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2012 DIGILAW 3576 (MAD)

K. Duraisamy (Deceased) v. K. Govindarajulu

2012-08-14

G.RAJASURIA

body2012
Judgment :- This appeal is focussed as against the fair and decreetal order dated 22.09.2006 passed in I.A.No.1356 of 2004 in O.S.No.539 of 1999 on the file of the Court of the Additional District Judge, Coimbatore. 2. A summation and summarisation of the germane facts absolutely necessary for the disposal of this appeal would run thus: The first respondent/Govindarajulu, the plaintiff herein filed the suit for partition as against the deceased Duraisamy, the original appellant herein and Ranganayaki/D2 herein. A preliminary decree was passed allotting shares to the effect that the plaintiff and D1/Duraisamy should take four shares each and Ranganayaki should take one share, out of the total nine shares of the suit properties comprised of three schedules, A, B and C. As against the preliminary decree, no appeal was filed. The plaintiff filed final decree application in I.A.No.1356 of 2004, whereupon an Advocate Commissioner was appointed, who with the help of a Surveyor and an Engineer, measured the suit properties and valued them and ultimately filed his report. The docket entries made by the lower Court in I.A.No.1356 of 2004, would demonstrate and exemplify that objection was not filed to the Commissioner's report by any one of the parties. It is also to be noted here that for enquiry also the original appellant/Duraisamy who was alive, did not participate. As such, the Court based on the Commissioner's report and sketch, passed the final decree specifying the portion which was suggested by the Commissioner in favour of the plaintiff. The fact remains that the deceased Duraisamy did not file any application for obtaining final decree in his favour after paying necessary Court fee. 3. Being aggrieved by and dissatisifed with the final decree passed in favour of Govindarajulu allotting shares therein, the deceased Duraisamy preferred this appeal. Pending this appeal he died. Thereafter, his L.Rs. three in number, namely his wife, son and daughter were added. 4. The gist and kernel of the grounds of appeal as put forth by the learned counsel for the appellants, could tersely and briefly be set out thus: (a) No due opportunity was given by the lower Court to file objections and participate in the proceedings. (b) The Advocate Commissioner based on the Engineer's report, simply valued the properties and based on such value, apportionment was made. (b) The Advocate Commissioner based on the Engineer's report, simply valued the properties and based on such value, apportionment was made. The Advocate Commissioner of his own accord carved out 'A' portion, 'B' portion and 'C' portion allotting; 'A' portion in favour of the deceased Duraisamy, 'B' portion in favour of the plaintiff and 'C' portion in favour of the second respondent. (c) A mere perusal of the plaint and the Advocate Commissioner's report, would show that there is no equality achieved by such apportionment. (d) The valuation ascertained by the appellants based on their Engineer's assistance, would evince and evidence that the Advocate Commissioner's reliance on his Engineer's valuation was wrong. As such the apportionment effected based on valuation by the Advocate Commissioner warrants interference. 5. In a bid to extirpate and torpedo the arguments as put forth and set forth on the side of the appellants, the learned could for the first respondent/plaintiff, would advance his arguments, which could pithily and precisely be set out thus: (a) The said Duraisamy even though was very much alive at the relevant point of time, did not choose to participate in the proceedings by filing objection to the Commissioner's report. (b) Neither oral nor documentary evidence was adduced on either side. Only before the appellate Court, he has chosen to raise all those pleas. (c) The Advocate Commissioner taking into account pro et contra and also the Engineer's report, properly valued the suit properties and as per the preliminary decree allotted shares. (d) There is no hard and fast rule that one schedule of property in the suit plaint should be allotted to one party and another schedule to another party. In all the properties or in some of the properties, certain shares could be carved out and accordingly allotted to the parties as it has been correctly done by the Advocate Commissioner. (e) In all cases it cannot be blindly held that valuation should not be the criterion for apportionment. The apparent alleged inequality that could be noticed in the maps, is nothing but based on valuation which was correctly arrived at by the Advocate Commissioner and in the absence of any objection, the appellants cannot for the first time raise such an objection before this Court. The apparent alleged inequality that could be noticed in the maps, is nothing but based on valuation which was correctly arrived at by the Advocate Commissioner and in the absence of any objection, the appellants cannot for the first time raise such an objection before this Court. (f) The learned counsel for the first respondent/plaintiff would also highlight that based on the final decree, an E.P. was filed and possession was taken and if the final decree is set aside, then what was settled would get unsettled, which may not be proper. Accordingly he would pray for the dismissal of the appeal. 