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2005 DIGILAW 1840 (MAD)

Ganesan v. Ponnammal & Others

2005-12-07

S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- (C.R.P. filed under Section 115 C.P.C. against the order and decreetal order dated 26.12.2002 and made in I.A.No.46 of 2002 in O.S.No.57 of 1983 on the file of the Principal Sub Court, Mayiladuthurai.) ORDER: The revision petitioner is the third defendant in O.S.No.57 of 1983 on the file of the Principal Sub Court, Mayiladuthurai and the revision is filed challenging the correctness of the order dated 26.12.2002 in respect of the appointment of advocate-commissioner for division of items 1 to 3 of the suit properties, viz., 2/5 share in item No.1 and 2/6 share in item No.2 of the suit properties made in final decree proceedings in I.A.No.46 of 2002. 2. The deceased Govindaraj Asari along with his sister, the first respondent Ponnammal filed the suit for partition of 2/5 share in items 1 to 3 of suit properties claiming that the suit properties are the properties of their father the deceased Ramasamy. The suit was filed that the first plaintiff and the defendants 2 and 3 are brothers, who died during the pendency of the proceedings and the second plaintiff and the fourth defendant are sisters and the first defendant is their mother. Their father Ramasamy died on 22.8.1982. Further, as per the case of the plaintiffs, the second defendant relinquished his right in the family properties as per the release deed executed by him in favour of his father, but since the second defendant purchased the undivided shares of the defendants 1, 3 and 4, he was impleaded for effective adjudication. The plaintiffs 1 and 2 and the defendants 1, 3 and 4 alone are equally entitled to the suit properties. The suit was filed on 25.8.1983. 3. In the suit after contest, a preliminary decree was passed on 12.10.1984. The judgment was challenged in appeal A.S.No.181 of 1985 before this Court by the defendants 2 to 4. Along with the appeal the defendants 2 to 4 also filed C.M.P.No.8599 of 1989 seeking to direct the trial Court to proceed with the final decree proceedings relating to item 1 of the suit properties alone, for that the respondents in that appeal, viz., the plaintiffs had no objection and accordingly, the trial Court was directed to proceed with the final decree proceedings with regard to item 1 of the suit properties as early as possible and in any event before 30.9.1989. Pursuant to such order of this Court, the trial Court in the final decree proceedings in I.A.No.871 of 1989 initiated by the defendants 1 to 4, appointed an advocate-commissioner to suggest and divide the item 1 of the suit properties and taking into consideration of the report and rough plan of the advocate-commissioner, the western portion shown as "ABFOIPMLED" in the rough plan of the advocate-commissioner (Ex.C2) was allotted towards 2/5 shares of the plaintiffs including 6 coconuts trees and the eastern portion shown as "BCJKNMPIOF" in the rough plan of the advocate-commissioner (Ex.C2) was allotted towards 3/5 shares of the defendants 1 to 4 including well. Further, the plaintiffs have to pay Rs.4,000/- to the second defendant and accordingly, final decree was passed in respect of the first item of the suit properties on 13.12.1989 in I.A.No.871 of 1989. The appeal A.S.No.181 of 1985 filed by the defendants 2 to 4 was dismissed as not pressed in 2001. 4. It appears, pursuant to such final decree passed in respect of item 1 of the suit properties, the defendants 1 to 4 filed E.P.No.26 of 1990 for delivery of their shares in the first item of the suit properties allotted in the final decree I.A.No.871 of 1989 as per order dated 13.12.1989 and delivery was also effected on 19.6.1990 by the Court Amin and thereafter the delivery was also recorded on 13.7.1990 and E.P. was closed. 5. The plaintiffs filed I.A.No.46 2002 for final decree and allotment of their shares in both items 1 and 2 of the suit properties and also for mesne profits. The petition was opposed by the defendants. 