Judgment :- 1. The plaintiff in O.S. No. 152 of 1974 on the file of the Sub-Court, Dindigul, is the appellant in the above Second Appeal. The plaintiff filed a suit on the basis of certain sale deeds under which she claims to have purchased a portion of the joint family property. There is no dispute about the fact that the said suit came to be compromised at the stage of trial and a preliminary decree came to be passed as follows: “1. That the plaintiff is hereby entitled for partition and separate possession of the half share in the suit property: and 2. That the plaintiff is at liberty to file a petition for appointment of Commissioner to divide the half share by metes and bounds at the time of passing of final decree.” Thereupon, the appellant filed I.A. No. 57 of 1979 under O. 26, R. 13 (1), C.P.C. for the passing of a final decree and for effecting division of the suit property as per the terms of the preliminary decree. An advocate-Commissioner was appointed and he submitted his report with a plan regarding the mode of division to be effected into two halves of the suit property and the reasons for the same. The appellant filed an objection to the mode of division suggested by the Commissioner, contending that after the purchase of the property by the plaintiff/appellant, she had removed the thatched house and a pucca building was consstructed by her on the southern portion and as far as the Respondents are concerned they are residing in an outstation place and are not in adual physical enjoyment of the property and therefore, as per the panchayat decision, the house that is situated on the southern portion of the vacant site abutting, should be allotted to the share of the plaintiff/petitioner. The contention on behalf of the appellant in the court below was that on such understanding the suit was compromised. 2. The learned trial judge rejected the objections of the appellant/plaintiff, holding that the parties are bound by the terms of the preliminary decree extracted supra, that each party under the terms is entitled to half share and therefore the plaintiff cannot urge that the built-up portion on the southern side should be allotted to her and that such a move would amount to going against and behind the terms of the preliminary decree. The learned trial judge felt that doing so will result in unequal division, as observed by the learned commissioner, consequently, the manner of division suggested by the Commissioner was accepted and on a subsequent day the matter was called for casting of lots in open court and in the said lot cast, the portion ABCGRIMA fell to the share of the plaintiff/appellant and a final decree came to be passed accordingly directing that the report and the plan of the Commissioner shall form part of the decree. 3. Aggrieved, the plaintiff pursued the matter before the District Court, Madurai (North), Dindigul. The learned first appellate judge also concurred with the judgment and decree passed by the learned trial judge, holding that the reasons assigned by the Commissioner in respect of the mode of division recommended by him show that the division, as desired by the plaintiff, cannot be accepted to be a practicable one and the division ordered is the best possible one that could be thought of. Not satisfied with the judgment of the first appellate court, the above Second Appeal has been filed. 4. At the time of the admission of the Second Appeal, it was considered that the failure on the part of the courts below to allot the southern moiety to the appellant who is a third party purchaser and who had made improvements to the southern moiety by spending considerable amount, would constitute a serious and patent error of law vitiating the judgments and decrees of the courts below. It was also further considered that the issue as to whether the mode of division adopted by the courts below was opposed to the fundamental principles governing partition and that the third-party purchaser should be allotted such portion purchased by him, or her and improved at his or her own expenses on equitable grounds, arise for consideration in the appeal. 5. Mr. 5. Mr. Jinasenan, learned counsel appearing for the appellant, while reiterating the above points formulated, contended that the drawback suggested in dividing the property in a different suggested in dividing the property in a different manner, as claimed by the plaintiff viz., that it would cause inconvenience to the person who may be allotted the southern portion, for want of an effective approach to the public road, overlooks the fact that the plaintiff/appellant was prepared to take the southern portion even with such drawbacks, if any, having regard to the substantial investments made and the said reason assigned for rejecting the claim of the plaintiff is not warranted in law. It was also contended for the appellant by the learned counsel that the courts below have miserably failed to consider and give due weight to the claim of substantial improvements made by the plaintiff on the southern portion of the property, which was purchased and which was in her possession by putting up pucca permanent structure, apart from the grave error committed in assigning the very reason of the existence of permanent structures itself as a ground for dividing the property in such a manner divide the structures as to also equally, without really going into the ownership of the structure, the value thereof or working out or adjusting the equity between the parties. The learned counsel relied upon the decisions reported in R. Venkatesa Konar . v. Ryhena Bi (AIR 1990 Madras 196 = 1989-2-L.W. 194 and Tikam Chand v. Rahim Khan ( AIR 1971 M.P. 23 ) in support of the said claim. 