MAHESH KUMAR Vs. NINGAMMA

JUDGEMENT

(1.) This petition by defendant No.6 in F.D.P.No.8/2017 on the file of the Additional Senior Civil Judge and JMFC, Hunsur is directed against the impugned order passed on I.A.No.1, whereby the said application filed by respondent No.1/plaintiff under Order XXVI Rule 13 of the Code of Civil Procedure seeking appointment of a Court Commissioner to effect partition of the suit schedule properties in terms of the preliminary decree dtd. 22/7/2017 passed in O.S.No.159/2007 was allowed by the Trial Court.

(2.) The material on record discloses that respondent No.1/plaintiff instituted a suit in O.S.No.159/2007 against the petitioner/defendant No.2 and other defendants in relation to immovable suit schedule properties. In the said suit, there were six items of immovable property. By the judgment and decree dtd. 22/7/2017, the Trial Court decreed the suit, declaring that the plaintiff was entitled to 1/10th share in the suit schedule properties and that defendant No.5/Ningamma was entitled to 1/2 share in the suit schedule properties.

(3.) Aggrieved by the said judgment and decree, the parties preferred an appeal in R.A.No.15/2017 and in the said appeal, the First Appellate Court modified the judgment and decree passed by the Trial Court in respect of item Nos.1 to 4 and came to the conclusion that the parties are not entitled to any share in item Nos.5 and 6 of the suit schedule properties. While arriving at the said finding, the First Appellate Court held as under: