A.K.ABDUL NASEER Vs. ABDUL BARI

JUDGEMENT

(1.) The petitioners in W.P.No.51343/2014 being the legal representatives of the deceased original plaintiff by name Mr. A.K. Abdul Khalak in a civil suit, inter alia, for a decree of partition in O.S.No.153/1970 later renumbered as O.S.No. 6/1979 are invoking the writ jurisdiction of this Court for assailing the order dated 18.10.2014 made by the Principal Civil Judge and JMFC at Ramanagaram, whereby their application in IA No. 19 filed under Section 4 of the Partition Act, 1893 (hereafter referred to as 'Act' for short) has been rejected. After service of notice, the contesting respondents having entered appearance through their counsel resist the writ petition.

(2.) Learned counsel for the petitioners argues that the impugned order is liable to be invalidated since it contains the following errors apparent on its face: a) the court below proceeds on a wrong assumption of law that the provisions of Section 4 of the Act were not invokable belatedly, when no limitation is prescribed for such invocation; and b) the rulings cited from the side of the petitioners having not been duly adverted to at all, a manifesting justice is caused to them; so arguing, he seeks for allowing of the writ petition.

(3.) Both the learned counsel appearing for the contenting respondents who are buyers of the property pendente lite per contra contend that they do not have much objection to the petitioners' application filed under Section 4 of the Act being treated on merits at all; the only apprehension emanating from the track record of the petitioners is that, in the guise of pressing the said application, they may protract the FDP proceedings indefinitely so that fruits of the preliminary decree may not reach the hands of these respondents at all; these respondents do not have objection for the petitioners retaining the "dwelling house" situate in item No.1 of 'B' schedule property provided that they do not object to respondents taking the rest of said item of property which they have bought by four registered sale deeds and subject to petitioners paying the amount of valuation of the said "dwelling house".