IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

DATED THIS THE 7TH DAY OF MARCH 2014

BEFORE

THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA

RFA No.3031/2010 (PAR)

BETWEEN:

MOHAMMAD HASAN SHAIKH ALI SAHEB MIRZANI, S/O ALI SAHEB, AGED ABOUT 52 YEARS, R/O MIRZANI MANZIL, MUSLIM GALLI, KUMTA – 581343, U.K.DISTRICT.

… APPELLANT

(BY SRI.S.G.KADADAKATTI, ADV.)

AND:

• 1. ABDUL RAHIMAN SHAIKH ALI SAHEB MIRZANI, AGED ABOUT 67 YEARS, R/O HABIBA JAMAL MANZIL, P.M.H.ROAD, BHENDI BAZAR, ANKOLA – 581345, U.K.DISTRICDT.
• 2. MOHAMMED JAMAL SHAIKH ALI SAHEB MIRZANI, DECEASED BY HIS LRS
• 2A. MUMTAZ BEGUM W/O LATE MOHAMMED JAMAL, AGE: 65 YEARS, OCC: HOUSEWIFE,
• 2B. PARVEEN BANI D/O LATE MOHAMMED JAMAL, AGE: 43 YEARS, OCC: HOUSEWIFE,
• 2C. TASNEEN D/O LATE MOHAMMED JAMAL, AGE: 40 YEARS, OCC: HOUSEWIFE,
• 2D. NASRAT D/O LATE MOHAMMED JAMAL,

AGE: 35 YEARS, OCC: HOUSEWIFE,

ALL RESIDENTS OF #8-B/304, DAMODAR PARK, LBS MARG, GHATKOPAR (WEST), MUMBAI.

• 3. ABDUL KHADIR SHAIKH ALI SAHEB MIRZANI, AGED ABOUT 70 YEARS, R/O 105, HAJIRA, HEMANT NAGAR, P & T COLONY, KESHVAPUR, HUBLI-580 023.
• 4. SHAMSUZZAMAN SHAIKH ALI SAHEB MIRZANI, AGED ABOUT 58 YEARS, R/O AJMIR MANZIL, NEAR RESHMI SCHOOL, KESHWAPUR, HUBLI-580 023.
• 5. BIBI HASHAMAT ARA W/O O.K.SAYYED, AGED ABOUT 61 YEARS, NEAR NEHRU RICE MILL, MUSLIM GALLI, SIRSI-581401.
• 6. BIBI AMINA ABBAS, AGED ABOUT 60 YEARS, C/O A.A.MIRZANI, R/O 105, HAJIRA, HEMANT NAGAR, P & T COLONY, KESHVAPUR, HUBLI-580 023.
• 7. BIBI SADIQHA M.PATHAN, AGED ABOUT 48 YEARS, C/O M.H.PATHAN, BUNDER ROAD, HONAVAR-581344.

… RESPONDENTS

(BY SRI.R.P.HEGDE, ADV. FOR R1, SRI.SURESH N.KINI, ADV. FOR R2(A-D), R3, R4, R5 AND R7)

THIS APPEAL IS FILED UNDER SECTION 96 OF CPC AGAINST THE ORDER DATED 06.02.2010 PASSED IN FDP NO.4/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) KUMTA,

ALLOWING THE PETITION FILED UNDER SECTION 2 OF THE PARTITION ACT.

THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

Advocates appearing for the parties are present. Heard the arguments. Present appeal filed under Section 96 of CPC has arisen out of a considered order passed on 06.02.2010 on a memo filed under Section 3 of the Partition Act in FDP No.4/2006, which was pending on the file of the Court of Civil Judge (Sr.Dn.), Kumta. Appellant herein is the defendant No.1 in a case bearing FDP No.4/2006. The said final decree proceedings has arisen out of the judgment and decree passed in O.S.No.54/2002 dated 31.05.2005. The said judgment and decree passed by the trial Court regarding partition and separate possession has become final. Respondent No.1 herein Mr.Abdul Rahiman is the sole petitioner in FDP No.4/2006. Other respondents are respondent Nos.2 to 8 in the said final decree proceedings. Respondent No.2-Mohammed Jamal in the trial Court is dead

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and his legal representatives have been brought on record in this Court.

