K SHAM BHAT Vs. K SITARAMA BHAT

JUDGEMENT

(1.) IN this writ petition, the petitioner, who was the plaintiff in the suit in O.S.No. 134/1975 (originally O.S.No.55/1966), has challenged the order dated 16.01.2010 (Annexure-F) passed by the Karnataka Appellate Tribunal, Bangalore, wherein it has dismissed Appeal No.453 of 1988 filed by the petitioner against the order dated 05.07.1988 passed by the Deputy Commissioner, Dakshina Kannada.

(2.) FACTS in brief: The petitioner had filed the aforesaid suit for partition. The preliminary decree in the said suit was passed on 12.04.1971. Pursuant thereto, a final decree proceeding was filed in FDP.No. 11 / 1978, which is still pending. In the final decree proceeding, the Court sent the case papers to the Deputy Commissioner along with the preliminary decree to effect partition in terms thereof. Thereafter, the Deputy Commissioner sent the papers to the Assistant Director of Land Records, Puttur, to submit his report to effect partition in terms of the preliminary decree. The Assistant Director of Land Records submitted his report to the Deputy Commissioner for his approval. The Deputy Commissioner did not accept the report in view of the objections raised by defendant Nos.2 & 6. The Deputy Commissioner passed the following order on 05.07.1988:

(3.) THE question that falls for determination in this writ petition is, whether the partition in this case shall be made by the Court as per Section 54 of the CPC as amended (substituted) by Karnataka Act No.36 of 1998, which amendment was given effect to from 1st February 2001 or whether the partition shall be made by the Deputy Commissioner or any of his gazetted subordinates deputed by him in this behalf as per Section 54 of the CPC as it stood before the amendment?