JANARDHAN PRABHU Vs. GANAPATHI PRABHU

JUDGEMENT

(1.) IN this writ petition the petitioner has prayed for a writ in the nature of certiorari to quash the order dated 22. 02. 2007 in FDP No. 15/2002 passed by the II Additional Civil Judge (Junior Division), karkala, in so far as it relates to rejection of LA. No. II filed by the petitioner under Section 3 of the Partition Act.

(2.) FIRST respondent filed O. S. No. 168/2001 against the petitioner, second respondent and others for partition and separate possession of his 1/10* share. In O. S. No. 168/2001, the defendant nos. 1, 3 to 5 and 7 to 9 relinquished their rights in the schedule property in favour of the petitioner under a registered relinquishment deed dated 10. 01. 2002. Subsequently a joint memo was filed in O. S. No. 168/2001. In terms of the joint memo the trial Court passed a preliminary decree declaring that the first and second respondents are entitled for 1/10th share each and petitioner is entitled for 8/10th share. Subsequently first respondent filed F. D. P. No. 15/2002 before the trial Court to draw the final decree. In this F. D. P. No. 15/2002 the trial Court appointed a Court Commissioner to find out the feasibility of division of schedule property in terms of preliminary decree. The court Commissioner submitted a report dated 28. 02. 2004 stating that it is not feasible to divide the schedule property in terms of the preliminary decree. Thereafter the first respondent got the schedule property valued by a PWD Engineer and he submitted a valuation report valuing the schedule property at Rs. 8. 00 lakhs. Subsequently the first respondent filed an application, I. A. No. I under Section 2 of the Partition Act seeking public auction of the schedule property and to distribute the sale proceeds amongst the sharers. Petitioner filed an application, I. A. No. II under Section 3 of the Partition Act to buy the shares of first and second respondents in terms of the valuation made by the PWD Engineer. The first respondent filed another application, i. A. No. III offering to purchase the schedule property at Rs. 15. 00 lakhs. Second respondent filed an application, I. A. No. IV to buy the shares of first respondent and petitioner at the rate valued by PWD engineer. The trial Court by a common order dismissed all the applications. Hence, this writ petition in so far as it relates to dismissal of I. A. No. II filed by the petitioner under Section 3 of the Partition Act.

(3.) HEARD arguments on both the side and perused the entire writ papers.