In the High Court of Judicature at Madras
Dated:25.01.2007
Coram
The Honourable Mr.Justice A.C.ARUMUGAPERUMAL ADITYAN
Second Appeal No.393 OF 1997
V.Gunasekara Mudaliar ....Appellant
vs.
1. M.Mohan
2. M.Arumugham
3. M.Sampath
4. Karpagambal ..Respondents
Second appeal filed against the judgment and decree
dated 25.11.1996 made in A.S.No.108 of 1994 on the file of
court of Principal District Judge, North Arcot District,
Vellore, confirming the decree and Judgment dated
14.12.1993 in I.A.No.708 of 1990 in O.S.No.56 of 1989 on
the file of Sub Court, Vellore.
For Appellant : Mr.S.Balasubramanian
For Respondents : Mr.Thiruchy R.Thiagarajan.
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JUDGMENT
This appeal has been preferred against the Judgment and
decree in A.S.No.108 of 1994 on the file of the Court of
Principal District Judge, Vellore. The appellant is the
plaintiff in O.S.No.56 of 1989 on the file of the Court of
Subordinate Judge, Vellore.
2. The suit was filed for partition of plaintiff’s
1/3rd share in the plaint schedule property. A preliminary
decree for partition was passed allotting 1/3rd share to the
plaintiff and the remaining 2/3rd share in the suit property
to the defendants. Against the passing of the preliminary
decree, there was no appeal preferred by the parties and
thus it become final. A petition for passing of final decree
was filed in I.A.No.708 of 1990 in O.S.No.56 of 1989, and a
Commissioner was appointed and he filed Ex C1 report and Ex
C2 plan. The plaintiff has filed objections to the
Commissioner’s report stating that a frontage of 4 feet
alone was given to him on the southern side,but it will be
inconvenient for him to enjoy his 1/3rd share which is an
extent of 4 feet x 24 feet in the plaint schedule property.
According to the plaintiff, it can be used only as a
pathway and he cannot enjoy his share which is situated in
the suit property conveniently.
3. The learned trial Judge considered the objections
filed by the plaintiff in accordance with Ex C1 and Ex C2
and after rejecting the objections made by the plaintiff,
passed final decree in terms of the preliminary decree and
in accordance with Ex C1 report and Ex C2 plan. Aggrieved
by the findings of the learned trial Judge, the plaintiff
has preferred an appeal in A.S.NO.108 of 1994 before the
learned first appellate Judge. The learned first appellate
Judge also considered the objections made by the plaintiff
and ultimately held that there is no valid ground in the
appeal and consequently dismissed the appeal confirming the
judgment and final decree passed by the lower Court without
costs. Aggrieved by the findings of the first appellate
Court in A.S.No.108 of 1994, this second appeal has been
preferred by the plaintiff.
4. The substantial questions of law involved in this
appeal are
“1. Whether the judgment and decree of
the Courts below are legally sustainable
inasmuch as they have not properly
interpreted the sale deed dated
5.10.1981 in favour of the appellant,
wherein the appellant has purchased
1/3rd share in the property?
2. Whether the judgment and decree of
the Courts below are legally sustainable
inasmuch as it has accepted the mode of
division of the property as given by the
Commissioner without consideration of
the appellant for the same?
3. Whether the judgment and decree of
the Courts below are legally
sustainable inasmuch as they rejected
the application filed by the appellant
under Section 2 of the Partition Act?
4. Whether the judgment and decree of
the Courts below are legally sustainable
inasmuch as they have not considered the
aspect of convenient enjoyment of the
property, when allotting 1/3rd share?
5.The Points:
With regard to the allotment of 1/3rd share in the final
decree, there is absolutely no objection raised by the
parties. Only with regard to the mode of partition, the
plaintiff has filed objection before the trial Court stating
that the allotment of 1/3rd share by the learned
Commissioner on the western side towards the share of the
plaintiff is not convenient for enjoyment. According to the
plaintiff, 4 feet allotted on the southern side in his 1/3rd
share is hardly insufficient to enjoy his 1/3rd share and it
can be used only as a passage. Along with the objection, the
plaintiff has filed a plan which shows that the plaintiff
should be allotted 6 feet frontage on the southern side in
the 1/3rd share allotted to him and remaining 6 feet is to
be allotted to the defendants. The plaintiff has suggested
that while allotting six feet on the southern side towards
his 1/3rd share , the total length on the north south
direction may be reduced from 24 feet to 16 feet. The
learned trial Judge, while passing final decree has
considered the said objections raised by the plaintiff, but
rejected the same on the ground that the Commissioner has
allotted 1/3rd share of the plaintiff on the western side
with a measurement of 4 feet x 24 feet. The Commissioner
has stated in his report Ex C1 that when plaint schedule
building was measured on the east west, inclusive of two
walls on each side, the east west measurement comes to 14
feet. But he had a doubt as to whether the walls on either
sides exclusively belongs to the plaintiff and the
defendants or is a common wall belonging to the parties to
the suit on the one hand and neighbouring shop owners, who
are having shops on both sides of the suit properties on the
other hand. That is why the east west measurement in the
suit property has been taken as 12 feet excluding the walls
on both sides and the Commissioner has allotted 4 feet
towards 1/3rd share of the plaintiff on the east west
direction and remaining 8 feet was allotted towards 2/3rd
share of the defendants on the east west. Taking into
consideration, the objections filed by the plaintiff, the
learned trial Judge has observed at paragraph 7 of his
Judgment that as per Ex A1 sale deed the plaintiff is
entitled to only 1/3rd share in the suit property. So he
will be entitled to 4 feet width on the east west direction
and the remaining 8 feet is to be allotted only to the
defendants towards east west on the south. This has been
considered by the Commissioner and accordingly, he has
allotted the due shares of the parties with the above said
measurement of 4 feet x 24 feet to the plaintiff towards his
1/3rd share, 8 feet x 24 feet to the defendants towards
their 2/3 share . The trial Court is of the firm view that
if 6 feet is allotted to the plaintiff towards his 1/3rd
share on the southern side, it will be affecting the
frontage of the defendants and the said loss cannot be
compensated when allotting more area for the defendants in
the backyard of 1/3rd share allotted to the plaintiff. The
appeal preferred by the plaintiff in A.S.No.108 of 1994 was
also dismissed on the same ground mentioned in the final
decree. Under such circumstances, I do not find any reason
to interfere with the well considered Judgment of the first
appellate Court in A.S.No.108 of 1994 on the file of the
Court of Principal District Judge, Vellore.
6. In fine, the appeal is dismissed confirming the
decree and Judgment in A.S.No.108 of 1994 on the file of the
Court of Principal District Judge, Vellore. In the
circumstances of the case, there is no order as to costs.
sg
To
1. The Principal District Judge, Vellore
2. The Sub Court,Vellore.