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2012 DIGILAW 3352 (MAD)

Chinnappan v. Ponnagounder(died)

2012-07-30

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the dated 7.3.2012 passed by the District Munsif, Mettur, in I.A.No.874 of 2010 in O.S.No.238 of 2010, this civil revision petition is filed. 2. A thumbnail sketch of the germane facts absolutely necessary for the disposal of this revision, in a few broad strokes can be encapsulated thus: (i) The learned counsel for the revision petitioner herein would echo the cri de coeur of his client to the effect that his client is the 5th petitioner/5th plaintiff in the final decree application for getting the property divided into two equal shares, as per the preliminary decree. Whereas, the trial Curt appointed an Advocate Commissioner and passed the following order: "In the result Thiru M.Kumarasamy Advocate Mettur is appointed as commissioner. The Commissioner is directed to visit the suit property and identify the portions of land that are in actual enjoyment of petitioners and respondents. Thereafter the commissioner shall divide and demarcate the same into two equal shares in a way that the petitioners and respondents are getting their lands which are in their actual possession as far as possible. The commissioner shall take the assistance of village administrative officer and surveyor to identify and measure the lands. The remuneration for the commissioner is fixed at Rs.4000/- out of which a sum of Rs.2000/-has to be paid now and remaining sum of Rs.2000/- shall be paid on filing the report by the commissioner. For commissioners report and sketch call on 11.4.2012." (extracted as such) (ii) Taking exception to the observation made by the trial Court that the Commissioner shall divide and demarcate the property into two equal shares in a way that the petitioners and respondents are getting their lands which are in their actual possession as far as possible, the learned counsel for the petitioner would pyramid his arguement that such direction will certainly work injustice to the petitioner, because the suit property is an agricultural land adjacent to the road, which the defendants are enjoying, whereas, the plaintiffs are enjoying a portion of the land in a different place, which is located in the interior part of the village. 3. I would like to clarify that the said direction given by the trial Court to the Commissioner can never be taken as an order passed by the lower Court finally. The lower Court simply expressed its view tentatively to the Commissioner. 3. I would like to clarify that the said direction given by the trial Court to the Commissioner can never be taken as an order passed by the lower Court finally. The lower Court simply expressed its view tentatively to the Commissioner. It is a settled procedure, as per law, that after submission of the Commissioner's report, the parties to the lis are entitled to file objections to it and at that time, the Court in a unbiased manner has to decide the objections and there is no hard and fast rule that a sharer in possession of a specific portion of the suit property should necessarily be given with that portion only. 4. With the above clarification, the civil revision petition is disposed of. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.