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2022 DIGILAW 3092 (MAD)

Palanisamy v. Nachammal (Died)

2022-09-02

C.V.KARTHIKEYAN

body2022
JUDGMENT (Prayer: The Second Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree made in A.S.No.36 of 2001 dated 09.02.2010, on the file of the Subordinate Judge at Udumalpet confirming the Judgment and Final Decree in I.A.No.1053 of 1996, I.A.No.1231 of 1996 and I.A.No.1232 of 1996 in O.S.No.291 of 1996 dated 11.02.1997, on the file of the District Munsif Court at Udumalpet.) 1. The 1st defendant in O.S.No.291 of 1996 on the file of the District Munsif Court at Udumalpet, is the appellant herein. 2. The Second Appeal had not been admitted. Notice had been directed to the respondents and learned counsels had entered appearance. In the meanwhile, the 1st and 2ndrespondents had also died and their legal representatives had been brought on record. 3. O.S.No.291 of 1996 had been originally instituted as O.S.No.221 of 1978, before the Sub Court at Uduamalpet. The suit was filed by a sister against her brother and another sister, who had been shown as the 1st and 2nddefendants. The brother Palanisamy is the appellant before this Court. 4. The suit had been filed seeking partition and separate possession of the suit properties which had been described as Schedule ‘A’ and Schedule ‘B’ to the plaint and also for mesne profits. 5. The plaintiff claims that she is entitled for an undivided 1/6th share in ‘A’ Schedule property and an undivided 1/3rd share in ‘B’ Schedule property. She claimed that she was also entitled for a share in the income which is derived from the said properties during the pendency of the litigation. 6. The litigation has been pending from the year 1978 to till this date, nearly about 45 years. 7. By Judgment dated 30.08.1980, a preliminary decree had been passed even when the suit was having the nomenclature as O.S.No.221 of 1978. 8. By the preliminary decree, it had been declared that except item No.1 in the plaint ‘A’ Schedule property, the plaintiff was entitled to an undivided 1/6th share in the other properties in ‘A’ Schedule and the 1st defendant was entitled to an undivided 4/6th share and the 2nd defendant/another sister was entitled to a reminder 1/6th share. 9. 8. By the preliminary decree, it had been declared that except item No.1 in the plaint ‘A’ Schedule property, the plaintiff was entitled to an undivided 1/6th share in the other properties in ‘A’ Schedule and the 1st defendant was entitled to an undivided 4/6th share and the 2nd defendant/another sister was entitled to a reminder 1/6th share. 9. It was also stated that the plaintiff was entitled for mense profits from the date of the suit namely 28.08.1978, till delivery of possession and the calculation of the same had been relegated to proceedings under Order 20 Rue 12 of the Code of Civil Procedure. 10. Thereafter, I.A.No.1053 of 1996 came to be filed for appointment of an Advocate Commissioner to actually effect division of the properties and also filed I.A.Nos.1231 of 1996 and 1232 of 1996 were filed under Order 20 Rule 12 of the Code of Civil Procedure to determine the mesne profits. 11. Objections were also filed by the 1st respondent/1st defendant/appellant herein/brother. 12. A Report of an Advocate Commissioner had been presented and thereafter, Judgment was passed which can be termed as a final decree Judgment on 11.08.1997. 13. In the meanwhile, the suit in O.S.No.221 of 1978 had migrated from the Sub Court at Udumalpet to the District Munsif Court at Udumalpet, owing to the increase in the pecuniary jurisdiction of the Munsif Courts. It was re-numbered as O.S.No.291 of 1996. 14. Questioning that particular Judgment, First Appeal in A.S.No.36 of 2001 came to be filed, before the Sub Court at Udumalpet. 15. By Judgment dated 09.02.2010, the learned Sub Judge, Udumalpet, dismissed the appeal and confirmed the findings of the Trial Court. 16. It had been observed by the learned Sub Judge, Udumalpet, in the course of Judgment which was delivered in the year 2010, that the parties have been at lis for nearly 30 years, but could not reach any finality. I must add a further 15 years to that, as on time period. 17. It had also been observed that repeated efforts had been initiated for amicable settlement but again, such steps could not fructify and the parties remained and retained their acrimonious and adversal stand. 18. In the said Judgment, a decree was granted for mesne profits at Rs.6,000/- per year, which is 1/6th share of the annual income, which had been determined at Rs.36,000/-. 19. 18. In the said Judgment, a decree was granted for mesne profits at Rs.6,000/- per year, which is 1/6th share of the annual income, which had been determined at Rs.36,000/-. 19. Questioning the Judgment of the First Appellate Court, the present Second Appeal had been filed. 20. The Second Appeal had not yet been admitted. 21. Heard arguments advanced by Mrs.Hema Sampath, learned Senior Counsel for Mr.D.R.Arunkumar, on behalf of the appellants and Mr.N.Thiagarajan, learned counsel for the 3rd to 6th and 8th respondents and Mr.R.Ashokar, learned counsel for the 7th respondent. 22. During the course of arguments before this Court an endeavour was made to impress that the Commissioner who had been appointed during the final decree proceedings had actually divided the various lands in accordance with the ratio determined under the preliminary decree and a detailed plan had also been submitted. It was however pointed out by the learned counsels for the respondents that such division required re-visitation by this Court. 23. It was also stated that the plan the plaintiff presented was of the year 1982 and the lay of the land had much altered and therefore, it was urged that a fresh visitation by the Advocate Commissioner is required to actually divide the lands. 