcation, the Engineer
suggested that the partition wall has to be constructed asymmetrically
nearly 3ft. from the center line of the drawing-cum-dining hall. In which
event, the drawing-cum-dining hall will have to be truncated and the two
wings of the building will have to be suitably modified to the best
possible orientation. By this asymmetrical division, the stair case has
also to be cut unequally and thereby the stair case will become unuseful
for either of the two brothers. Thus one of the most intricate problem in
the vertical division is the cutting at the drawing-cum-dining hall in the
first floor. At the central point of the drawing-cum-dining hall, there
appears to be a beam and the said beam will coincide with the central
line of division causing severe problem in the matter of future utility,
expansion, demolition and alienation of the respective portions of either
party. To obviate that problem, it appears, the Engineer suggested for
moving the central line away from the central beam to an extent of 3ft at
the cost of truncating one wing of the drawing-cum-dining hall and also
the corresponding stair case which almost becomes useless.
b) The second incongruity is that due to the asymmetrical division,
the respondent/defendant No.1 gets 3556 sq.ft of constructed area of the
building consisting of ground, first and second floors whereas the
appellant/2nd defendant gets 2794 sq.ft consisting of Cellar, ground and
first floor and thereby the appellant falls short of 762 sq.ft of constructed
area. In the final decree proceedings, though the said difference was
noted, nothing was mentioned about the Owelty to be payable by the 1st
defendant. No doubt in the common order in I.A.No.970/2002 and
971/2002 in O.S.No.1341/1997 dated 22.11.2006 the difference was
mentioned as if 68.48 sq.ft and it was observed that since the garage
situated in the Northern side portion of the schedule property was
allotted to the share of the 2nd defendant, the difference in the
constructed area was thus compensated. It must be noted that as per
final decree proceedings, the difference is 762 sq.ft but not 68.48 sq.ft as
mentioned in the common order. Further, in the final decree it was not
specifically mentioned that the loss in the constructed area was
compensated by allotting garage to 2nd defendant. Above all, nowhere
the particulars of the garage and its area are mentioned to know whether
allotment of garage could be an effective substitution for the loss of
constructed area. This is another lacuna in the vertical bifurcation.
c) The third problem in vertical division is ofcourse, in respect of
usage of the underground drainage system. As of now, the underground
drainage for the Southern half is located towards Northwest corner i.e,
the sewerage line starts from the Southwest, skirts the building alround
the rear and joins the road lower down on the Northwest corner. If the
property were to be divided North South wise, the holder of South block
has to depend on the other owner to pass his sewerage line through the
Northern part to reach the municipal manhole situated in the Northwest
corner.
d) Therefore, for all these reasons, the vertical division is also not
feasible. However, the trial Court failed to consider all these aspects in a
pragmatic manner and simply carried away by the report of the
Commissioner and accepted it mechanically.
13) When symmetric division of a property is not possible without
truncating the utility of the portion allotted to one or more sharers and
without defiling structural ambiance and aesthetic beauty, necessarily
other mode of partition has to be adopted. In this regard it is beneficial
to extract Sec.2 of Partition Act, 1893:
Section 2: Power to court to order sale instead of division in
partition suits.Whenever in any suit for partition in which, if
instituted prior to the commencement of this Act, a decree for
partition might have been made, it appears to the court that, by
reason of the nature of the properly to which the suit relates, or
of the number of the shareholders therein, or of any other
special circumstance, a division of the property cannot
reasonably or conveniently be made, and that a sale of the
property and distribution of the proceeds would be more
beneficial for all the shareholders, the court may, if it thinks fit,
on the request of any of such shareholders interested
individually or collectively to the extent of one moiety or
upwards, direct a sale of the property and a distribution of the
proceeds.
Thus as per the above provision, it is clear that when it appears to
the Court that by reason of nature of the property to which the suit
relates, as in the present case, or of the number of shareholders therein,
or of any other special circumstance, a division of the property cannot
reasonably or conveniently be made, then the Court may direct the sale
of property and distribute the sale proceeds among the shareholders.
a) In similar circumstances, the Apex Court in the case of Badri
Narain Prasad Choudhary and others vs. Nil Ratan Sarkar , held as
follows:
Para 19: Thus considered, it is clear that the provisions of
Sections 2 and 3 of the Partition Act are not applicable to the
peculiar circumstances of the case. At the same time, there is a
concurrent finding of fact recorded by the courts below that the
suit property is so small, that it cannot be conveniently and
reasonably partitioned by metes and bounds, without destroying
its intrinsic worth. This finding is unassailable. In our opinion in
such a situation, the Court can devise such other feasible mode
for effecting partition as may appear to it to be just and
equitable in the circumstances of the case.
