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PARTITION SUIT


Partition of property ' means  a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees. The effect of such division by way of Partition is that the joint ownership is ended and the respective shares vest in them in severalty.

A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. `Separation of share' is at core of 'partition'. When all co-owners get separated, it is a partition. Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where three brothers owning a property divide it amongst themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other two brothers continue to remain joint, there is only a separation of the share of one brother. In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit properties, but also division of his share by metes and bounds.

Generally following issues are involved in partition. (a) the person seeking division has a share or interest in the suit property/properties or not ; (b) whether he is entitled to the relief of division and separate possession; and (c) how and the manner in which, the property/properties should be divided by metes and bounds? 

 In a suit is for partition or separation of a share, the court at the first instance decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as `decree' under Order 20 Rule 18(1) and termed as `preliminary decree' under Order 20 Rule 18(2) of the Code. The division thereafter by metes and bounds, considered to be an administrative act requiring the physical inspection, measurements, calculations and considering various permutations/ combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2).  Rule 18 of Order 20 of the Code of Civil Procedure (`Code' for short) deals with decrees in suits for partition or separate possession of a share therein.

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