24. It was pointed out that some of the divisions indicate that half of the land would be on one side of a road and another half of the land on the other side of the road. These would cause much hardship and difficulties to the parties. 25. It was also insist by the learned counsel for the respondents that some provision was made for deposit of mesne profits and it is complained that from the year 1978 onwards, mesne profits had not been paid even though, there is no stay, of the Judgment of the First Appellate Court. However, it is uniformly contended that it would be the interest of all the parties, that a fresh Advocate Commissioner is appointed to have a fresh look on the division of the properties. 26. However, it is uniformly contended that it would be the interest of all the parties, that a fresh Advocate Commissioner is appointed to have a fresh look on the division of the properties. 26. Without entering into any further discussion on the merits of the case, but primarily retaining the shares as determined during the preliminary decree proceedings namely 1/6th share for the plaintiffs/legal representatives, 4/6th share for the 1st defendant/legal representatives and 1/6th share for the 2nd defendant/legal representatives, I would direct appointment of a fresh Advocate Commissioner to re-examine the division of the properties and present such plan before the First Appellate Court namely the Sub Court at Udumalpet. 27. Across the bar, the name of Thiru.K.Subramanian, Advocate having address at No.7, Appavoo Street, Udumalpet, Tiruppur District- 642126, had been suggested and it is presumed that the learned counsels would have also obtained his consent to act as an Advocate Commissioner to divide the suit schedule lands in effect into the aforementioned shares. 28. I fervently hope that the parties to the litigation, namely, the legal representatives of the plaintiff/1st and 2nd defendants and their respective counsels would co-operate and ensure that an amicable suggestion is reached with respect to the division of the properties. 29. The Judgment of the First Appellate Court is therefore set aside. The matter is remanded back to the First Appellate Court, Udumalpet. The First Appellate Court, namely the Sub Court at Udumalpet may appoint Thiru.K.Subramaniam, learned counsel as an Advocate Commissioner and issue warrant to him to divide the lands in accordance with preliminary decree already passed in the suit. With respect to mesne profits, it had been determined at Rs.36,000/- per annum and the shares had been framed out accordingly. 30. It is the grievance expressed before this Court, by the learned counsel for the respondents that the appellant herein/1st defendant/legal representatives of the 1st defendant had not paid even a single amount towards the mesne profits which liability accrued from the year 1978 onwards. 30. It is the grievance expressed before this Court, by the learned counsel for the respondents that the appellant herein/1st defendant/legal representatives of the 1st defendant had not paid even a single amount towards the mesne profits which liability accrued from the year 1978 onwards. Therefore, I would call upon the First Appellate Court/Sub Judge, Udumalpet to place it as a pre-condition for the 1st defendant/legal representatives of the 1st defendant, to pay the aforesaid amount to the legal representatives of the plaintiffs and the legal representatives of the 2nd defendant, the arrears of mesne profits at Rs.6,000/- per year and if there is any doubt as to which of the legal representatives should be paid, the amount must be deposited before the Court. Thereafter, the First Appellate Court may issue warrant to the Advocate Commissioner to effect actual division of the properties. It is hoped that the same would be done in the presence of all the parties and also their respective advocates and an effective division of the properties was put in effect. 31. In view of the fact, that the land is spread across different areas and there are patches of land at separate places, it would only be appropriate that the learned Sub Judge, Udumalpet would also issue directions of the Tahsildar, Udumalpet and direct the Registered Surveyor attached to the Office of the Tahsildar to be present and assist the Advocate Commissioner ineffective actual division of the properties into 6 equal parts and allot one part to the legal representatives of the plaintiffs, one part to the legal representatives of the 2nd defendant and 4 parts to the legal representatives of the 1st defendant. 32. In case, equal division is not possible, then, I am confident that the learned Sub Judge, Udumalpet would apply the law of the land namely to compensate in moneys worth the value of the land which had fallen short. 32. 32. In case, equal division is not possible, then, I am confident that the learned Sub Judge, Udumalpet would apply the law of the land namely to compensate in moneys worth the value of the land which had fallen short. 32. It is hoped that this exercise would be completed and in view of the fact that the appeal itself had been pending before this Court without being admitted, it may not be appropriate on the part of this Court to fix any time limit but I leave it to the wisdom of the learned Sub Judge, Udumalpet to endeavor to dispose of I.A.Nos.1053 of 1996, 1231 of 1996 and 1232 of 1996 in O.S.No.291 of 1996, which are now the subject matter of A.S.No.36 of 2001 within a reasonable period of time. 33. Without entering into a detailed discussion on the facts and but retaining the preliminary decree, the Judgment of the First Appellate Court in A.S.No.36 of 2001, dated 09.02.2010 is set aside. The matter is remanded back to the First Appellate Court for fresh consideration in accordance with directions as aforementioned. The Second Appeal stands allowed. Registry is directed to forward back the records to the First Appellate Court, Udumalpet. No costs. Consequently, the connected Miscellaneous Petitions stands closed.