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2014 DIGILAW 855 (MAD)

Narayanan v. Mohan

2014-04-07

S.MANIKUMAR

body2014
Judgment : 1. Being aggrieved by the judgment and decree dated 19.04.2013 passed in A.S.No.39 of 2012 on the file of the learned Subordinate Judge, Mannargudi, the present appeal has been filed. 2. Material record discloses that a suit in O.S.No.75 of 2003 has been filed on the file of the learned District Munsif, Thiruthuraipoondi for partition. Preliminary Decree passed has remained unchallenged. I.A.No.208 of 2008 has been filed for appointment of an Advocate Commissioner to measure the suit property, with the help of Surveyor, as per the terms of the Preliminary Decree. The learned Advocate Commissioner has visited the suit property, divided the same, into three equal shares, and filed his report on 23.07.2009. However, the learned Advocate Commissioner did not furnish the measurements of shares, apportioned. Being aggrieved by the order and decreetal order passed by the trial Court in I.A.No.208 of 2008 on the file of the learned District Munsif, Thiruthuraipoondi, A.S.No.39 of 2012 has been filed. The Appellate Court has framed the following point for consideration, that whether the trial Court was right in proceeding with the Final Decree, solely based on the report of the Advocate Commissioner, when admittedly, measurements have not been given in the report. While considering the report submitted and the documents produced, the lower Appellate Court, by observing that the report did not contain the measurements, deemed it fit to allow the appeal, by setting aside the Final Decree in I.A.No.208 of 2008, dated 29.10.2009 and remanded the matter to the learned District Munsif, Thiruthuraipoondi, with a direction to the trial Court, to direct the learned Advocate Commissioner, appointed in I.A.No.208 of 2008, to visit the suit property and submit his report and plan, along with the specific measurements of allotment, to the respective parties, in terms of the Preliminary Decree. The Appellate Court has further directed that after receipt of the Advocate Commissioner's report and plan, the trial Court shall afford opportunity to the parties to submit their objections and dispose of the Final Decree application, within two months. 3. Though the said judgment and decree, is assailed in the present appeal on several grounds, this Court is not inclined to interfere with the same. Apparently, the learned Advocate Commissioner who submitted his report and plan, had failed to mention the specific measurements of the shares apportioned, as per the terms of the Preliminary Decree. 3. Though the said judgment and decree, is assailed in the present appeal on several grounds, this Court is not inclined to interfere with the same. Apparently, the learned Advocate Commissioner who submitted his report and plan, had failed to mention the specific measurements of the shares apportioned, as per the terms of the Preliminary Decree. During the course of argument, Mr. A.Muthukumar, learned counsel for the appellant submitted that the learned Advocate Commissioner, who inspected the suit property and submitted the report, is no more. 4. Having regard to the above said submission of the learned counsel, the only modification, which required to be made in the judgment and decree of the lower Appellate Court in A.S.No.39 of 2012 dated 19.04.2003 is that the trial Court may appoint another Advocate Commissioner to inspect the suit property and submit his report and plan, with specific measurements of allotment to the parties, in terms of the Preliminary Decree. 5. With the above modification in the judgment and decree in A.S.No.39 of 2012 dated 19.04.2013 on the file of the Subordinate Judge, Mannargudi, the present Civil Miscellaneous Appeal is disposed of. The other directions, to provide opportunity to the parties to make objections would remain intact. No costs. Consequently, connected Miscellaneous Petition is closed.