Para 20: The suit property, being incapable of division in
specie, there is no alternative but to resort to the process called
Owelty, according to which the rights and interests of the parties
in the property will be separated, only by allowing one of them
to retain the whole of the suit property on payment of just
compensation to the other. As rightly pointed out by K. Subba
Rao, C. J. (speaking for a Division Bench of Andhra High Court
in MANU/AP/0118/1957 : A.I.R. 1958 A P 647), in cases not
covered by Sections 2 and 3 of the Partition Act, the power of
the Court to partition property by any equitable method is not
affected by the said Act.
b) In Fakir Khan vs. Kuanr Khan and others case, the High Court
of Orissa came to a similar conclusion.
c) In view of the above facts and law, since the plaint schedule
property is not amenable for either vertical or horizontal division as
noted above, the only alternative is to follow a more pragmatic method.
14) In the considered view of this Court, the right of preemption must
at first be extended to the appellant and first defendant to retain the
property by paying suitable Owelty to other party and in their failure,
auction the property and distribute the sale proceeds between both the
brothers.
15) In the result, this Appeal is allowed and final decree in
O.S.No.1341 of 1997 is set aside with the following directions:
a) The appellant/2nd defendant and respondent/1st defendant shall,
within two(2) months from the date of this judgment, arrive at the
value of the plaint schedule property and intimate to the trial
Court as to which one among them is going to retain the property
by paying Owelty to the other.
b) Failing to follow the above direction, the trial Court shall
ascertain the market value of the plaint schedule property with the
assistance of a qualified Civil Engineer and after hearing both
parties, and thereafter, taking the value fixed by it as upset price,
conduct auction among both the brothers.
c) If the parties are not agreeable for auction interse, then the Court
shall after fixing the upset price as mentioned in direction No.2,
conduct a public auction of the plaint schedule property and
distribute the sale proceeds between the appellant/2nd defendant
and respondent/1st defendant after defraying the expenses for
holding auction and pass a final decree accordingly.
As a sequel, miscellaneous petitions pending, if any, shall stand
dismissed.
_________________________
U. DURGA PRASAD RAO, J
Date: 03.04.2017
C.C.C.A. No.35 of 2016
03-04-2017
Dr.P.Madan Mohan Rao. ... Appellant
1) Sri P.Surendranatha Rao 2) Smt. A.Bhavani Chandra 3) Smt. P.Raja Rajeshwari.
Respondents
(Respondent Nos.2 and 3 are not necessary parties vide Cause Title)
Counsel for Appellant:Sri Eranki Phani Kumar
Counsel for Respondent No.1: Sri T.Viswanadha Sastry
<Gist:
>Head Note:
? Cases referred:
1) AIR 1978 SC 845
2) AIR 1991 Ori 83
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
C.C.C.A.No.35 of 2016
JUDGMENT:
The challenge in this appeal, at the instance of the appellant/2nd
defendant, is the final decree proceedings dated 10.12.2015 in
I.A.No.970 of 2002 in O.S.No.1341 of 1997 on the file of I Senior Civil
Judge, City Civil Court, Hyderabad.
2) The parties in the appeal are referred as they were arrayed in the
trail Court.
3a) Initially, the 3rd respondent/plaintiff filed the suitO.S.No.1341
of 1997 against the 1st respondent/1st defendant, appellant/2nd defendant
and 3rd respondent/3rd defendant for partition of plaint schedule
mentioned double storied building situated in Adarshnagar, Hyderabad
and for allotment of 1/4th share therein. Plaintiff and defendants are
children of late P.Dhananjaya Rao who was the owner of plaint schedule
property. Pending suit, plaintiff and 3rd defendant compromised with the
defendants 1 and 2 and relinquished their respective 1/4th shares in
favour of defendants 1 and 2 by accepting monetary consideration.
