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2005 DIGILAW 1328 (MAD)

R. Rangappan @ Appaji v. S. Kantharaj & Others

2005-08-10

R.BANUMATHI

body2005
Judgment :- (PRAYER: Revision filed against the order dated 10.12.2003, made in I.A.No.739/2000 in O.S.No.61/1996 on the file of the Subordinate Judge, Udhagamandalam.) This revision arises out of the order of the Sub Court, Udagamandalam, dated 10.12.2003, made in I.A.No.739/2000 in O.S.No.61/1996, appointing Advocate Commissioner in the final Decree Proceedings. D-4 is the Revision Petitioner. 2.Parties are related as under:- Renga Gowder (died on 01.05.1970) = Lakshmi Ammal (died on 11.06.2003) 3. O.S.No.61/1996:- Lakshmi Ammal had filed this suit against her sons praying for partition and separate possession of 1/4th share in the number of items of the suit properties on the ground that the suit property was the joint family property of her husband T.Renga Gowder and her sons. Renga Gowder died on 01.05.1970, leaving behind him the legal heirs – wife - Plaintiff and the three sons viz., the Defendants. Second Defendant – stated no objection for allotment of 11 cents of land in Suit R.S.No.1544/1B1A1A. The Revision Petitioner was set exparte. On the representation of the second Defendant, Preliminary Decree for partition was passed on 19.11.1999 allotting 11 cents to the Plaintiff. 4. I.A.No.739/1996:- This application was filed by the Plaintiff Lakshmi Ammal for passing the Final Decree. Final Decree was passed on 20.02.2001 allotting 11 cents of land in R.S.No.1544/1B1A1A. 5.The Revision Petitioner/D-1 had filed A.S.No.11/2001 on the file of the District Court, Uthagamandalam as against the Final Decree. The Final Decree was modified to the effect that the Plaintiff Lakshmi Ammal is entitled to 1/4th share and trial Court was directed to appoint Commissioner in I.A.No.739/1996, with further direction to determine the value of 1/4th share. The appellate Court has further observed that if the value of the 11 cents is less than the value of Plaintiff's 1/4th share that 11 cents should be allotted to the Plaintiff. 6.Pursuant to the aforesaid order of the District Judge, a Commissioner was appointed in I.A.No.739/1996, against which, the present revision petition is preferred. The learned counsel for the revision petitioner/D-1 has contended that the appointment of Advocate Commissioner to divide the properties, when the Preliminary Decree has been challenged, is invalid. 6.Pursuant to the aforesaid order of the District Judge, a Commissioner was appointed in I.A.No.739/1996, against which, the present revision petition is preferred. The learned counsel for the revision petitioner/D-1 has contended that the appointment of Advocate Commissioner to divide the properties, when the Preliminary Decree has been challenged, is invalid. It is further submitted that mother Lakshmi Ammal was a party to the family arrangement of the year 1978 and that she had no right to seek partition of the same properties for the second time and that she is estopped from claiming the partition for the second time. Pointing out the filing of the second appeal in S.A.SR.No.24021/2004, the learned counsel for the Revision Petitioner submitted that when the second appeal has been preferred (with petition to excuse the delay in filing the second appeal and the same is pending), the trial Court erred in appointing Advocate Commissioner to note down the value and proceeding with the further proceedings in the Final Decree Application. 7.The learned counsel for the first Defendant has submitted that mere filing of the appeal would not operate as stay of the proceedings under the Decree. Challenging the maintainability of the Revision, the learned counsel for the first Respondent has submitted that if really the Revision Petitioner/D-1 is aggrieved over any of the orders passed in the Final Decree Proceedings, he has to file application only in the Second Appeal and that the impugned order of appointing Advocate Commissioner to determine the market value of the lands cannot be challenged in the revision. 8.As against the Preliminary Decree and the Final Decree passed in I.A.No.739/1996, as against the Judgment in A.S. No.11/2001, second appeal is said to have been preferred in S.A.SR.No.24021/2004. C.M.P.No.17219/2005 - petition to condone the delay in filing the second appeal is pending. The second appeal is yet to be admitted. Mainly challenging the Preliminary Decree and the Final Decree in I.A.No.739/ 1996, the learned counsel for the revision petitioner/D-1 has submitted that the Plaintiff Lakshmi Ammal was a party to the family arrangement of the year 1978 and that she has no right to seek partition of the suit properties for the second time. It is further submitted that the Revision Petitioner D-1 has been set exparte in the suit stage and that the Preliminary Decree and the Final Decree passed are not binding upon the Revision Petitioner. It is further submitted that the Revision Petitioner D-1 has been set exparte in the suit stage and that the Preliminary Decree and the Final Decree passed are not binding upon the Revision Petitioner. 9.The submissions made onbehalf of the Revision Petitioner/D-1 are the contentious points to be urged in the second appeal, which is pending admission. The order of appointing Advocate Commissioner in I.A.No.739/1996 is only pursuant to the direction of the District Court in A.S.No.11/2001. Modifying the Final Decree to the effect that the Plaintiff is entitled to 1/4th share, the learned District Judge directed the trial Court to appoint an Advocate Commissioner in I.A.No.739/1996 to determine the value of 1/4th share with the observation that if the value of the 11 cents is less than the value of the Plaintiff's 1/4th share, 11 cents should be allotted to the Plaintiff. Appointment of Advocate Commissioner is concomitant to the Final Decree proceeding and non compliance with the direction of the appellate Court. The learned Subordinate Judge, Udagamandalam has rightly appointed the Advocate Commissioner. There is neither material irregularity nor any error, apparent on the face of the record warranting interference, exercising the power under Art.227 of the Constitution of India. This revision has no merits and is bound to fail. 10.For the foregoing reasons, the order of appointing Advocate Commissioner in I.A.No.739/2000 in O.S.No.61/1996 on the file of the Subordinate Judge, Udhagamandalam, is confirmed and this revision petition is dismissed. Consequently, CMP No.6744/2004 is also dismissed. In the circumstances of the case, there is no order as to costs.