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2012 DIGILAW 2278 (MAD)

. v. .

2012-06-06

V.PERIYA KARUPPIAH

body2012
Judgment : 1. This application is filed by the applicants / defendants seeking appointment of an Advocate Commissioner to determine the fair value of the property to enable the defendants to buy out the share of the plaintiff at the fair value. 2. Application No.1425 of 2011: This application is filed by the applicant / plaintiff praying this Court to pass a final decree in the above suit for partition by dividing the suit property by metes and bounds and to allot 1/5th share to the applicant / plaintiff. 3. Application No.1426 of 2011: This application is filed by the applicant / plaintiff seeking appointment of an Advocate Commissioner to divide the suit property by metes and bounds and to allot 1/5th share to the applicant / plaintiff. 4. Heard Mr. T.V. Ramanujun, learned senior counsel appearing for Mr. P.V.S. Giridhar & Sai Associates, learned counsel for the applicants / defendants in A.No.3730 of 2011 and respondents in A.Nos.1425 and 1426 of 2011 and Mr. G.K.R. Pandian, learned counsel appearing for the respondent in A.No.3730 of 2011 and applicant / plaintiff in A.Nos.1425 and 1426 of 2011. 5. The learned senior counsel would submit in his argument that the applicants were the defendants in the suit in C.S.No.398 of 2010, a suit filed by the respondent / plaintiff for partition and separate possession of his 1/5th share in the suit property and the said suit was decreed on an interim decree ordered in O.A.No.4794 of 2010, and except for the relief of accounting, a preliminary decree has been passed. He would further submit that the said preliminary decree became final and the applications were filed by the respondent / plaintiff to pass a final decree in terms of the preliminary decree, after appointing a commissioner for suggesting modes of division. He would further submit in his arguments that the commissioner also inspected the suit property and had suggested modes of division, but the said suggestion is not practicable. He would also submit that the suit property and the building situated are in such a way that it cannot be divided as per the preliminary decree, however, the commissioner had suggested two methods for dividing 1/5th share of the plaintiff in the back side or in the front side. He would also submit that the suit property and the building situated are in such a way that it cannot be divided as per the preliminary decree, however, the commissioner had suggested two methods for dividing 1/5th share of the plaintiff in the back side or in the front side. He would also submit that the first defendant, being the mother of all parties, did not want to leave the house because she lived in the said house with her husband and she is sentimentally attached with the said property and other defendants also have no intention to divide their respective 1/5th share separately and they want to be united and to have the 4/5th share with the first defendant. He would further submit that the location of 1/5th share of the plaintiff is very much difficult in view of the rules regarding Development Control Regulations framed under the Tamil Nadu Town and Country Planning Act, 1971 and if it is divided it would be amounting to violation of such rules, which need not be permitted through the passing a final decree in respect of the 1/5th share of the plaintiff. He would further submit that the allocation in the back of the suit property would also defeat the rules framed under the Development Control Regulations. He would also refer to the rules for letting space and the said rules would not permit the plaintiff, the 1/5th share holder, to put up any construction within the said premises likely to be allotted. He would also submit that the report of the commissioner and other particulars were only given by the plaintiff and the commissioner's report was found entirely upon the statement and representations made by the plaintiff and the evidence gathered by the plaintiff and therefore, the suggestions may not be accepted by the court. He would further submit that the commissioner in her report did not determine the actual extent of share to which parties are entitled to, more particularly the plaintiff, and how it could be accommodated within the limited extent of land available in the suit property. He would further submit that the report of the commissioner is in controvention of the statutory requirements and the suggestions cannot be accepted for allotting 1/5th share either in the front side or in the back side of the suit property. He would further submit that the report of the commissioner is in controvention of the statutory requirements and the suggestions cannot be accepted for allotting 1/5th share either in the front side or in the back side of the suit property. He would further submit in his arguments that the first defendant being the mother wanted to live with her children and all other children, namely, the defendants 2 to 4 except the plaintiff are willing to live with the first defendant and the first defendant / mother was also attached with the sentiment reasons and she is ready to buy the share of the plaintiff, viz., 1/5th share and it would be also good for the plaintiff, to sell his share to other defendants. He would also submit that the plaintiff was insisting, prior to the filing of the suit, to sell the suit property and his 1/5th share out of the proceeds may be given to him and therefore, he would not be prejudiced by issuing a direction to him to sell the property to the defendants after a proper valuation has been done by an appointment of a commissioner. Therefore, he would request the court that the report submitted by the commissioner in A.Nos. 1425 and 1426 of 2011 may not be accepted, but it may be rejected and the final decree may not be passed till an Advocate Commissioner is appointed in the application filed by the defendants in A.No.3730 of 2011 and filing his report after valuing the suit property and ascertaining the value of 1/5th share belonging to the plaintiff, a suitable direction may be issued to the Commissioner for determining the fair value of the property to enable the defendants to buy the share belonging to the plaintiff at a fair valuation. He would further submit that the final decree could be passed after the value of the 1/5th share of the plaintiff be ascertained and ordered to be sold to the defendants. 6. Mr. G.K.R. Pandian, learned counsel for the respondent / plaintiff would submit in his argument that the property is not a small property, but, it is measuring 40.4 feet on its East-West and 81 feet on its North-South and the building portion is located on the western side and open space is available on the eastern side so as to get access with the backyard portion. Similarly, in the front side also, there are three gates and one of the gates may be used to have an access to the rear portion and the remaining two gates may be used by the persons who are occupying in the front portion, and therefore, there is a possibility of dividing the property as per the ration of shares declared in the preliminary decree. He would further submit in his arguments that the allotment of 1/5th share will not in any way infringe the rules under Development Control Regulations framed under Tamil Nadu Town and Country Planning Act, 1971, since the existing building would be used without any modification except with temporary partition made in the said building. He would also submit that even otherwise if the plaintiff's 1/5th share measuring about 600.6 sq.ft is allotted on the back side of the building, that could be very well demarcated and allotted to the plaintiff; and since the value of the backyard portion is lesser than the front side portion, pathway leading to the said backyard portion may be allotted from the backyard portion to the front side on the eastern extreme of the property which can be used as a common pathway. He would further submit that the said common pathway can be used for access to the plaintiff and his family members apart from taking their cars, vehicles and other accessories to their places. He would also submit that if the plaintiff's 1/5th share is allotted in the front portion, it can be allotted on the South-Western side of the front portion and he can use the front side without any right of the common pathway anywhere, but he can use 666 sq.ft towards his 1/5th share and the rest of the portions be enjoyed by the defendants. There would not be any difficulty in allotting such area and there would not be any modification of the structures of the properties which would be detrimental to the Development Control Regulations. He would further submit in his arguments that the inception of the Development Control Regulations should not be in any way to defeat the lawful right of the plaintiff flowing from the preliminary decree. He would further submit in his arguments that the inception of the Development Control Regulations should not be in any way to defeat the lawful right of the plaintiff flowing from the preliminary decree. If the 1/5th share of the plaintiff is allotted, there is no need of putting up construction of any new building in the allotted portion and the plaintiff would keep the said building with temporary modification for his use. Therefore, the alleged fear of violation of the Development Control Regulations will not in any way a hurdle for passing a final decree in terms of the preliminary decree and also in consonance with the suggestion of the commissioner. He would further submit in his arguments that the plaintiff is also very much attached with the sentiment reasons that he was also living with his father in the said building and therefore, he is very much fond of getting his 1/5th share in the suit property since it would be possible to divide the suit property. He would also submit in his argument that the defendants have filed affidavits in the injunction applications while they have put up unauthorised construction in the first floor without the permission of the court as well as the authorities to the effect that they would not claim any exclusive right in the additional construction put up by them and therefore, they are not entitled to ask for the purchase of the plaintiff's share, as ordered in the preliminary decree. He would further submit in his arguments that even as per the affidavits filed by all the defendants regarding their relinquishment from claiming exclusive right in the additional construction put up by them, they are estopped from claiming the sale of the 1/5th share belonging to the plaintiff and the application filed by them for valuing the said property is not thus sustainable. Therefore, he would request the court that as per the suggestion of the commissioner, the 1/5th share of the plaintiff may be allotted either in the front side or in the back side. Therefore, he would request the court that as per the suggestion of the commissioner, the 1/5th share of the plaintiff may be allotted either in the front side or in the back side. Therefore, he would request the court to dismiss the application filed by the defendants to value the 1/5th share of the plaintiff in order to enable the defendants to buy and pass a final decree in terms of the preliminary decree for allotting 1/5th share in the suit property to the plaintiff either in the back side or in the front side of the suit property as suggested by the Commissioner. 7. I have given anxious thoughts to the arguments advanced on either side. 8. The plaintiff filed a suit for partition and separate possession of his 1/5th share in the suit property and in the said suit an interim decree has been passed under Order 12 Rule 6 CPC. On admission, a preliminary decree was accordingly passed by this Court. The only remaining scope in the suit is accounting. The plaintiff came forward with the application to appoint advocate commissioner for suggesting the modes of division in terms of the preliminary decree and also to pass final decree on the basis of suggestions of the Commissioner. While those applications are pending, the defendants have come forward with an application to value the suit property especially the 1/5th share belonging to the plaintiff so as to enable the defendants to buy the suit property. 9. In pursuance of filing of the application for appointment of the Commissioner, this Court had appointed Ms. V. Malathy, Advocate as Commissioner and she also visited the suit property and filed her report along with plans and other photographs. The commissioner had referred to various measurements regarding the suit property and suggested that the unused toilets and car parking in the ground floor may be demolished and the whole property may be divided into five shares with a common passage leading through the third compound gate and the plaintiff may be allotted his 1/5th share on the northern end i.e., back portion of the suit property, where the office room portion is located with the common passage. Secondly, she had suggested that 1/5th share of the plaintiff may be allotted in the front open space along with the front room, since the other defendants do not want separate partition. Secondly, she had suggested that 1/5th share of the plaintiff may be allotted in the front open space along with the front room, since the other defendants do not want separate partition. Whether these two modes of suggestion given by the commissioner could be fruitful for allotment of share as per preliminary decree is the question. 10. The learned senior counsel appearing for the defendants would submit in his argument that the commissioner's report contains serious discrepancies and therefore, the commissioner's suggestions need not be accepted. For that he had relied upon a judgment of Orissa High Court reported in AIR 1991 Orissa 6, which would run as follows: "Serious discrepancies in Commissioner's report and his evidence recorded in Court – Court should reject the report. .............. the report of the Commissioner should be absolutely free from blemish. The right course for the Court would have been to reject the report and appoint another survey knowing Commissioner to implement the directions given in the order of the Court." In the aforesaid judgment, it has been found that the Commissioner's report can be rejected, whenever serious discrepancies are found. As regards the commissioner's report in this case, it was contended that the commissioner had noted everything as gathered and furnished by the plaintiff including photographs. It is no doubt true that the commissioner is a neutral person and he or she has to depend upon the plaintiff or defendant at the time of inspecting the suit property for getting particulars. It is not disputed that the photographs were not taken at the suit property. On a cursory perusal of the photographs, I could see that the photographs were taken during the visit of the commissioner at the suit property. Therefore, the furnishing of the said photographs by the plaintiff will not in any way help the defendants to say that the commissioner is biased. The commissioner measured the property and had filed the plans. The said measurements did not show any discrepancies in between them. No doubt, the commissioner had suggested to allot 1/5th share of the plaintiff either in the back side or in the front side. But the commissioner did not draw any sketch showing the 1/5th share of the plaintiff to be allotted in the front or in the back side of the property. No doubt, the commissioner had suggested to allot 1/5th share of the plaintiff either in the back side or in the front side. But the commissioner did not draw any sketch showing the 1/5th share of the plaintiff to be allotted in the front or in the back side of the property. However, she considered the way of reaching the back portion, if 1/5th share of the plaintiff is allotted to the plaintiff on the back side. She has also stated about the mode of enjoyment in case the plaintiff's 1/5th share is allotted on the south-west portion of the suit property, i.e., in the front portion of the suit property. In such circumstances, I cannot see any serious discrepancies in the report of the Commissioner. Therefore, the said judgment of the Orissa High Court is not applicable to the present case. 11. Yet another judgment of Orissa High Court reported in AIR 1991 Orissa 83 (Fakir Khan ..vs.. Kuanr Khan) for the purpose of showing that when no partition is possible without the demolition of the house, reasonable price to be fixed for compensation for the share of other side in order to avoid wastage. The judgment cited in AIR 1991 Orissa 83 (Fakir Khan ..vs.. Kuanr Khan) would run as follows:- "Partition possible only after demolition of house – reasonable price fixed as due compensation for land in dispute instead of demolition. " As regards this case, the mode of allotment suggested by the Commissioner was without any demolition of the structure existing in the suit property. The structures suggested for demolition was unused toilets and car-parking, which would not in any way affect any party. Therefore, the aforesaid judgment cited by the learned senior counsel for the defendants is not helpful to decide the said point in favour of the defendants. 