Thus, defendants 1 and 2 became exclusive owners of the plaint
schedule property. While so, the 1st respondent/1st defendant filed
I.A.No.970 of 2002 for appointment of advocate commissioner for
ascertaining mesne profits and he also filed I.A.No.971 of 2002 for
passing final decree by dividing the suit property into two equal halves.
The trial Court appointed an advocate commissioner who upon securing
a report from a chartered engineer with regard to mode of bifurcation of
plaint schedule property, submitted his report on 07.03.2006 while
noting the objections and contentions submitted by either party. The
commissioner while agreeing with the Chartered Engineer opined that
the property could be vertically divided into two portions. In the process,
the advocate commissioner did not accede to the request of the
appellant/2nd defendant for horizontal division of property for the
reasons mentioned in his report.
b) While so, the trial Court in its order dated 22.11.2006 in
I.A.Nos.970 and 971 of 2002 accepted the commissioners report in toto
for dividing the schedule property into two equal halves by constructing
a vertical wall as suggested by commissioner in his plan. The trial Court
observed that both the parties were at liberty to construct their stair cases
in the portions allotted to them. It further observed that Northern side
portion was allotted to the share of appellant/2nd defendant and Southern
side portion to the 1st respondent/1st defendant as per Vastu Sastra, along
with the land in an extent of 300.2 square yards each.
c) Challenging the above order, the appellant/2nd defendant filed
C.R.P.No.2155 of 2007 impugning the order mainly on the ground that
no allotment was made in respect of terrace in 2nd floor. A learned single
Judge of this Court while observing that no final decree was yet passed
by the trial Court, disposed of the CRP with a direction that the trial
Court shall take into consideration the terrace, effect the partition of
terrace and also by taking into consideration all the allied matters.
d) Thereafter, the trial Court passed the impugned final decree dated
10.12.2015 and directed the office to engross the final decree and send
the same for registration.
Hence the instant appeal.
4) Heard arguments of Sri Eranki Phani Kumar, learned counsel for
appellant/2nd defendant and Sri T.Viswanadha Sastry, learned counsel
for 1st respondent/1st defendant. R2 and R3 are not necessary parties vide
cause title.
5) Severely fulminating the final decree, learned counsel for
appellant would, firstly argue that the idea of having a longitudinal
bifurcation of plaint schedule property would bring down its utility to a
naught more importantly, at the point of dining-cum-drawing hall
situated in 1st floor which is presently under the occupation of appellant
since such lopsided division will truncate the area of drawing-cum-
dining hall. Further, the division will render the staircase totally useless
and drive each party to re-build separate staircases where availability of
vacant place is very much scant. The vertical division poses further
problems in the matter of using drainage pipes and electrical connection
and practically, each party has to remodel the drainage pipes, water
connection and electrical circuits. Above all, the vertical bi-section
defiles the aesthetic beauty of the structure. Therefore, he would
emphasize, since the inception by way of objections, he opposed the
idea of vertical division of the building and conversely suggested
horizontal division of the building by keeping the dining-cum-drawing
hall in the 1st floor under his occupation as intact and also by allotting
the entire 1st floor to him. As an owelty, the appellant was prepared to
forgo the entire 2nd floor and the staircase to the 1st respondent/1st
defendant. He also suggested for having separate drainage stream for
each party in which case he expressed no objection for the sullage pipes
being run under his ground. Other little adjustments could be made
without much effort. His advices and objections were paid deaf ear by
the trial Court and Commissioner and they budged to the wish and
request of 1st defendant to make a vertical division. In effecting such
division the 1st respondent/1st defendant was allotted more constructed
area than the appellant/2nd defendant as evidently the 1st defendant was
allotted 3456 square feet of the constructed area consisting of ground, 1st
and 2nd floors, whereas the appellant was allotted only 2794 square feet
of the constructed area carved from cellar, ground and 1st floor. No
owelty was ordered to be paid by the 1st defendant in the final decree.
Thus, a lot of injustice was done to appellant/2nd defendant in that
regard. Though some adjustment was seemingly made in the order in
I.A.Nos.970 of 971 of 2002 dated 22.11.2006 to compensate the extent
of structural loss to the appellant, however, the finding in the said order
was not incorporated in the final decree, thereby, the injustice meted out
to the appellant remained unanswered. He, thus, requested to set aside
the final decree and submitted that the appellant is ready to either retain
the entire building by paying suitable amount to the share of 1st
defendant or for a vice versa adjustment.
