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2013 DIGILAW 599 (MAD)

S. Saravana Arul v. A. D. Senthureswaran

2013-01-28

VINOD K.SHARMA

body2013
JUDGMENT 1. This application has been filed under Order XIV Rule 8 of O.S. Rules r/w Order XXVI Rule 9 of the Code of Civil Procedure r/w Section 3 of Partition Act for passing a final decree in the above suit by allotting 2/3rd share to the applicant by metes and bounds based on the Advocate Commissioner's report. 2. The applicant filed a suit for partition against defendants/respondents and preliminary decree was passed on 25.02.2011. The plaintiff/applicant was held entitled to separate possession of 2/3rd share in the suit property. 3. It is submitted, that in pursuance to the preliminary decree, the suit property was divided by metes and bounds, by allotting 2/3rd share to the applicant. 4. The necessity, therefore arose to appoint an Advocate Commissioner to inspect the property for dividing it by metes and bounds, by allotting 2/3rd share to the applicant. It is also submitted, that final decree to be passed in terms of the report by the Advocate Commissioner. 5. In A.No.4155 of 2011, Advocate Commissioner was appointed to divide the property to 3 equal shares for allotting 2/3rd share to the plaintiff/applicant by metes and bounds. 6. The Advocate Commissioner has submitted her report, which reads as under: "I, D.Rajalakshmi, having office at The Women Lawyer Association, High Court, Chennai submits as follows; 1. I submit that, this Hon'ble Court was pleased to issue warrant as follows, "Warrant in A.No.4155 of 2011 in C.S.No.144 of 2007 as to inspect the suit property and divide the same into 3 equal shares and to allot 2/3rd share to the applicant by means & bounds with the help of the qualified Engineer and to file report with detailed plan". 2. I submit that, after receiving the warrant, I issued notice to the counsel's for Applicant/Plaintiff (Mr.G.Karthikeyan), Respondent/Defendants 1,2,3 (M.Vellaisamy), by letter dated 27.03.2012, 4th Respondent in person (Mrs.Vanitha) by letter dated 28.03.2012. I further submit that as per the warrant, I instructed the Qualified Engineer (Mr.G.Chellaiah Sarathy) to assist me in execution of the warrant. Accordingly I fixed the date for my inspection on 31.03.2012 at 10.30 a.m. and receive my fees from the applicant's counsel. Neither the Learned counsel nor the Respondent's 1,2,3 were present on that day. I further submit that as per the warrant, I instructed the Qualified Engineer (Mr.G.Chellaiah Sarathy) to assist me in execution of the warrant. Accordingly I fixed the date for my inspection on 31.03.2012 at 10.30 a.m. and receive my fees from the applicant's counsel. Neither the Learned counsel nor the Respondent's 1,2,3 were present on that day. The Learned counsel for the Applicant and the 4th respondent, the officer's of the 4th respondent were present in the suit premises on 31.03.2012 at 10.45 a.m. and I proceeded with the warrant along with the help of a Qualified Engineer (Mr.G.Chellaiah Sarathy). 3. I submit that, the inspection started at about 10.45 a.m. and completed at 1.30 p.m. I submit that, the petition premises is facing North and it is bounded. North by - Saravana Stores Thangamaligai West by - House South by - Magesh Street East by - Usman Road Running North to South on Eastern Side - 58 feet North to South on Western Side - 64 feet East to West on Northern Side - 120 feet East to West on Southern Side - 121 feet In total the property measures 7347 sq.ft. At the time of inspection, the engineer measured the property and the sketch and the report prepared by him is enclosed along with this report. I submit that, on inspecting the property it is found that the property can be divided as 1/3 and 2/3 in the following manner 1/3 Share: From the back side of the property (i.e) Western side 2449 sq.ft. shall be divided as North to South on Eastern Side - 64 feet North to South on Western Side - 64 feet East to West on Northern Side - 38.8 feet East to West on Southern Side - 39.1 feet And the building attached to the above portion is constructed separately and the building stated above does not have any connection with the front portion. There is a separate entry for this above said portion which is in existence through Mahesh Street. 2/3 Share: From the front side of the property (i.e) Eastern side 4898 sq.ft. There is a separate entry for this above said portion which is in existence through Mahesh Street. 