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2017 DIGILAW 668 (KER)

P. SABIDADEVI v. P. SUKHADEV

2017-04-05

B.KEMAL PASHA

body2017
JUDGMENT : In this suit for partition, the plaintiff was allotted with 1/3rd share, the first defendant was allotted with 1/3rd share and the 2nd defendant was also allotted with 1/3rd share from a property having an extent of 11.16 cents. The said property is situated in the heart of the Kozhikode city and it is a valuable property. 2. The first defendant, who is the first respondent herein, is a police officer, who is on leave, and he is gainfully employed in gulf. Being the eldest one, he denied shares from the property to his sole sister, who is the plaintiff, and his younger brother, who is the 2nd defendant. Finally, the sister had to approach the court through a suit in the year 2002 for partition. The 2nd defendant also travelled along with the plaintiff. 3. Even though the first defendant had forwarded several claims with regard to the property, all those claims were rejected and the preliminary decree became final. Thereafter, the plaintiff has been clamouring for the passing of the final decree. In the final decree proceedings Ext.C1(a) plan was initially prepared. The same was objected to. Thereafter, Ext.C2(a) plan also came. The same was also objected to. Consequently, the Munsiff's Court-I, Kozhikode had ordered for the auction of the property among the sharers for making the payment through owelty. An auction was conducted. It is a fact that the first defendant did not participate twice in the auction, and finally the auction was conducted and that was fixed in favour of the plaintiff whereby the plaintiff bid the property in auction for a total amount of Rs. 6,23,170/-. The said amount was deposited by the plaintiff and consequently a sale certificate was also issued. 4. Challenging the said order, the first defendant went up in appeal as A.S.No.155/2009 before the Subordinate Judge's Court, Kozhikode. The Subordinate Judge's Court, Kozhikode, by disregarding all the earlier proceedings, passed a curious judgment whereby the Subordinate Judge's Court has accepted Ext.C2(a) plan and a final decree was passed based on Ext.C2(a) plan. Plots A and A1 having an extent of 3.51 cents has been allotted to the plaintiff, plots C and C1 is allotted to the share of the 2nd defendant, and Plot B in Ext.C2(a) plan is allotted to the share of the first defendant. Plots A and A1 having an extent of 3.51 cents has been allotted to the plaintiff, plots C and C1 is allotted to the share of the 2nd defendant, and Plot B in Ext.C2(a) plan is allotted to the share of the first defendant. For equalization of the shares, the first defendant was ordered to pay an amount of Rs. 4,30 990/- to the plaintiff and an amount of Rs. 87,430/- to the 2nd defendant. 5. Aggrieved by the aforesaid final decree and judgment passed by the lower appellate court in A.S.No.155/2009, the plaintiff along with the 2nd defendant have come up in second appeal. This Court admitted this second appeal on the following substantial questions of law raised in the memorandum of appeal: "(1) Whether the lower appellate court was justified in law in setting aside the order passed by the trial court directing the auction of the property among the shares in view of the reports of the Commissioner that the property cannot be divided in equal shares among the shares? (2) Whether the court is not bound to accept Ext.C3 report that the Commissioner has stated that the property cannot be divided in 3 equal shares?" 6. Heard the learned counsel for the appellants and the learned counsel for the respondent. 7. The learned counsel for the respondent has claimed that the respondent is entitled to have the equitable relief of getting the building situated in the property. At the same time, the learned counsel for the appellants has pointed out that the respondent is a police officer and he is on leave, and he has been working in the gulf for the last many years. The said fact is evident from the impugned judgment passed by the lower appellate court, which shows that the first defendant had even preferred the appeal through his power of attorney holder. Even though the learned counsel for the respondent has argued that the first defendant has no building of his own and therefore, he is in dire need of the building in the plaint schedule property, it has clearly come out even from the preliminary judgment that the building in the property has been rented out by the first defendant. The first defendant or his family members are not occupying the building in the scheduled property; whereas, he has conveniently rented it out and has been remaining in gulf. The first defendant or his family members are not occupying the building in the scheduled property; whereas, he has conveniently rented it out and has been remaining in gulf. Therefore, the first defendant is not entitled to any preferential treatment in respect of the building. At the same time, it has been pointed out that the 2nd defendant has no building of his own, and he is residing in a rented building. Therefore, it has been argued that he is in dire need of a plot of property for putting up a residential building for him to reside. 8. From Ext.C1(a) as well as Ext.C2(a) it has clearly come out that the old building situated in the plaint schedule property is a stumbling block in having a proper division of the property into three shares. Ext.B15 is letter dated 21.10.1996 sent by the first defendant to the plaintiff in which, the first defendant has clearly admitted that the said building was in a dilapidated stage and the said building was a very old building which was construed in the year 1973 by making use of old materials. It is true that the Commissioner has presently valued the said building for an amount of Rs. 1,50,000/-. Considering the nature of the building and the present stage of the building, this Court is of the view that the said value fixed by the Commissioner is an exaggerated one and it does not reflect the actuals. 9. The learned counsel for the appellants has pointed out that in case the building is demolished and a division of the property is made, each one of the sharers will get a plot having an extent of 3.72 cents. On hearing either side, this Court is of the view that the very old building, which is in a dilapidated stage is a stumbling block in having a proper division. I am of the view that either the property as well as the building should be sold in auction or the property has to be divided into three equal plots, by considering as if the building is not at all in existence in the property. On hearing either side, it has come out that the second course of action is the one that can be preferred. 10. On hearing either side, it has come out that the second course of action is the one that can be preferred. 10. Even the learned counsel for the appellants has pointed out that the amount for which auction has been fixed in favour of the plaintiff is too low and that the property will fetch a very high amount considering the importance of the locality in which it is situated. Therefore, this Court is of the view that the whole approach made by the Munsiff's Court as well as the lower appellate court are not correct and therefore, the same are liable to be set aside. The auction fixed in favour of the plaintiff is liable to be set aside. 11. The only way out at present is to have a division of the property including the whole building in to three equal plots by considering as if the old building is not at all in existence in the property. The persons to whom such plots are allotted can either make use of that portion of the old building coming within their respective plots or to demolish that structures coming within their respective plots. In the result, this Second Appeal is allowed and the auction conducted by the Munsiff's Court-I, Kozhikode as well as the final decree and judgment passed by the lower appellate court are set aside. The Munsiff's Court-I, Kozhikode is directed to appoint a Commissioner to have the division of the whole property having an extent of 11.16 cents into three equal plots, disregarding the building in the property. Such division has to be conducted by considering as if there is no building in the property. It is made clear that the persons to whom such plots are allotted, shall either make use of that portion of the building comes within their respective plots or to demolish the same. The building need not be valued at all. The matter being an old one, the court below shall dispose of it expeditiously, at any rate, within a period of three months from the date of appearance of the parties before the court below. The parties shall appear before the Munsiff's Court-I, Kozhikode on 22-06-2017. In the nature of this appeal, the parties shall bear their respective costs. All interlocutory applications in this appeal are closed.