Karnataka High Court Suggests Amendment Of CPC To Facilitate Quick Resolution Of Final Decree Proceedings In Partition Suits

While considering a dispute involving a partition suit, the Karnataka High Court has suggested the legislature to revisit and suitably amend the Civil Procedure Code to facilitate quick resolution of final decree proceedings.

Justice Ananth Ramanath Hegde said:

“When it comes to delay in court proceedings, partition suits occupy the top of the list, among various categories of litigation. The reasons are plenty. Probably one of the prime reasons is the procedure of passing the preliminary decree and final decree and providing two appeals up to the High Court (If the valuation of the plaintiff's share is less than Rs.10 lakhs), both on preliminary decree and final decree.”

The high court Supreme Court's judgment in Shub Karan Bubna v. Sita Saran Bubna, (2009) where it was said that the present system involving a proceeding for declaration of the right, a separate proceeding for quantification or ascertainment of relief, and another separate proceeding for enforcement of the decree to secure the relief, is outmoded and unsuited for present requirements. The Supreme Court had said that the CPC should provide for a continuous and seamless process from the stage of filing of suit to the stage of getting relief.

The high court said “Though the Apex Court has flagged the issue and felt that the law requires amendment, way back in 2009, the Parliament/Legislature is yet to amend the law.”

"It is high time to revisit the law and to suitably amend it to facilitate the quick resolution of final decree proceedings. One of the reasons why the final decree proceedings take a longer time is that the person in exclusive possession of the property, or a larger portion of the property for which there is a decree for partition and separate possession, gets unduly benefited by the delay and he does everything to delay the proceeding," the court said. 

The court thereafter pointed to broad points where there is a scope for an appropriate legislative framework: 

(a) Further listing of the suit, after the judgment providing a preliminary decree, and to proceed further to draw a Final Decree with a new nomenclature and number.

(b) Procedure relating to pleadings, if any, required in the Final Decree Proceeding where parties seek mesne profits or any other relief relating to the division and allotment of shares

(c) To expressly enable the Court, as an interim measure, in the Final Decree Proceeding, to direct the party in exclusive possession or a larger portion of the property, to deposit before the Court the preliminary decree holder's share in the profits, if any, derived from the income-yielding property.

(d) To deliver the exclusive possession of the property allotted to respective shares/ to recover the mesne profits in the Final Decree Proceeding itself, instead of one more execution proceeding based on the Final Decree.

(e) To provide for a direction to the jurisdictional Tahasildar, Local Body or other authorities to change the entries in the property records pursuant to the Final Decree as provided in Section 132(3) of Karnataka Land Revenue Act, 1964.

(f) To restrict the scope of First Appeal and Regular Second Appeal or to abolish the Appeal against the Final Decree, where there is no claim relating to mense profits, by substituting the right of appeal with right of revision by properly defining the scope of the revision. 

(g) In a case where there are only two sharers, and the properties are to be divided into two parts, instead of proceeding with conventional division by appointing surveyor, in the first place, either of the party be asked to propose the division and other party be given the first option to choose the property as per the division proposed by first party referred to above. In such a scenario, the party proposing to divide the property will have to be allotted the property not chosen by the other party.

The bench clarified that “The Court is not legislating any law. The Court has no such power. The endeavor is only to invite the attention of the stakeholders to resolve the issue, which unfortunately has been lingering or haunting (rather) since the Code of Civil Procedure, 1908 or may be much earlier.”

The suggestion was made while partly allowing an appeal by Veerabhadrappa and others questioning a trial court order which granted the final decree for only 7 acres 12 guntas and not 10 acres 22 guntas as per the preliminary decree.

The parties agreed on the division of the properties in a particular manner in respect of the properties bearing Sy (survey) .Nos.113, 154 and 164 of Gondichatnahalli Village, Shivamogga Taluk. However, in respect of Sy.No.25, parties sought a direction from the Final Decree Court to measure the properties and to divide the properties into two equal shares.

A Court Commissioner (Surveyor) was appointed. The Surveyor divided 7 acres 12 guntas in Sy.No.25 into three parts. However, no division was made in respect of "entire 10 acres 22 guntas, for which there was a decree for partition". 

Out of three parts, two divisions were allotted to one branch and one to another branch. The extent of lands allotted to each branch is same. Both the trial court and appellate court granted a decree for only 7 acres 12 guntas and not 10 acres 22 guntas as per the preliminary decree. Against this an appeal was filed. 

The high court said, “The Surveyor has partitioned only 7 acres and 12 guntas. The Surveyor cannot allot a lesser share than what is awarded in the decree on the premise that he is unable to ascertain who is in possession of the property. It is nobody's case that a third party is in possession of the property. Moreover the Surveyor does not say that the extent of 10 acres 22 guntas is not available the the suit property.”

Then it held “The Trial Court and First Appellate Court have not properly appreciated the evidence of the Court Commissioner in the cross-examination. Hence, the impugned judgments and decrees insofar as Sy.No.25 are set aside. The matter is remitted to the Trial Court to effect a fresh division of Sy.No.25 into two parts in an extent of 10 acres 22 guntas, and to allot half share jointly to the appellants, and half share jointly to the respondents. If the total extent is less than 10 acres 22 guntas, the division shall take place in the available extent.”

Appearance: Advocate P N Harish for Appellants.

Advocate G.C Shanmukha for FOR R1(A AND F).

Advocate M.V Maheswarappa FOR R1 (C AND G)

Advocate Umesh Moolimanni for R1(B, D AND E)

Citation No: 2025 LiveLaw (Kar) 335

Case Title: Veerabhadrapa & Others AND Channappa Gowda D & Others

Case No: REGULAR SECOND APPEAL NO. 807 OF 2014

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