6. Per contra, Mr. Gopalaratnam, learned counsel appearing for the respondents contended that in as much as the preliminary decree passed as a result of a mere of compromise did not provide any specific terms for allotting the southern portion to the plaintiff, the claim for southern portion made by the plaintiff/appellant, cannot be sustained and in the teeth of the report of the Commissioner containing reasons for not dividing the property as prayed for by the plaintiff and the justification made out by the Commissioner in his report for effecting the division in the manner it has been done by the Commissioner, which had the acceptance concurrently of both the courts below, there is no scope for interference in this Second Appeal. It was also contended by the learned counsel relying upon the decision reported in Venkata Reddy v. Pethi Reddy. ( AIR 1963 S.C. 992 ) that in the absence of any appeal by an aggrieved party against the preliminary decree, no claim in contravention of the terms of the preliminary decree, could be made at the time of final decree proceedings and therefore, the appellant is not entitled to claim the relief sought for by her in these proceedings. Argued the learned counsel for the respondent further that merely because a co-owner has chosen to effect certain improvements to a property, there is no compulsion that such portion of the property in which the co-owner or the purchaser from the co-owner has effected improvements, must be allotted to his share only. 7. I have carefully considered the submissions of the learned counsel appearing on either side. In my view, both the courts below have committed grave and patent errors, which would undermine the propriety as well as the legality of the division effected in the final decree proceedings. The first error, in my view, is the assumption and premise on which the courts below proceeded, that in the absence of a specific provision in the compromise memo culminating in the preliminary decree, it is not possible for the courts to consider the request of the plaintiff for the allotment of the southern portion. The preliminary decree no doubt only relates to the compromise made in the respect of the shares, namely, whether the plaintiff was entitled to a larger extent as claimed, and no doubt what was compromised before the stage of passing of the preliminary decree was only the proportionate share in which the property has to be divided without any further commitments as to the mode, but it could not be overlooked that the mode of division was relegated and reserved, without any restriction about such division of the property into two equal halves, to the final decree proceedings stage. Therefore, it was wrong on the part of both the courts below to have assumed, in the absence of any stipulation in the preliminary decree itself, or any compromise arrived at, for allotment of the southern portion to the plaintiffs share, such a request cannot be even considered independently on merits or countenanced if justified. Therefore, it was wrong on the part of both the courts below to have assumed, in the absence of any stipulation in the preliminary decree itself, or any compromise arrived at, for allotment of the southern portion to the plaintiffs share, such a request cannot be even considered independently on merits or countenanced if justified. The other patent error in the judgment of both the court below as also the report of the Commissioner, on which the entire judgment of the courts below rested, was the conspicuous omission to consider the claim of improvements and the ownership of pucca superstrctures said to have been put up by the plaintiff. Not only this omission to advert and adjudicate upon this claim vitiates the judgments of the courts below, but surprisingly the Commissioners report as well as the courts below proceeded to justify the method of division to distribute the pucca constructions standing on the site, to both parties equally. There is no claim by the respondents during the proceedings before the courts below that any of the pucca structures were put up on the southern side by the respondents or their predecessor-in interest and that such constructions are all common properties. No doubt, the land, if belonged to both persons in common, the rights of the other sharer of the land cannot be defeated by one share putting up a construction to the others detriment. But such an approach is permisible or impediment could be placed on the person claiming to have put up such constructions if only there is no possibility of adjusting equities between the parties and the property to be divided and the entire extent on which the so-called constructions have been put up are one and the same and there was therefore no scope for any equitable division. A perusal of the materials available on record, including the Commissioners report, would go to show that division by adjusting equities and rights of parties can be made in this case, if only the fundamental objection regarding the ownership of pucca constructions by spending substantial amounts has been really kept in view, before passing the final decree under challenge in this case. In this context the decision of a Division Bench of the Madhya Pradesh High Court reported in Tikam Chand v. Rahim Khan (AIR 1975 M.P. 23), particularly the opinion expressed by the Division Bench in paragraph 14 of the judgment, may be usefully referred to. It reads as follows:— “In our opinion, the contention of the appellant has merit and must be given effect to. On the death of a Mahomedan his heirs become entitled to their specific shares in the estate of the deceased as tenants-in-common. What they can validly insist upon is that they must be given property equal to their share in the property left by the deceased but they cannot insist that each single property must be divided into so many as represent the shares of the heirs. It is