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2000 DIGILAW 623 (KER)

Sosamma Yohannan v. Elias

2000-11-24

M.R.HARIHARAN NAIR

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ORDER M.R. Hariharan Nair, J. 1. Revision Petitioners are defendants 24 to 26 in O.S.No.340/92 of the Sub Court, Muvattupuzha, which is now in the final decree stage. The Commissioner deputed in the case made inspection of the property and filed report demarcating the share due to the plaintiffs. The question of accepting the report was then considered by the court. The revision petitioners contended that the value of the building has been fixed incorrectly and also that the share due to them has not been separately shown in the report. 2. The court negatived the said contentions and it is that order that is under challenge. 3. As per the preliminary decree passed in the case the plaintiffs are entitled to get one-half share and the other half is due to the defendants 1 to 26. The report is filed accordingly. There are two items in the decree schedule property, the 1st of which is land having an extent of 1.25 acres and the other being a 3 storied building situated in a plot of 5 cents. With regard to the valuation of item 1 there is no serious dispute raised; but it is contended that the building has been grossly undervalued. It is stated that the building is actually worth Rs. 60,00,000/-; but valued only at about Rs. 6,00,000/-. When such a claim was made, the learned counsel for the plaintiffs submitted before court that if the defendants are serious about this contention, the plaintiffs will have no objection in the building being allotted to the defendants at the valuation claimed by them. The suggestion, however, was not acceptable to the present revision petitioners, or to the other defendants who only reiterated that the valuation made by the Commissioner is without basis. 4. A perusal of the report of the Commissioner shows that the building in question is situated in a plot of 4.571 cents facing the T.B.Road, Muvattupuzha and that it has 3 shop-rooms facing the east and all these rooms are in the possession of tenants on rent of Rs. 300/- per mensem. The southernmost room, according to the tenants, was on rent of Rs. 245/- per mensem only; but the Commisioner, nevertheless, proceeded to fix the rent for that room also at Rs. 300/- per mensem for the purpose of valuation as all the 3 rooms were of same size and with same importance. 300/- per mensem. The southernmost room, according to the tenants, was on rent of Rs. 245/- per mensem only; but the Commisioner, nevertheless, proceeded to fix the rent for that room also at Rs. 300/- per mensem for the purpose of valuation as all the 3 rooms were of same size and with same importance. There were three other rooms in the same building, which are facing the M.C.Road. Two of these were outstanding on lease at the rate of Rs. 450/-per mensem and the middle room excluding the adjoining vacant space was on lease for Rs. 350/- per mensem. The Commissioner fixed the possible rent for that vacant portion at Rs. 650/per mensem and it was thus that he fixed the total rent due for the building at Rs. 3,000/- per mensem and fixed the value of the building itself as the rent due for 16 years. The value of its site was calculated at the rate of Rs. 50,000/- per cent though item 1 which has no road access was valued at the rate of Rs.5,000/- per cent only. It was thus that the Commissioner fixed the total value of item 2 at Rs. 6,28,550/- and item 1 at Rs. 6,29,605/-. I do not think that the valuation made by the Commissioner for the purpose of partition is without basis as contended. 5. The thrust of the argument of the learned counsel for the revision petitioners was with regard to the failure of the Commissioner to allot 1/3rd share claimed by the revision petitioners out of the half share due to the defendants separately. It was pointed out that the revision petitioners had filed LA. No. 479/ 95 on 24-2-1996 and not only paid court fees for the purpose but also shared the commission batta as per order of the court and hence 1/6th share out of the entire property should be separately allotted to the revision petitioners. 6. There is little merit in the contention of the revision petitioners that the Commissioner erred in not allotting the 1/6th share claimed by the revision petitioners separately; the reason being that the preliminary decree passed in the case does not provide for any such allotment. 6. There is little merit in the contention of the revision petitioners that the Commissioner erred in not allotting the 1/6th share claimed by the revision petitioners separately; the reason being that the preliminary decree passed in the case does not provide for any such allotment. The learned counsel for the petitioners submitted, during hearing, that any number of preliminary decrees can be passed or the preliminary decree already passed can be amended and that in the circumstances, the Commissioner and the court erred in not effecting division of 1/6th share separately. In this regard the fact that the court accepted the court fees for separate allotment paid by the revision petitioners and also made . the petitioners pay a part of the commission batta, is also highlighted. Even if the payments claimed by the petitioners are correct, I do not think that they can be allowed separate allotment of shares as things stand at present; the reason being that the preliminary decree passed in the case does not authorise such allotment and what is contemplated is only division of the property into two shares and allotment of one share to the plaintiffs and the other share to the defendants 1 to 26 jointly. The preliminary judgment also does not clearly specify as to what exactly is the share due to the present revision petitioners. 7. It is true that the preliminary decree passed in the case can be amended if the circumstances justify the same as found in Phoolchand and another v. Gopal Lal ( AIR 1967 SC 1470 ). But then necessary application has to be filed by the petitioners for the purpose. Instead of doing so they cannot intervene in the final decree proceedings where what is intended is only to give actual allotment of shares as contemplated in the preliminary decree. Admittedly, the petitioners have not so far filed any application seeking re-opening and amendment of the preliminary decree passed in the case or for passing a further preliminary decree. In the absence of any such steps the petitioners cannot successfully contend that the Commissioner should have made separate allotment of shares claimed by them. The fact that they have paid the court fees subsequent to the passing of the preliminary decree or that the court allowed them to share the commission batta does not at all made any difference. In the absence of any such steps the petitioners cannot successfully contend that the Commissioner should have made separate allotment of shares claimed by them. The fact that they have paid the court fees subsequent to the passing of the preliminary decree or that the court allowed them to share the commission batta does not at all made any difference. Based on mistakes, if any, on the part of the Trial Court the petitioners cannot claim to modify the preliminary decree passed in the case. 8. In the circumstances, I find that the petitioners cannot get any relief in this revision. However, their right to get partition of their shares separately need not be shut out. For this, they have to file necessary application for amending the preliminary decree. To facilitate the filing of such a petition so that a further suit J for partition can be avoided, it is directed that the final decree proceedings in the present case will stand stayed for a period of one month from today. If, in the meantime, any application for amendment of the preliminary decree is filed by the petitioners, the passing of the final decree will be postponed until such application is also disposed of. In the event of the prospective application being allowed directing separate allotment of the shares claimed by the revision petitioners, they will also have an opportunity to seek remission of the commission report already available so that necessary, modifications can be made. Leaving open these rights to the revision petitioners the present C.R.P. is closed. It is made clear that in case no application is filed by the petitioners as above, the impugned order will stand confirmed.