5. The plaintiffs filed I.A.No.46 2002 for final decree and allotment of their shares in both items 1 and 2 of the suit properties and also for mesne profits. The petition was opposed by the defendants. In the counter, it is stated that inasmuch as in respect item 1 of the suit properties, as per the direction issued in C.M.P.No.8599 of 1989 in A.S.No.181 of 1985 by this Court, in the final decree proceedings initiated by the defendants 1 to 4 in I.A.No.871 of 1989, an advocate-commissioner was appointed and pursuant to suggestions made by the advocate-commissioner in the report and rough plan, final decree was passed allotting share to both the plaintiffs and the defendants in item 1 of the suit properties as referred to above and delivery was also effected by the Court Amin in E.P.No.26 of 1990, which was also recorded on 13.7.1990 and the E.P. was closed and therefore, in respect of item 1 of the suit properties, the plaintiffs cannot seek for the division of their shares. It is further stated in the counter that after the allotment of their shares and delivery in respect of item 1 of the suit properties, the defendants sold their shares to one Nahendran, son of Sivasamy Nadar of door No.26, Thatcha Street, Koranad, as per registered sale deed dated 4.10.1991, who is in possession and enjoyment of the properties from the date of such purchase and that he is necessary and proper party in the final decree proceedings. Further, it is stated that the second defendant while he was in sound and disposing state of mind executed an unregistered Will dated 13.3.1999 in favour of third defendant/revision petitioner. 6. Before the trial Court, the third defendant examined himself as R.W.1 and marked Exs.R-1 to R-3. R.W.1 has stated in his evidence reiterating the stand taken in the counter opposing the division of item 1 of the suit properties and passing of final decree in respect of the said item, inasmuch as that property was already divided and shares allotted to the respective parties as per final decree made in I.A.No.871 of 1989 dated 13.12.1989 and delivery also effected on 19.6.1990 and the same was recorded on 13.7.1990 by closing the E.P., pursuant to the direction issued by this Court in C.M.P.No.8599 of 1989 by this Court dated 25.7.1989. The Subordinate Judge, Mayiladuthurai though not narrated the stand taken in the counter by the defendants 1 to 4, however, analyzing the evidence of R.W.1/third defendant and Exs.R-1 to R-3 marked on the side of the defendants failed to appreciate the stand taken by the defendants that in respect of item 1 of the suit properties, the property was divided and respective shares were also allotted to the plaintiffs and the defendants, however, again appointed another advocate-commissioner for suggestion and division of the shares of both parties in respect of both item 1 and 2 of the suit properties and this order is challenged in this revision by the third defendant. 7. The learned counsel for the third defendant/revision petitioner reiterating the stand taken in the counter filed in the trial Court, advanced argument that inasmuch as, as per the direction issued by this Court in C.M.P.No.8599 of 1989, item 1 of the suit properties was divided between the parties as suggested by the advocate-commissioner taking into consideration of the report and rough plan and the defendants also taken delivery of their portion allotted to their shares in E.P.No.26 of 1990, which was closed on 13.7.1990 after recording the same and therefore, there is nothing remains for division of item 1 of the suit properties and accordingly, the order of the trial Court appointing the advocate-commissioner for division of both items 1 and 2 of the suit properties is improper and without any justification. 8. The learned counsel for the respondents 1 to 5 submitted that inasmuch as item 1 of the suit properties was not divided properly by the earlier advocate-commissioner and since both items 1 and 2 of the suit properties are adjacent property, viz., building bearing door No.11 (item 1) and building bearing door No.10(item 2) and it was not suggested by the earlier advocate-commissioner how the plaintiffs have to reach their portion allotted to their shares. 9. 9. The suit O.S.No.57 of 1983 was filed by the plaintiffs, who are brother and sister against their mother, the first defendant; their two brothers, the defendants 2 and 3 and their sister, the fourth defendant, claiming partition of their share in the suit properties and after contest, preliminary decree was passed on 12.10.1984 and in respect of item 2 of the suit properties alone appeal was filed in A.S.No.181 of 1985 in this Court by the defendants 2 to 4 and pending appeal, the defendants 2 to 4 filed petition in C.M.P.No.8599 of 1989 praying a direction to the trial Court to proceed with the final decree proceedings related to item No.1 of the suit properties alone, for which, the plaintiffs had no objection and accordingly, the trial Court was directed to proceed with the final decree proceedings in respect of item No.1 of the suit properties as early as possible and in any event before 30.9.1989. Thereafter, an advocate-commissioner was appointed