6 a) Per contra, severely opposing the appeal, Sri T.Viswanatha
Sastry, learned counsel for 1st respondent/1st defendant would submit
that the final decree was a consent decree, inasmuch as the appellant did
never object for vertical division either before the trial Court or the
Commissioner. He would submit that while preferring the
C.R.P.No.2155 of 1997 his only objection was that the trial Court did
not make allotment in respect of terrace and he had not questioned the
vertical division approved by the trial Court. Therefore, he is now
debarred from raising that issue for the first time at this belated stage
after passing of final decree.
b) Nextly, learned counsel would argue, the difference in the
allotment of structural area was already well compensated by the trial
Court by exclusively allotting the entire constructed area in the cellar
and also garage situated in the Northern side portion to the share of
appellant/2nd defendant and therefore, he cannot plead injustice to him.
He thus prayed to dismiss the appeal.
7) In the light of above rival arguments, the point for determination
is:
Whether the final decree passed by the trial Court is factually
and legally sustainable?
8) POINT: Admittedly, the suit schedule property is a double storied
building bearing H.No.5-9-22/91 standing in plot No.80 in Adarshnagar,
Shapurwadi, Hyderabad admeasuring 600.41 square yards. The building
consists of cellar, 1st and 2nd floors with construction on the Southern
side and terrace on the Northern side in the 2nd floor. The building has
amenities like a garage, compound wall around, sump for collection of
public water, pump and over head tank etc. The cellar is below the
ground floor on the Northern side. Below the ground floor the sub-
garage comprises of rock sloping down to North. The drainage from the
building joins the manhole on the south west corner in the yard. The
sewerage disposal starts from the South West, skirting round the
building along the compound wall and drains off into the public
underground drain on the North West corner.
The above are vital features of the building which is subject
matter of partition.
9) For better appreciation of the arguments of either side, the mode
of partition effected by the trial Court in the final decree is extracted
below:
1) That the Commissioner report is accepted in TOTO by
dividing the schedule property into two halves by constructing a
vertical wall as suggested by the Commissioner in the plan
annexed in this report dated 07.03.2006.
2) That the P.Surender Nath/Petitioner/Defendant No.1 is
allotted southern side of the suit schedule property, admeasuring
3456 sq.ft constructed area of the building consisting of Ground,
First and Second Floors more particulars shown in the plan
(Shown in Green Colour) drawn by the Commissioner with all
absolute rights and title over the property and he is entitled to
enjoy the same as its absolute owner without interference by
anybody. The petitioner/defendant No.1 and respondent
No.2/defendant No.2 shall be entitled to equal area i.e, 300.20
sq.yds each out of 600.41 sq.yds.
3) Sri P.Madan Mohan Rao, respondent No.2/defendant
No.2 is allotted Northern side constructed portion of the suit
schedule property admeasuring 2794 sq.feet consisting of
Cellar, Ground and First Floor more particularly shown in the
plan drawn by the Commissioner with all rights and title over
the property allotted to him and he is entitled to enjoy the same
as its absolute owner without interference by anybody. The
petitioner/Defendant No.1 and Respondent No.2/defendant No.2
shall be entitled to equal area i.e, 300.20 sq.yds each out of
600.41 sq.yds.
4) The open terrace available on the First Floor that is on
the Northern side of the building of the suit property is allotted
to Dr.P.Madan Mohan Rao and he is entitled to enjoy all the
rights in and over the terrace portion as its absolute owner as
per Commissioner report dt.18.04.2008.
5) That both the parties have liberty to construct their
respective staircase on the portion allotted to them as per Order
I.A.No.970/2002, dated: 19-2-2009.
6) That the Commissioner Report dated: 07-03-2006 and
18-04-2008, along with plan shall form the part and parcel of
this Final Decree.
7) Both parties shall enjoy existing amenities such as
borewell water, drainage and municipal water connection.
8) That the Stamp Duty paid on 11-11-2000 of Rs.87,050/- may
be taken to the account in full towards the compromise decree in
partition suit issued on O.S.No.1341/97, and register the Final
Decree before the Registrar for Registrations, Hyderabad on
receipt of balance Stamp Duty and Registered the Final
Decree.