12. A judgment of Bombay High Court reported in AIR 1982 Bombay 274 (Janardan Mahadev Dhuru and others ..vs.. Vijaynathh Moreshwar Dhuru and others) has been cited in support of the argument that the Development Control Regulations should not have been violated due to the division ordered by the court and in such circumstance, the partition or division should not be approved by the courts, even though, for a family partition. Vijaynathh Moreshwar Dhuru and others) has been cited in support of the argument that the Development Control Regulations should not have been violated due to the division ordered by the court and in such circumstance, the partition or division should not be approved by the courts, even though, for a family partition. On a careful understanding of the aforesaid judgment, I could see that no demolition of the entire structure is necessary for demarcating the property so as to allot the 1/5th share in the property. According to the commissioner, the rear portion if allotted there would not be any demolition of main structures except the unused toilets, which are temporarily put up inside the compound. In the facts and circumstances of this case, the judgment of Bombay High Court reported in AIR 1982 Bombay 274 cited supra is not applicable, as there would be no violation of Development Control Regulations. 13. Therefore, I am not in agreement with the argument advanced by the learned senior counsel that it is not possible for partition of the property as per the terms of the preliminary decree and therefore, it should be valued for sale of 1/5th share of the plaintiff in favour of the defendants. 14. When we approach the allotment of 1/5th share in the suit property as declared in the preliminary decree, I could see that in the total extent of 3272.4 sq.ft, the 1/5th share of the plaintiff would be 654.48 sq.ft. If 654.48 sq.ft is allotted on the back portion of the suit property i.e., on the northern end of the suit property, the measurement of the extent of 1/5th share 654.48 sq.ft would be contained with 40.4 ft on its East-West and 16.2 ft. on the North-South as belonging to the plaintiff. There is no dispute that there are three gates and the eastern gate is leading towards north to reach the back portion of the suit property. The said back portion is certainly lesser in value than that of the front portion. Therefore, provision should also be made to compensate such lesser in value of the back portion. Accordingly, if a provision to reach the back portion is made available with, the back portion would be also equivalent to the value of front portion. 15. The said back portion is certainly lesser in value than that of the front portion. Therefore, provision should also be made to compensate such lesser in value of the back portion. Accordingly, if a provision to reach the back portion is made available with, the back portion would be also equivalent to the value of front portion. 15. Alternatively if the front portion measuring 654.48 sq.ft is allotted to the plaintiff, it would certainly close the two gates lying on the western side in the compound wall A1B1 and it would be more inconvenient to the defendants, who are four in numbers. If the front portion is left to the defendants it would be easy for both parties to have their access separately. Therefore, I feel that the first suggestion made by the Commissioner that the back portion of the suit property be allotted towards the 1/5th share of the plaintiff is approvable. Therefore, the plaintiff is entitled to his 1/5th share in the suit property on the northern end of the suit property measuring a total extent of 654.48 sq.ft with an the East-West measurement of 40.4 ft. and North-South measurement of 16.2 ft. and with the right to have a common pathway to a breadth of 10 feet East-West from the said property towards the southern end of the suit property including the eastern grill gate. The said right to pass through the said common way is also part and parcel of the 1/5th share of the suit property, as a compensatory right for the lesser value of the property allotted to the plaintiff when compared with the front portion of the suit property. Therefore, the 10 feet breadth pathway can be used by the plaintiff from the northern portion allotted to him to the main road viz., Thiruvengadam Street by using the eastern grill gate. The said extent of the property allotted on the back portion and the superstructure put up therein are also allotted to the plaintiff and the plaintiff can put up temporary structures, which do not require any planning permission or sanction from the authorities so as to enjoy the properties allotted to him. 16. With the aforesaid direction, the application in A.No.1425 of 2011 is ordered and accordingly, the final decree is passed towards 1/5th share of the plaintiff. 16. With the aforesaid direction, the application in A.No.1425 of 2011 is ordered and accordingly, the final decree is passed towards 1/5th share of the plaintiff. The office is directed to prepare a plan as per the order of allotment made by the Court and to attach it with the final decree. The application in A.No.1426 of 2011 is therefore, closed. 17. In the foregoing discussion, it is found that the property is divisible and allotment of 1/5th share to the plaintiff is possible to be made in favour of the plaintiff as per the terms of the preliminary decree, the request of the defendants to value the 1/5th share of the plaintiff enabling to sell the said share to the defendants is liable to be dismissed. Accordingly, A.No. 3730 of 2011 is dismissed. 18. In fine, the application in A.No.1425 of 2011 is ordered and final decree is passed in terms of the preliminary decree in respect of the plaintiff's 1/5th share as stated above. In view of passing of the final decree, the application in A.No.1426 of 2011 is closed. The application in A.No.3730 of 2011 is dismissed.