by the trial Court in final decree proceedings I.A.No.871 of 1989 filed by the defendants 1 to 4 and considering the report and rough plan of the advocate-commissioner, final decree was passed on 13.12.1989 allotting the western portion towards 2/5 shares of the plaintiffs including 6 coconut trees and the eastern portion towards 3/5 shares of the defendants 1 to 4 including well. The appeal A.S.No.181 of 1985 filed by the defendants 2 to 4 has not pressed in the year 2001. Pursuant to such final decree in respect of item 1 of the suit properties, the defendants 1 to 4 also taken delivery of their shares on 19.6.1990 in E.P.No.26 of 1990 and delivery also recorded on 13.7.1990 and consequently, the E.P.No.26 of 1990 was closed. Therefore, it is clear that nothing remains for division in respect of item 1 of the suit properties. Further, after such allotment of their shares in final decree proceedings in I.A.No.871 of 1999, the defendants 1 to 4 sold their shares to one Nahendran, son of Sivasamy Nadar of door No.26, Thatcha Street, Koranad as per registered sale deed dated 4.10.1991 and he is in possession and enjoyment of the properties from the date of such purchase. Further, after such allotment of their shares in final decree proceedings in I.A.No.871 of 1999, the defendants 1 to 4 sold their shares to one Nahendran, son of Sivasamy Nadar of door No.26, Thatcha Street, Koranad as per registered sale deed dated 4.10.1991 and he is in possession and enjoyment of the properties from the date of such purchase. In view of the fact that as per the direction issued by this Court, the trial Court proceeded with the final decree proceedings in respect of item 1 of the suit properties and final decree was also passed in I.A.No.871 of 1989 allotting respective shares to both parties in the first item of the suit properties and the defendants 1 to 4 have also taken delivery, which was also recorded. In that view, item No.2 of the suit properties alone remains to be divided between the parties pursuant to the preliminary decree passed, in view of the appeal filed in respect of the said item of the property by the defendants 2 to 4 in A.S.No.181 of 1985 in this Court, which was dismissed as not pressed. 10. Therefore, there is no force in the argument advanced by the learned counsel for the respondents 1 to 5 herein that inasmuch as item 1 of the suit properties is not divided properly by the earlier advocate-commissioner, it is also open for division between the parties as it was not suggested by the earlier advocate-commissioner as to how the plaintiffs can reach their portion allotted to their shares, in view of the fact, it is clearly stated by the advocate-commissioner appointed earlier in I.A.No.871 of 1989 for division of item 1 of the suit properties that the plaintiffs have to make the provision for their entrance in their allotted portion at their cost. While so, the petition I.A.No.46 of 2002, subject matter of this revision filed by the plaintiffs seeking appointment of advocate-commissioner to divide the suit "A" and "B" schedule properties, viz., items 1 and 2 of the suit properties is thoroughly misconceived, despite the fact, the said petition was opposed stoutly in the counter filed by the defendants and also in the evidence let in through the third defendant as R.W.1 and in the document Ex.R-1, the suit register extract indicating allotment of shares to both parties in respect of item 1 of the suit properties. As per the final decree passed, which proceedings were initiated pursuant to the direction issued by this Court in C.M.P.No.8599 of 1989 in A.S.No.181 of 1989, delivery was effected and recording the delivery E.P.No.26 of 1990 was also closed on 13.7.1990. Therefore, it is incorrect to say that the report and rough plan of the advocate-commissioner appointed earlier is not acceptable in respect of item No.2 of the suit properties. In any event, the appointment of advocate-commissioner as per order in I.A.No.46 of 2002 dated 26.12.2002, subject matter of this revision for division and allotment of both items of the suit properties is improper and accordingly, it is to be set aside in respect of item No.1 of the suit properties. 11. In the result, the order dated 26.12.2002 in I.A.No.46 of 2002 in O.S.No.57 of 1983 passed by the Principal Sub Court, Mayiladuthurai is modified that the appointment of advocate-commissioner as such is only with regard to item 2 of the suit properties. The appointment of advocate-commissioner in respect of item No.1 of the suit properties is set aside. This Civil Revision Petition is disposed of accordingly. No costs.