true that every co-owner has a legal right to have the joint properties partitioned. Mere reluctance or some inconvenience of other co-owners is not by itself sufficient to take away the said right. Different considerations, however, apply where a partition is inconvenient or is destructive of the intrinsic value of the property. In such cases courts avoid actual partition as far as practicable and adopt a procedure more suitable in the circumstances of the case. The court has the jurisdiction to allot such a property exclusively to one co-owner with suitable directions for payment of owelty money to the others. We feel that there is no justification to deprive the plaintiff, who is a purchaser for value, from having an equity in his favour to stand in the shoes of his alienors to the extent of claiming a general partition of all the properties so that the equities may be worked out by allotting to shares of his vendors the properties which have been alienated by them if such a course did not work injustice to the ri ght of the other co-owners.” I am in entire agreement with the principles profounded therein, besides holding that those principles are not only apposite, but deserve and require to be applied to the case on hand. Courts may at a partition allot an alienee from a co-parcener the properties purchased or the portion on which improvements are made if it could be conveniently done. This obligation as well as the powers of the court have been completely lost sight by both the courts below. 8. Courts may at a partition allot an alienee from a co-parcener the properties purchased or the portion on which improvements are made if it could be conveniently done. This obligation as well as the powers of the court have been completely lost sight by both the courts below. 8. In my view, the objections taken by the learned counsel for the respondents to the points urged on behalf of the appellant, are not well merited. Further, the principles laid down in Venkata Reddy v. Pethi Reddy ( AIR 1963 S.C. 992 ) cannot be said to be violated by countenancing the claim of the plaintiff in this case. The request now made at the stage of final decree proceedings by the plaintiff for allotment of the, southern portion of the property by adjusting equities and rights of parties, cannot be said to be one in contravention of the terms of the preliminary decree passed, if only such request or stand taken at the final decree proceedings, is found to be in derogation of the terms of the preliminary decree. This is only the principle enunciated in the Supreme Court decision, will come into play. So far as the case on hand is concerned, as noticed earlier, the consensus arrived at which culminated in the preliminary decree, was to divide the property into two equal halves and that the question of adjusting equities and actual allotment will have to be gone into only at the final decree stage of the proceedings and an objective and independent consideration in this regard by the court is not preclosed. Of course, if there was an agreement or consensus expressed even in respect of the allotment of a particular portion also it would have avoided such serious differences between the parties, at the later stage. Also absence or omission of any consensus at the preliminary decree stage with reference to the allotment of any particular portion does not militate against the court considering the claim in an equitable and objective manner as is expected of it by adjusting the rights of parties also. The facts of the case, in my view, strongly support a case for adjustment of equities and rights of parties. Indisputably, the respondents sharers are not residents in that place. The facts of the case, in my view, strongly support a case for adjustment of equities and rights of parties. Indisputably, the respondents sharers are not residents in that place. The plaintiff is a third-party purchaser from a co-sharer and she has, pursuant to her purchase, entered into a particular portion of the property and has effected substantial improvements. While the third party purchaser, who has been inducted into a particular portion of the property has been making such improvements by spending substantially, the other sharer was just a mere onlooker without any protest and in such cases, if the court is not to consider the question of adjusting the equities and rights of parties, it would amount to the courts closing their eyes to realities, of the situation and allowing perpetuation of miscarriage of justice. In view of the above, I am of the opinion that the judgments and decrees of both the courts below in mechaniclly accepting the proposals and recommendations of the Advocate Commissioner to effect a division in a most impracticable manner too, as could be seen from the plan submitted, are liable to be set aside. As noticed earlier, when the plaintiff who desires to have the southern portion, is prepared to take it with any drawbacks attached to it for want of proper access to a public road, That reason cannot be assigned as one to reject the claim of the plaintiff. 9. In view of the above, this Second Appeal is allowed, the judgments and decrees of the courts below are set aside and the subject matter is remanded to the file of the learned trial judge, who shall restore the proceedings to his file and consider the matter afresh, if need be, by appointing a fresh Commissioner and also giving an opportunity to both sides to lead oral and documentary evidence to substantiate their respective claims and pass a fresh final decree taking into account the observations, contained in this judgment, with reference to the general principles. Since this is a long pending matter, the learned trial judge shall ensure disposal of the proceedings finally within six months from this date. No costs.