6. The points for consideration are as to: (1) Whether the final decree passed by the lower Court based on the Advocate Commissioner's report, is ex facie and prima face not based on objectivity? (2) Whether the appellants should be given one more opportunity to file their objections and participate in the final decree proceedings? 7. Both the points are taken together for discussion as they are inter linked and inter woven with each other. 8. Indubitably and indisputably, unarguably and unassailably, the fact remains that based on the final decree passed by the lower Court, an E.P. was filed and the plaintiff also took possession of the shares allotted in his favour. However, the learned counsel for the appellants would convincingly point out that in the event of this Court setting aside the final decree and directing the lower Court to pass the final decree afresh, the law will take care of the situation and necessary mutatis mutandis modifications regarding possession could be effected at the execution stage. 9. A plain running of the eye over the docket entries found in the final decree application, would portray and elucidate that the original appellant Duraisamy did not virtually participate in the final decree proceedings. However, the Court cannot be found fault with on the alleged ground that no opportunity was given. The docket entries would evince and evidence that due opportunity was given, but that was not made use of by Duraisamy, for which the learned counsel for the appellants would try to explain and expound that the said Duraisamy was ailing and in fact, pending appeal he died also. 10. The docket entries would evince and evidence that due opportunity was given, but that was not made use of by Duraisamy, for which the learned counsel for the appellants would try to explain and expound that the said Duraisamy was ailing and in fact, pending appeal he died also. 10. The perusal of the records would reveal that the Advocate Commissioner virtually based on the Engineer's report valued the suit properties and keeping in mind the valuation, the apportionments were made. In such a case, as has been correctly pointed out by the learned counsel for the appellants that the Court itself should have independently applied its mind on those aspects and given its finding even in the absence of any objection having been filed by any one of the parties. Scarcely could it be stated that the Court seized of the final decree application has no powers to apply its mind and if necessary, take evidence of the petitioner atleast and the Engineer concerned and arrive at a conclusion. No doubt the Commissioner's report and plan could rightly be taken as part of Court record. But evidence is different. At the appellate stage, the miscellaneous petition under Order 41 Rule 27 of CPC is filed enclosing their Engineer's certificate relating to valuation of the properties and there is a cleavage or bottomless abyss between the two certificates so to say the Engineer Certificate filed on the side of the appellants and the Engineer who furnished the certificate to the Advocate Commissioner. There is no gainsaying or denying that unless those Engineers are examined and cross examined before the Court, the truth cannot be culled out. The fact also remains that the said Duraisamy did not also pay necessary Court fee for getting his share carved out and allotted during final decree proceedings and the learned counsel for the appellants would undertake that now the appellants as L.Rs of deceased Duraisamy would undertake that exercise also. Hence, taking into account the aforesaid points, I am of the view that one more opportunity could be given to the appellants to put forth their objection and both sides are at liberty to adduce evidence; whereupon the Court has to come to a reasoned conclusion. Hence, taking into account the aforesaid points, I am of the view that one more opportunity could be given to the appellants to put forth their objection and both sides are at liberty to adduce evidence; whereupon the Court has to come to a reasoned conclusion. As such with this in mind, the final decree passed by the lower Court is set aside and the matter is remitted back to the lower Court for carrying out the aforesaid exercise. Inorder to disambiguate the ambiguity, if any, I would like to observe that simply because the final decree is hereby set aside, possession of the properties already taken by the plaintiff need not be disturbed. Depending upon the fresh final decree which is going to be passed, suitable corresponding orders could be passed by the Court concerned for mutatis mutandis modification if any. The lower Court shall do well to see that the matter is disposed of within a period of four months from the date of receipt of a copy of this order. Accordingly, this appeal is disposed of. No costs. Consequently, connected miscellaneous petition is closed.