HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITION No.5682 OF 2007 ORDER: The revision is filed against the order in I.A.No.417 of 2003 in O.S.No.23 of 1979 on the file of the Senior Civil Judge at Mahaboobnagar, where-under the 5th defendant filed an application for passing of a final decree in pursuance of the compromise decree recorded by the High Court, the same was dismissed. 2. The suit O.S.No.23 of 1979 was filed for partition of the properties. When the matter was pending before the High Court, a compromise was recorded between the parties and the petitioner herein is one of the legal representatives of the 2nd defendant in the suit. He filed an application for partition of the properties as per the preliminary decree and for appointment of the Commissioner. But, the lower Court has dismissed the application holding that no Commissioner can be appointed to apportion the property beyond the compromise decree; the petitioner has to deposit the required stamps as directed by the High Court to have a final decree; and the petitioner cannot be granted final decree among his brothers; the petitioner has to file a suit for partition. Aggrieved by the said order, the present revision is filed. 3. The point that arises for consideration is whether the order of the lower Court is legal and sustainable? 4. POINT: It is not in dispute that in C.M.P.No.25276 of 1999 and A.S.No.2048 of 1987 on the files of this Court, a compromise decree has been passed and as per the compromise decree, the terms 2, 4 and 6 are as follows: “2. That the Respondents 4, 5, 21, 22 and 23 together shall be the joint owners of the house bearing Nos.3-6-30/1, 3-6-34 and half share in house No.3-6-32, fully marked with ‘orange colour’ in the plan annexed to this Memorandum of Compromise. 4. That the agricultural lands described as items-1 to 5 in plaint “A” schedule of property, situated at Boyapally village and item-7 of plaint “A” Schedule of property situated at Doddolonipalli village of Mahabubnagar Mandal & District shall be divided into two half shares and one half share shall be exclusively allotted to the share of Appellants 1, 2 and Respondnet No.3 and another half share shall be exclusively allotted to the share of Respondents 4, 5, 21, 22 and 23. In the event of sale of the said items-1 to 5 and 7 of “A” Schedule Properties of the plaint of Boyapally Village and Doddolonipalli Village, jointly by the said Parties, the sale proceeds shall be shared in equal half shares as stated above. 5. That the item No.6 of “A” Schedule of property and item No.9 of “B” Schedule of Property shall be the exclusive property of the Respondent No.5. 6. That the item No.8 of “B” Schedule of Property shall be the exclusive property and the Respondent Nos.4, 21, 22 and 23”. 6. Evidently, what was given to the respondents in the appeal including the petitioner is, who are respondents Nos.4, 5, 21 to 23, is only a joint share in the orange colour portion of the house property and also the half share jointly in item Nos.1 to 5 and 7 of plaint A- Schedule property. Item No.8 of the B-Schedule property was also given to respondents Nos.4, 21 to 23, whereas item No.6 was exclusively given to the petitioner herein. Evidently, as per the compromise decree, the property was given jointly to the petitioner along with respondents Nos.4, 21 to 23. So far as the clause No.4 is concerned, item Nos.1 to 5 and 7 of plaint A-schedule property is concerned each branch is given half share of the property. Therefore, unless there is a factual division of the property, there cannot be any enjoyment of the property. The observation of the lower Court that the Commissioner cannot be appointed without passing of the final decree may be correct. Therefore, in view of the above circumstances, the petitioner is directed to file an application for passing of the final decree and consequently for appointment of the Commissioner to divide the properties as per the compromise decree and all the objections raised by the respondents in the counter in I.A., shall be considered at the time of passing of the final decree. With the above observation, the Civil Revision Petition is disposed of. There shall be no order as to costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:19.10.2011 INL