2/3 Share: From the front side of the property (i.e) Eastern side 4898 sq.ft. shall be divided as North to South on Eastern Side - 58 feet North to South on Western Side - 64 feet East to West on Northern Side - 81.4 feet East to West on Southern Side - 81.11 feet And the building attached to the above portion is constructed separately and the building stated above does not have any connection with the back portion. There is a separate entry for this above said portion which is in existence through Usman Road. I am of the opinion that by putting a wall in between, the 2/3rd share can be separated without disturbing the construction in 1/3rd share of the above said property. I submit that, herewith I am returning the warrant along with the engineer's sketch and report. Hence I pray that this Hon'ble Court may be pleased to accept the above report and thus render justice." 7. The respondent nos.1 to 3 have filed objection to the report of the Advocate Commissioner, by submitting, that in response to the notice by the Advocate Commissioner, it was pointed out that the respondents will not be available on the date fixed, therefore, fresh date be fixed on some future date. 8. The report is also challenged being one sided, therefore, prayer is made to appoint fresh Advocate Commissioner, who may divide the property after notice to all the parties. 9. The objections are totally misconceived and do not make out any case for setting aside the report of Advocate Commissioner. 10. The objections have also been filed to the valuation report by the Special Counsel for CBI Cases, Chennai. It is submitted, that the respondent nos. 1 & 3 are accused in a criminal case in C.C.No.9 of 2001, which is pending trial before the learned XII Additional Sessions Judge and Special Judge for CBI Cases, Chennai, for the offence under Section 13(2) r/w 13(1)(e) of PC Act, 1988 and Section 109 of IPC. The allegations are that respondent no.3 has acquired property disproportionate to his known source of income, and respondent no.1 had abetted the offence. 11. The allegations are that respondent no.3 has acquired property disproportionate to his known source of income, and respondent no.1 had abetted the offence. 11. In view of the order passed by the learned Principal Judge for CBI Cases, the property in question was ordered to be attached and the order of attachment was made absolute on 20.07.2004. The appeal against the order of attachment was also dismissed. 12. It is also pleaded case, that the plaintiff/applicant has filed a petition in the above appeal to implead himself as party on the plea, that he entered into agreement of sale executed with respondent nos.1 & 3, i.e. accused 1 & 2 in the criminal case, and thereafter purchased the property for consideration for Rs.1,42,00,000/- (Rupees One Crore Forty Two Lakhs only) by way of registered sale deed dated 04.06.2004. 13. It is submitted, that the plaintiff/applicant had entered into the agreement inspite of order of attachment. Therefore, the agreement for sale is void and unsustainable in law, and that undivided shares cannot be divided without consent of the parties and furthermore, the property has not been valued properly. 14. It is the case of CBI, that the report of Engineer shows, that the property in question has got first floor and second floor and both the floors are located as detailed in the Advocate Commissioner's report. It is submitted, that the Advocate Commissioner has ignored the constructed area while submitting her report. 15. That 1/3 share demarcated by the Advocate Commissioner on the back side of the property in question is of lesser value compared to the 2/3rd share which is on the front side of the property. 16. Learned counsel appearing on behalf of the parties agreed, that 2/3rd area demarcated by the plaintiff is of higher value than 1/3rd area meant for respondents/defendants. It was agreed between the parties that the plaintiff/applicant will therefore pay a sum of Rs.1,00,00,000/-(Rupees One Crore only) to respondent nos.1 to 3 in view of valuation of the areas as demarcated by the Advocate Commissioner, referred to above. 17. It was agreed between the parties that the plaintiff/applicant will therefore pay a sum of Rs.1,00,00,000/-(Rupees One Crore only) to respondent nos.1 to 3 in view of valuation of the areas as demarcated by the Advocate Commissioner, referred to above. 17. Keeping in view the pending case, it was also agreed between the parties, that a sum of Rs.1,00,00,000/- (Rupees One Crore only) will be deposited by the plaintiff, in this case to the credit of suit for being paid to the parties so entitled to after the decision of the criminal case pending against respondent 1 & 3. 18. In view of the stand taken by the respective parties, this application is ordered. The plaintiff/applicant is held entitled to 2/3rd share as demarcated by the Advocate Commissioner noticed herein above, subject to payment of Rs.1,00,00,000/- (Rupees One Crore only) to respondent nos.1 to 3, which is directed to deposited in this Court to the credit of the suit with right to the party, held entitled, to claim the amount on decision by the criminal case in C.C.No.9 of 2001, pending in the Court of learned XII Additional Sessions Judge and Special Judge for CBI Cases, Chennai. 19. No costs.