10) This Court after giving anxious consideration to the chartered
engineers report, commissioners report and final decree passed by the
trial Court, is of the firm view that vertical division made by the
engineer and approved by the commissioner and consequently by the
trial Court is quite eccentric and lopsided resulting in loss and injustice
to the appellant/ 2nd defendant. In the considered view of this Court, the
pliant schedule property is amenable for neither horizontal nor vertical
bifurcation.
11) Horizontal bi-section which was proposed by appellant, may at
best effectuate a paper division but not an effective partition by metes
and bounds. The reason is not far to seek. If the entire 1st floor is allotted
to the appellant/2nd defendant and 2nd floor to the 1st defendant and the
ground and cellar are either divided or kept joint, the resultant division
would be that one sharers property overlaps on the other causing severe
problems and litigations in the matter of future expansion, demolition
and alienation. Hence, horizontal severing is not a solution much-less a
partition by metes and bounds. Hence, the same has to be rejected.
12) The vertical bifurcation made by the Commissioner and approved
by the Court is also beset with many incongruities evident from the
reports of Chartered Engineer and Commissioner themselves.
a) Firstly, the report of the Engineer would show that when the
building was markedly divided vertically down by a wall, more or less
in the center, right through from the top to foundations, there arises a
difficulty for equal partition of dining-cum-drawing hall situated in the
first floor. The Engineer expressed that he tried to make a vertical
division in line with the central hall but that would foul the practical
bifurcation because of the dining-cum-drawing hall in the first floor
which he noted as Gordian knot (intricate knot) to be resolved. He
further noted that however much they pondered over the problem of
equal bifurcation satisfactorily, they found themselves in a predicament,
since the single dining-cum-drawing hall in the first floor was designed
for any one single family only. When vertical division was tried to be
made through the central line, the beams located at the center of the
dining-cum-drawing hall coinciding with the central wall to be
constructed. Therefore, to effect the vertical bifurcation, the Engineer
suggested that the partition wall has to be constructed asymmetrically
nearly 3ft. from the center line of the drawing-cum-dining hall. In which
event, the drawing-cum-dining hall will have to be truncated and the two
wings of the building will have to be suitably modified to the best
possible orientation. By this asymmetrical division, the stair case has
also to be cut unequally and thereby the stair case will become unuseful
for either of the two brothers. Thus one of the most intricate problem in
the vertical division is the cutting at the drawing-cum-dining hall in the
first floor. At the central point of the drawing-cum-dining hall, there
appears to be a beam and the said beam will coincide with the central
line of division causing severe problem in the matter of future utility,
expansion, demolition and alienation of the respective portions of either
party. To obviate that problem, it appears, the Engineer suggested for
moving the central line away from the central beam to an extent of 3ft at
the cost of truncating one wing of the drawing-cum-dining hall and also
the corresponding stair case which almost becomes useless.
b) The second incongruity is that due to the asymmetrical division,
the respondent/defendant No.1 gets 3556 sq.ft of constructed area of the
building consisting of ground, first and second floors whereas the
appellant/2nd defendant gets 2794 sq.ft consisting of Cellar, ground and
first floor and thereby the appellant falls short of 762 sq.ft of constructed
area. In the final decree proceedings, though the said difference was
noted, nothing was mentioned about the Owelty to be payable by the 1st
defendant. No doubt in the common order in I.A.No.970/2002 and
971/2002 in O.S.No.1341/1997 dated 22.11.2006 the difference was
mentioned as if 68.48 sq.ft and it was observed that since the garage
situated in the Northern side portion of the schedule property was
allotted to the share of the 2nd defendant, the difference in the
constructed area was thus compensated. It must be noted that as per
final decree proceedings, the difference is 762 sq.ft but not 68.48 sq.ft as
mentioned in the common order. Further, in the final decree it was not
specifically mentioned that the loss in the constructed area was
compensated by allotting garage to 2nd defendant. Above all, nowhere
the particulars of the garage and its area are mentioned to know whether
allotment of garage could be an effective substitution for the loss of
constructed area. This is another lacuna in the vertical bifurcation.
c) The third problem in vertical division is ofcourse, in respect of
usage of the underground drainage system. As of now, the underground
drainage for the Southern half is located towards Northwest corner i.e,
the sewerage line starts from the Southwest, skirts the building alround
the rear and joins the road lower down on the Northwest corner. If the
property were to be divided North South wise, the holder of South block
has to depend on the other owner to pass his sewerage line through the
Northern part to reach the municipal manhole situated in the Northwest
corner.
d) Therefore, for all these reasons, the vertical division is also not
feasible. However, the trial Court failed to consider all these aspects in a
pragmatic manner and simply carried away by the report of the
Commissioner and accepted it mechanically.