2. Preliminary decree has been drawn in the original suit to an extent of 7 guntas and 8 annas in Sy.No.38/1A and 5 guntas in Sy.No.39/2A and a residential house existing in item No.1 bearing Sy.No.38/1A measuring 5 guntas.The FDP Court had appointed a Commissioner to send a report as to whether the property could be conveniently divided. By virtue of order dated 01.12.2009, FDP Court had ordered for sale of the property and to divide the sale proceeds between the sharers as per their share. Later on a memo was filed under Section 3 of the Partition Act by the plaintiff – Abdul Rehaman stating that he was ready and willing to buy the share of other parties by the valuation fixed by the Court. Accordingly, advocate-Commissioner has submitted a report stating that the house cannot be conveniently divided. Advocate-Commissioner had visited the spot along with the taluka surveyor, inspected the spot and submitted a report. Later on, a report was solicited by the FDP Court from the

about the valuation of both the properties. It is mentioned that the market value of item No.1 is Rs.4,87,500/- and item No.2 measuring 8 annas is Rs.32,500/- in respect of the land and building value is Rs.6,15,144/-. The total value of both these items inclusive of residential building is shown as Rs.11,35,144/-. The said valuation is done on the basis of the guidance value.

3. Counsel for the applicant has submitted the said memo on 21.01.2010 indicating the total market value as Rs.11,35,144/- and is stated to have based the same on the guidance value fixed by the department of Stamps and Registration.

Insofar as the market value of the agricultural land is concerned guidance value will be the basis. Insofar as the residential building is concerned, the competent person would be the architect or engineer. Admittedly, the residential house is almost 35-40 years old and necessarily there will be depreciation. The engineer alone would be a competent person to assess the exact value of the building in

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question as on today. Therefore, it would be feasible if the FDP Court seeks a report from the jurisdictional PWD Engineer or a competent architect to submit a report regarding the valuation of the building, in which first respondent –defendant is stated to be living. Anyhow, the advocate – Sri. M. S. Bhagwath assisted by the taluka surveyor had already submitted a report and it appears it has not been objected to by anybody and therefore, it has been accepted for all practical purposes.

4. Insofar as valuation of building is concerned, as rightly pointed out by the learned Counsel for the appellant, a technical person like an Architect or Civil Engineer would be the competent person and the Court may appoint the Assistant Engineer or Assistant Executive Engineer of PWD or any known architect to visit the spot and submit a report about the dimension of the building, the condition of the building and the present value of the building. Hence the matter needs to be remitted to the FDP Court for the limited

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purpose of getting a report from a competent engineer in respect of the residential building only.

5. Since the matter has been in litigation for more than 9 years, it needs to be taken on priority by the learned Judge of the FDP Court. Hence the matter needs to be remitted as discussed above.

ORDER

The appeal is allowed. The matter is remitted to the Court of Senior Civil Judge, *Kumta, for the limited purpose of appointing an Assistant Engineer or Assistant Executive Engineer of jurisdictional PWD office or any competent architect who could inspect the residential house and submit a report about the dimension of the building, the present status of the building and the present value of the building. After receipt of the same, the FDP Court shall dispose of the matter as early as possible since the matter has been pending for more than 9 years in the FDP Court itself.

* Corrected vide Court order dated 03.04.2014

Anyhow, it is made clear that this Court would not like to come in the way of FDP Court in doing equities between the parties and fixing appropriate market value, which it deems fit and proper. The parties shall appear before the FDP Court on 25.04.2014 without fail and the parties shall cooperate with the Court for disposal of the matter at the earliest.

Sd/- JUDGE.

MBS/GAB/-

AVCJ: RFA No. 3031/2010 03.04.2014

ORDER ON 'BEING SPOKEN TO'

Heard the learned Counsel for the appellant.

In page No.7, in the operative portion of the judgment, instead of Kumta, Hanagal is typed by oversight.

In fact the appeal has arisen out of the judgment passed in FDP No.4/2006 passed by the learned Senior Civil Judge, Kumta. Hence the word 'Hanagal' stands deleted and in its place the word 'Kumta' to be inserted in the operative portion at page 7 of the judgment.

Sd/- JUDGE

gab/-