Section 54 of central act is as under.
Partition of estate or separation of share - Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession shares, of such estates.
As per this section, the Partition by metes and bounds is to be effected by Collector (i.e. Deputy commissioner in Karnataka) or his gazetted subordinate. Therefore courts used to send preliminary decree to the Deputy commissioner to effect partition by metes and bounds. The Deputy commissioner used to send the preliminary decree to Tahasildar and get effected partition and Tahasildar on partition used to give possession also to the parties and report the same to the court.
That this procedure used to cause lot of delay and cases were pending for long time. Therefore Karnataka Government amended the provision by Act No.36 of 1998 and amended section 54 as under.
"54. Partition of estate or separation of share.- Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share of such an estate shall be made by the Court in accordance with the law if any, for the time being in force relating to the partition or the separate possession of shares, and if necessary on the report of a revenue officer, not below the rank of Tahsildar or such other person as the court may appoint as Commissioner in that behalf."
As per this provision the Court commissioners cannot effect partition and allot shares. But even after 20 years the old practice is going on and the courts also blindly following the outdated procedure and accepting the partition effected by the court commissioners without applying its minds.
The correct procedure is that the courts have to appoint separate court commissioners for lands and house to propose partition as per preliminary decree without showing any portion allotment to any party. After receipt of the commissioner reports courts have to post for hearing on the report and objection if any. After hearing the parties the courts have to allot certain portion to certain/different parties and also should also order that they are entitled for getting their name entered as per partition and to get possession of portion allotted to them by due course of law i.e. by filing execution petition. Then the final decree should be ordered to be passed if the stamp duty is paid.
There is no procedure or law regarding delivery of possession, we the advocates have devised a procedure and file execution petition and seek possession and courts are accepting the same. Actually in case partition there is no special provision and we have to resort for general provision of CPC section 35 and other provisions.
Regarding payment of stamp duty in Karnataka
On payment of the stamp duty, the court have to draw final decree.
In this regard Judgement of Karnataka High court SANGA REDDY VS. BASAMMA reported in ILR(KAR)-2004-0-3664 is relevant. It is held that the revenue officers or court commissioners have no power to allot shares. The courts have to effect partition and allot shares to the parties after receipt of report from revenue officials or court commissioners. Therefore the courts have to issue warrant to the court commissioners asking them to propose partition as per preliminary decree without allotting certain portion to certain parties.