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2005 DIGILAW 480 (MAD)

Santha & Another v. K. V. Janardhana Rao & Others

2005-03-19

S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- The unsuccessful plaintiffs 2 and 3 in O.S.No.672 of 1987 on the file of the Additional Sub Court are the revision petitioners in this Civil Revision Petition. This revision is directed against the order of dismissal dated 23.01.2004 and made in I.A.No.953 of 2002 filed under Order XXVI Rules 13 and 14 of the Code of Civil Procedure to appoint a commissioner for effecting division of items 1 and 2 as per the preliminary decree dated 13.12.200 passed in O.S.No.672 of 1987 directing him to file a report with plans taking into consideration value, quality and provision for convenient enjoyment of the shares allotted to them. 2. The plaintiffs filed the suit for partition in O.S.No.672 of 1987 on the file of the Court of Additional Sub-Judge, Salem, and the suit properties consist of four items. The suit was contested by the defendants which resulted in passing of preliminary decree on 13.12.2000 in respect of item Nos.1 and 2 of the suit properties. With regard to item No.3 of the suit properties, the suit was dismissed and in respect of item No.4 of the suit properties also, the suit was dismissed as settled out of Court. The second defendant, while deposing evidence, admitted that the defendants have no objection for partition of item Nos.1 and 2 of the suit properties and ultimately, preliminary decree was passed after contest in respect of the above said two items. No appeal was also filed challenging the passing of preliminary decree in respect of item Nos.1 and 2 of the suit properties and as such, the preliminary decree passed in respect of the above said two items of the suit properties has become final. Challenging the dismissal of suit in respect of the third item of the suit properties, the plaintiffs 2 and 3 preferred appeal in A.S.No.75 of 2001 on the file of the Court of II Additional District Judge, Salem, which was dismissed on 15.02.2002 confirming the judgment and decree passed by the Additional Sub-Judge, Salem. Challenging the finding in respect of item No.3 of the suit properties, the plaintiffs preferred second appeal in S.A.No.1552 of 2002 on the file of this Court and the same is pending. 3. Challenging the finding in respect of item No.3 of the suit properties, the plaintiffs preferred second appeal in S.A.No.1552 of 2002 on the file of this Court and the same is pending. 3. The plaintiffs 2 and 3 filed I.A.No.953 of 2002 in O.S.No.672 of 1987 on the file of the Court of Additional Sub-Judge, Salem, seeking for appointment of a Commissioner for effecting division of item Nos.1 and 2 of the suit properties as per the preliminary decree dated 13.12.2000 passed in O.S.No.672 of 1987. The trial Court dismissed the petition on the ground that the Second Appeal is pending before this Court in respect of the item No.3 of the suit properties. Challenging the said order, the present Civil Revision Petition has been filed. 4. Heard the learned counsel for the revision petitioners and the learned counsel for the first respondent. 5. Learned counsel for the revision petitioners submitted that inasmuch as the Second Appeal is pending before this Court only in respect of item No.3 of the suit properties and the preliminary decree passed in respect of item Nos.1 and 2 of the suit properties having become final, since no appeal has been filed by the respondents challenging the same, the dismissal of the petition in I.A.No.953 of 2002 for passing final decree in respect of the said items 1 and 2 of the suit properties is not proper. 6. Learned counsel for the first respondent submitted that since the Second Appeal is pending before this Court, the revision petitioners are not entitled to get final decree even in respect of item Nos.1 and 2 of the suit properties. 7. Inasmuch as the preliminary decree was passed in respect of item Nos.1 and 2 of the suit properties after contest and the same having become final since no appeal has been filed, the revision petitioners are entitled for final decree in respect of the above said two items of the suit properties. The stand taken by the learned counsel for the first respondent that the revision petitioners are not entitled for final decree in respect of item Nos.1 and 2 of the suit properties mainly because of the pendency of the Second Appeal before this Court, cannot be accepted and there is no force in such argument advanced by him. The stand taken by the learned counsel for the first respondent that the revision petitioners are not entitled for final decree in respect of item Nos.1 and 2 of the suit properties mainly because of the pendency of the Second Appeal before this Court, cannot be accepted and there is no force in such argument advanced by him. Therefore, the revision petitioners cannot be denied of enjoying the fruits of the preliminary decree in their favour in respect of item Nos.1 and 2 of the suit properties. The trial Court, without considering all these aspects properly, has wrongly dismissed the petition filed in I.A.No.953 of 2002. Therefore, the order of the trial Court deserves to be interfered with. 8. In the result, the Civil Revision Petition is allowed. No costs. The order dated 23.01.2004 passed in I.A.No.953 of 2002 in O.S.No.672 of 1987 on the file of the Court of Additional Sub-Judge, Salem, is set aside. Consequently, C.M.P. No.11105 of 2004 is closed. The trial Court is directed to restore I.A.No.953 of 2002 on its file and to proceed with the same in accordance with law for passing final decree in respect of item Nos.1 and 2 of the suit properties.