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2006 DIGILAW 2671 (MAD)

Vijayalakshmi & Another v. Kandasamy & Another

2006-10-10

A.C.ARUMUGAPERUMAL ADITYAN

body2006
Judgment :- (This appeal was filed under Section 96 of C.P.C. against the final decree dated 3.5.1990 passed in I.A.No.378 of 1989 in O.S.No.135 of 1988 on the file of Principal Sub Court, Cuddalore.) The petitioners/plaintiffs in I.A.No.378 of 1989(final decree petition) in O.S.No.135 of 1988 on the file of Principal Sub Court, Cuddalore, are the appellants herein. There are 12 items of schedule properties to the petition in the final decree. 2. The learned trial Judge, after considering the rival contentions of the parties and after going through the Commissioner's report and plan, has passed a final decree in respect of plaintiffs/petitioners 1/4th share in the petition schedule Items properties except Item Nos.6,10 and 11. 3. The plaintiffs attack the final decree on three grounds. (a)The first ground raised by the learned counsel appearing for the appellants is that in Item No.4, the learned trial Judge has failed to allot 1/4th share but had only given right to draw water towards their 1/4th share from the well situate in Item No.4. There is no serious objection for allotting 1/4th share in the motor for the plaintiffs by the other side. Having allotted 1/4th share in the water in the well, the learned trial Judge ought to have allotted 1/4th share to the plaintiffs in motor and pump set also, which has been scheduled as Item No.4 to the petition. (b)The second ground raised by the learned counsel appearing for the appellants is that the trial Court has not passed any final decree in respect of Item Nos. 6,10 and 11 on the ground that since the plaintiffs had raised objection that Item Nos.10 and 11 have already been sold by the respondents/defendants subsequent to the filing of the suit. Their share of 25 cents in Item No.10 as suggested by the Commissioner cannot be allotted in Item No.10. After giving due consideration to the objection raised by the learned counsel appearing for the plaintiffs, the learned trial Judge has left open Item Nos 6,10, and 11 to a separate proceeding. But now, even according to the learned counsel appearing for the appellants/plaintiffs, sale deed in respect of Item Nos.10 and 11 have been executed by the respondents/defendants only subsequent to the filing of the suit. If it is so, then the sale deed would be hit by "lis pendents" under Section 52 of the Transfer of Property Act 1882. But now, even according to the learned counsel appearing for the appellants/plaintiffs, sale deed in respect of Item Nos.10 and 11 have been executed by the respondents/defendants only subsequent to the filing of the suit. If it is so, then the sale deed would be hit by "lis pendents" under Section 52 of the Transfer of Property Act 1882. Under such circumstances, the learned counsel appearing for the appellants would represent that she has no objection for allotting their 25 cents towards 1/4th share in Item No.10 itself as suggested by the Commissioner. So the plaintiffs/appellants are entitled to 25 cents on the northern portion of Item No.10 towards their 1/4th share in Item Nos.6,10 and 11. (c) The third ground raised by the learned counsel appearing for the appellants is that in Item Nos 5,7,8 and 9 instead of allotting 1/4th their share in those items, the learned counsel would suggest that their 1/4th share in Item Nos.5,7,8 and 9 may be allotted in Item Nos 1 to 4. The learned trial Judge has rejected the contention of the petitioners/plaintiffs on the ground that Item Nos.5,7,8 and 9 are not fit for cultivation and they are lying fallow. On the other hand, Item Nos 1 to 4 are cultivable land and hence 29 cents in Item Nos.5,7,8 and 9 towards plaintiffs' share cannot be allotted in Item Nos.1 to 4 but can only be allotted in Item Nos.7,8 and 9 as "EFGH" as shown in the Commissioner's second plan. So the findings of the trial Judge in respect of plaintiffs' 1/4th share of 29 cents in Item Nos.5,7,8 and 9 need not be interfered with. 4. In fine, this appeal is partly allowed and the plaintiffs'1/4th share in the motor and pump set in Item No.4 is hereby declared and the plaintiffs/appellants 1/4th share of 25 cents in Item Nos.6,10, and 11 is hereby allotted in the northern portion of Item No.10. The final decree is modified to that effect. In other aspects, final decree passed by the trial Court Judgment is confirmed. No costs.