13) When symmetric division of a property is not possible without
truncating the utility of the portion allotted to one or more sharers and
without defiling structural ambiance and aesthetic beauty, necessarily
other mode of partition has to be adopted. In this regard it is beneficial
to extract Sec.2 of Partition Act, 1893:
Section 2: Power to court to order sale instead of division in
partition suits.Whenever in any suit for partition in which, if
instituted prior to the commencement of this Act, a decree for
partition might have been made, it appears to the court that, by
reason of the nature of the properly to which the suit relates, or
of the number of the shareholders therein, or of any other
special circumstance, a division of the property cannot
reasonably or conveniently be made, and that a sale of the
property and distribution of the proceeds would be more
beneficial for all the shareholders, the court may, if it thinks fit,
on the request of any of such shareholders interested
individually or collectively to the extent of one moiety or
upwards, direct a sale of the property and a distribution of the
proceeds.
Thus as per the above provision, it is clear that when it appears to
the Court that by reason of nature of the property to which the suit
relates, as in the present case, or of the number of shareholders therein,
or of any other special circumstance, a division of the property cannot
reasonably or conveniently be made, then the Court may direct the sale
of property and distribute the sale proceeds among the shareholders.
a) In similar circumstances, the Apex Court in the case of Badri
Narain Prasad Choudhary and others vs. Nil Ratan Sarkar , held as
follows:
Para 19: Thus considered, it is clear that the provisions of
Sections 2 and 3 of the Partition Act are not applicable to the
peculiar circumstances of the case. At the same time, there is a
concurrent finding of fact recorded by the courts below that the
suit property is so small, that it cannot be conveniently and
reasonably partitioned by metes and bounds, without destroying
its intrinsic worth. This finding is unassailable. In our opinion in
such a situation, the Court can devise such other feasible mode
for effecting partition as may appear to it to be just and
equitable in the circumstances of the case.
Para 20: The suit property, being incapable of division in
specie, there is no alternative but to resort to the process called
Owelty, according to which the rights and interests of the parties
in the property will be separated, only by allowing one of them
to retain the whole of the suit property on payment of just
compensation to the other. As rightly pointed out by K. Subba
Rao, C. J. (speaking for a Division Bench of Andhra High Court
in MANU/AP/0118/1957 : A.I.R. 1958 A P 647), in cases not
covered by Sections 2 and 3 of the Partition Act, the power of
the Court to partition property by any equitable method is not
affected by the said Act.
b) In Fakir Khan vs. Kuanr Khan and others case, the High Court
of Orissa came to a similar conclusion.
c) In view of the above facts and law, since the plaint schedule
property is not amenable for either vertical or horizontal division as
noted above, the only alternative is to follow a more pragmatic method.
14) In the considered view of this Court, the right of preemption must
at first be extended to the appellant and first defendant to retain the
property by paying suitable Owelty to other party and in their failure,
auction the property and distribute the sale proceeds between both the
brothers.
15) In the result, this Appeal is allowed and final decree in
O.S.No.1341 of 1997 is set aside with the following directions:
a) The appellant/2nd defendant and respondent/1st defendant shall,
within two(2) months from the date of this judgment, arrive at the
value of the plaint schedule property and intimate to the trial
Court as to which one among them is going to retain the property
by paying Owelty to the other.
b) Failing to follow the above direction, the trial Court shall
ascertain the market value of the plaint schedule property with the
assistance of a qualified Civil Engineer and after hearing both
parties, and thereafter, taking the value fixed by it as upset price,
conduct auction among both the brothers.
c) If the parties are not agreeable for auction interse, then the Court
shall after fixing the upset price as mentioned in direction No.2,
conduct a public auction of the plaint schedule property and
distribute the sale proceeds between the appellant/2nd defendant
and respondent/1st defendant after defraying the expenses for
holding auction and pass a final decree accordingly.
As a sequel, miscellaneous petitions pending, if any, shall stand
dismissed.
_________________________
U. DURGA PRASAD RAO, J
Date: 03.04.2017
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