Ameena Bee W/o Nisar Ahmed vs Hayath Bee W/o Abdul Khadar, & Ors.

The appellant is before this Court assailing the judgment dated 13.07.2011 passed in FDP No.1/2007 and the judgment dated 19.12.2014 passed in R.A.No.31/2011.

The appellant herein was the defendant in the original suit in O.S.No.450/1989, wherein the rights of the parties was determined and a judgment and decree for partition was passed. The preliminary decree passed therein had been assailed in Regular Appeal and thereafter in a second appeal in R.S.A.No.11/2007. On the same being confirmed final decree proceedings were continued further in FDP No.1/2007. Since the building situate in the property was to be partitioned, a Commissioner was appointed and based on the report of the Commissioner the partition was to be effected. In that regard the Final Decree Court through its order dated 13.07.2011 had passed the order. The appellant herein claiming to be aggrieved by the said order dated 13.07.2011 has preferred the appeal in R.A.No.31/2011. The Lower Appellate Court after taking note of the rival contentions and also the materials available on record has arrived at the conclusion that the Final Decree Court had taken note of the report submitted by the Commissioner and has arrived at its conclusion did not find merit in the appeal, which was accordingly dismissed.

Learned counsel for the appellant while assailing the order in the judgment assailed in this second appeal would contend that it would not be feasible to divide the property in the manner as has been indicated by the Commissioner. It is contended that two portions to be divided would be of small dimensions which would not be to the benefit of either of the parties and in that view it is contended that the division as suggested by the Commissioner is not practicable. Hence, it is contended that the Court below ought to have taken a decision to allot the entire property to the appellant and value thereof ought to have been ordered to the respondent.

In the light of the contentions put-forth, a perusal of the order would disclose that the Courts below have taken note of the report submitted by the Commissioner. In that regard on taking note of the measurement of the property at 14 x 28.6 feet has taken into consideration the manner in which it has been divided at 14 x 14.3 feet. In that view, on taking note of the fact that parties could enjoy the property in the manner as has been indicated by the Commissioner as per the measurement has taken into consideration that the shops which are available in the ground floor and the portion which is available in the first floor has been divided in equal proportion. In that regard the manner of the division after providing for the common area has been taken into consideration and the Courts below have arrived at the conclusion that the report submitted by the Commissioner is to be accepted and the division of the property is to be made in the manner as has been suggested by the Commissioner. In the said circumstance, when the only question was the physical division of the property and to divide the property in such manner when the Commissioner was appointed who has visited the spot in the presence of the parties and has submitted the report with regard to the feasibility of the division and has also suggested the manner in which the division is to be effected and on taking note of such report when the Courts below have recorded a fact finding with regard to the feasibility of the manner in which it is to be divided, there would be no substantial question of law arising for consideration in this second appeal under Sec.100 of Civil Procedure Code. Therefore, I do not see any merit in this appeal.

The appeal is accordingly dismissed. No order as to costs.