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2014 DIGILAW 1652 (MAD)

Kannan v. Raju

2014-06-24

R.KARUPPIAH

body2014
Judgment : 1. This Civil Revision Petition has been filed to set aside the Order and decreetal Order, dated 09.02.2005, made in I.A.No.1445 of 2004 in O.S.No.306 of 2001, on the file of Additional District Munsif Court, Namakkal. 2. For the sake of convenience, the plaintiff in the original suit is referred as first respondent, the fourth defendant in the suit is referred as revision petitioner and the other defendants are referred as respondents 2 to 6 hereafter. 3. The first respondent herein filed a suit in O.S.No.306 of 2001 for partition of his 1/7 share in the suit property. The trial Court has passed a preliminary decree on 29.11.2002 and granted the relief as prayed for in the plaint. The first respondent herein filed an application in I.A.No.1115 of 2003 under Order 26, Rule 13 of CPC and prayed for to appoint an Advocate Commissioner to divide the property as per the preliminary decree and allot 1 share to the first respondent and to pass final decree accordingly. 4. In the above said application, the revision petitioner has filed a counter, in which, it is stated that only the land alone is divisible as per the preliminary decree and the super structure was constructed by the revision petitioner. It is also averred in the counter that the other sharers are entitled to share in the value of the land alone from the revision petitioner since the suit property is indivisible. It is also stated in the counter that the value of the suit property is only Rs.5000/- and therefore, the revision petitioner is ready to pay 1/7 share of value of the property Rs.714.30 to the first respondent. 5. After hearing both sides, the trial court appointed an Advocate Commissioner and the Commissioner had filed a report in which it is stated that the suit property cannot be divided, considering the extent of the suit property and therefore, the Commissioner suggested that the value of the property may be fixed by auction the property among the sharers and given the share amount to the parties. 6. The first respondent has filed an application in I.A.No.1445 of 2004 under Section 3(2) of Partition Act and prayed for to fix the value of the property and sell the same in auction and also seeking permission the first respondent to participate in the above said auction. 6. The first respondent has filed an application in I.A.No.1445 of 2004 under Section 3(2) of Partition Act and prayed for to fix the value of the property and sell the same in auction and also seeking permission the first respondent to participate in the above said auction. The revision petitioner has filed counter in the above said application, in which it is stated that the revision petitioner is ready to pay 6/7 share to other sharers and further stated that as per the plaint, value of the property is Rs.35,000/- and therefore, he is ready to pay Rs.30,000/- to the other sharers. 7. The trial court, after considering both sides submission, finally passed an order and directed the same Commissioner to bring the property to sale in auction among the sharers and sell the property on highest price and also permitted the first respondent to participate in the above said auction process. 8. Aggrieved over the above said order passed by the trial court, the revision petitioner has preferred this revision petition. 9. The learned counsel appearing for the revision petitioner submitted that the value of the property on the date of filing of the suit is Rs.35,000/- and the trial Court ought to have been taken the value given in the plaint and directed to fix the said value and no need of determination of the market value afresh on the date of sale in auction. Therefore, the learned counsel prayed for to set aside the direction given by the trial court in I.A.No.1445 of 2004. 10. Per contra, the learned counsel appearing for the contesting first respondent submitted that since the property is indivisible, the trial Court has correctly passed an order for sale among the sharers and directed the Commissioner to ascertain the value of the property on the date of sale and there is no illegality in the above said direction. 11. As rightly pointed out by the learned counsel appearing for the first respondent, value of the property to be fixed only at the time of sale in auction and not as stated in the plaint. Therefore, the trial court has correctly passed the above the said order and directed the commissioner accordingly. If the revision petitioner is ready to pay the highest amount in the above said sale, he may be permitted to take the property on such payment. Therefore, the trial court has correctly passed the above the said order and directed the commissioner accordingly. If the revision petitioner is ready to pay the highest amount in the above said sale, he may be permitted to take the property on such payment. Therefore, absolutely, there is no illegality in the above said order passed by the trial Court. The learned counsel appearing for the respondents submitted that they have no objection to allot their shares to the revision petitioner if he paid the amount as fixed by the commissioner. 12. In the result, the Advocate Commissioner appointed by the trial Court is directed to fix the market value of the property and allot the super structure potion to the revision petitioner provided if the revision petitioner is ready to pay the value of the property as fixed by the Advocate Commissioner and the revision petition is disposed of accordingly. No order as to costs.