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2006 DIGILAW 74 (MAD)

K. S. Lateef v. S. Ansari & Another

2006-01-18

S.TAMILVANAN

body2006
Judgment :- 1. The appellant herein, is the first defendant in the Suit in O.S. No. 33/2002, on the file of the Principal District Munsif, Ambasamudram. The' suit was filed by the first respondent herein as the plaintiff against the appellant and two others for partition and separate possession of 2/5 shares in the schedule mentioned property. The Trial Court passed final decree vide its judgment dated 21.1.2004 to divide the 2/5 shares and allot the specific portions as per the Commissioner's Report, against which the appellant herein and the first defendant in the Suit has preferred the aforesaid First Appeal before the Sub-Court, Ambasamudram. 2. After considering the oral and documentary evidence and hearing the arguments of both sides, the lower Appellate Court confirmed the judgment and decree of the Trial Court and dismissed the Appeal preferred by the appellant herein, against which the Second Appeal has been preferred by the Respondent/First defendant., 3. The following substantial question of law arose for consideration in this Second Appeal: "Whether the Courts below are legally right in holding that the suit property is divisible in the absence of any evidence or finding as regards the structural stability and soundness of an admittedly very old building, when necessarily dividing walls have to be built in the first floor over a madras terrace." 4. In the memorandum of grounds of Second Appeal, the appellant has also raised another substantial question of law, "Whether the Courts below are right in dividing the frontage not as per the shares of each sharer." 5. The learned Counsel for the respondents contended that the respondents are entitled to 2/5 shares in the schedule mentioned property and the same is not in dispute. It is seen from the records that the appellant herein, originally raised an objection that the property is indivisible and raised the objection in the counter. According to him, it is a very old building and its structural stability and soundness ware not considered by the Courts below that the dividing walls have to be built in the front floor. Therefore, according to the appellant, the property is not divisible. Contrary to the said plea, in, the Second Appeal, he has stated that the frontage of the building is to be allotted as per the shares of each sharer. 6. Therefore, according to the appellant, the property is not divisible. Contrary to the said plea, in, the Second Appeal, he has stated that the frontage of the building is to be allotted as per the shares of each sharer. 6. The Courts below have given a clear finding that the property is divisible on the basis of the Commissioner's Report and plan. Therefore, the plea of the appellant that the property is indivisible cannot be accepted, since the same is contrary to the findings of the Courts below based on the evidence and his subsequent plea to allot the frontage as per the shares of the parties. 7. When the case was posted for arguments on 20.12.2005, the learned counsel for the appellant contended that as per the Commissioner's plan, the portion described as A, B, C, D in Ex.P-1, has been allotted to the respondent/plaintiff, and the final decree was passed. According to him, the wall described as 'CD' is not in the middle of the building. At the request of the learned Counsel for the appellant only for the said verification of the factum the case was adjourned to 2.1.2006 and both of the Counsel represented in the open Court that there is no dispute with regard to the other aspects in this Second Appeal. 8. Subsequently, after inspecting the property, the learned Counsel for the appellant represented that the portion allotted to the respondent by the Trial Court and the remaining portion on the West be allotted for the appellant's share. The learned Counsel far the respondents contended that the appellant being the paternal uncle of the respondents herein, enjoying the property and continuously protracting the Proceedings for 26 long years, thereby denying the right of enjoyment of 2/5 shares of the respondents herein. According to the appellant, originally, the appellant/first defendant had only 1/5 share in the suit property, then he purchased 2/5 shares from the other defendant and thereby entitled to 3/5 shares in the property. 9. It is a settled proposition of law, that in a partition suit, the defendant is also in the same footing as that of the plaintiff, as the appellant/defendant had not pleaded for the allotment of his shares and not paid necessary Court fee. 9. It is a settled proposition of law, that in a partition suit, the defendant is also in the same footing as that of the plaintiff, as the appellant/defendant had not pleaded for the allotment of his shares and not paid necessary Court fee. For the same, the Trial Court has passed a final decree partition only to divide and allot 2/5 shares to the respondents/plaintiffs and accordingly, the portion described as A, B, C, D in the Commissioner's plan, Ex.C-3, was ordered to be allotted to the respondents/plaintiffs. In the First Appeal, the final decree passed by the Trial Court was confirmed and the Appeal preferred by the appellant herein was dismissed. In the Second Appeal, the appellant/defendant cannot raise a new plea, contrary to his earlier pleadings. As the appellant is also in the same footing as that of the plaintiff, he could have paid the Court-fee and pleaded for the allotment of his share for which, he is entitled to. But without raising the plea, he had stated in his counter that the property was indivisible and also other untenable defence against passing the final decree. It has also been admitted that the CD wall shown in the Commissioner's plan in Ex.C-3, is approximately in the middle portion. Only after considering the Commissioner's report and plan and the arguments advanced by both sides, the Trial Court has allotted, A, B, C, D portion shown in the Commissioner’s plan to the respondents for their 2/3 shares. 10. On the facts and circumstances of the case, I could see no illegality or infirmity in the judgment rendered by the Courts below and I could see no bona fide reason for the appellant to allow the Second Appeal. The substantial questions of law raised by the appellant, (i) that the property as not divisible and also stating it a very old building and due to lack of structural stability and soundness and (ii) the other plea, to allot the frontage share as per the shares of each sharer are two different contradictory pleas which cannot go together. Further, the first defendant's original share was only 1/5th and subsequently, he purchased 2/3rd shares from the other sharers and further the share cannot be allotted proportionately beyond the middle wall due to practical difficulties in the enjoyment. 11. Further, the first defendant's original share was only 1/5th and subsequently, he purchased 2/3rd shares from the other sharers and further the share cannot be allotted proportionately beyond the middle wall due to practical difficulties in the enjoyment. 11. I could see no bona fide reason to allow the Second Appeal, contrary to the findings recorded by the Courts below. In the result, the judgment rendered by the Courts below are confirmed and the Second Appeal is dismissed. Consequently, V.C.M.P. No. 209 of 2005 and C.M.P. No. 2430 of 2005 are closed. However, there is no order as to costs.