Poomalai vs Rayar

B. Rajendran, J.—This second appeal is focussed by the defendants 2 and 3, challenging the judgment and decree dated 31.01.2012 passed by the learned Subordinate Judge, Gingee in A.S. No. 8 of 2011 in confirming the judgment and decree dated 17.09.2009 passed by the learned Principal District Munsif, Gingee in I.A. No. 222 of 2004 in O.S. No. 49 of 1984.

The parties are referred to here under according to their limitative status and ranking before the trial Court.

The short facts that are necessary for the disposal of this Second Appeal would run thus:

(a) The first respondent/plaintiff filed the suit seeking partition and separate possession of his half share in A and B schedule properties and for declaration of his title in C schedule property and for the consequential relief of permanent injunction restraining the first defendant and their men from interfering with his peaceful possession and enjoyment of the properties by passing a preliminary decree.

(b) The suit was resisted by the defendants by filing the written statement.

(c) The trial court framed the relevant issues and a preliminary decree was passed as prayed for by the plaintiff as early as 11.08.1987. Subsequently, final decree proceedings were held and a final decree was also passed on 17.09.2009. As against the final decree passed, the defendants 2 and 3 preferred the appeal in A.S. No. 8 of 2011 and the first appellate court also confirmed the final decree passed by the trial court.

(d) Challenging the same, the present second appeal has been filed by defendants 2 and 3, raising the following substantial questions of law:

(i) Whether the concurrent judgment and decree of the courts below are vitiated as the same are based on extraneous considerations and as such against the canons of the law of Partition by metes and bounds?

(ii) Whether the courts below were right in law in accepting the Commissioner''s report and plan as gospel truth without independently considering the genuine objections and grievance of the appellant against the Commissioner''s report and plan?

(iii) Whether the reasoning given by the lower appellate Court for rejecting the genuine objections of the appellant to the mode of division suggested by the Commissioner is legally sustainable?

(iv) Whether the confirming judgment of the lower appellate court is vitiated for not considering in proper perspective the objections raised by the appellant to the Commissioner''s report and plan under Ex.C1 and 2 for passing the final decree?

(v) Whether the courts below erred in law in failing to note that the Commissioner''s report and plan is only a proposal and the actual mode of partition is to be effected by the court on a proper appreciation of the objections of the parties?

(vi) Whether the courts below erred in accepting the Commissioner''s and plan in toto as gospel truth without applying its mind independently to the fair and equitable nature of division suggested therein?

Heard the learned counsel for the appellant.

Learned counsel for the appellant would submit that the Commissioner had not properly identified the survey stone in the suit property before measuring the suit items. She would further submit that in item No. 5 in the "A" scheduled property, wherein, a well, toilet and bathroom were enjoyed by both the parties, the Commissioner in his report, valued the same at Rs. 9,000/- and allotted all the above items to the respondent/first defendant and directed the appellants herein to receive only a sum of Rs. 3,000/- towards owelty in lieu of the well, bathroom and the toilet as the same could not be partitioned by metes and bounds. She would also submit that both the courts below failed to take into consideration the fact that no one can construct a bathroom and toilet in a sum of Rs. 3,000/-. Accordingly, she would pray for setting aside the judgments and decrees passed by both the courts below.

I have perused the records. It is seen that the trial court has passed the preliminary decree as early as 11.08.1987 for the suit instituted in the year 1984. Hence, when the matter was taken up for hearing on 11.11.2014, this Court directed the learned counsel appearing for the appellant to verify and report the present position as to whether any Execution Petition is pending as there was a delay of more than 24 years.

Today, the learned counsel appearing for the appellant fairly submitted that as per the order passed in the Execution Petition, delivery itself was ordered and possession also has been taken over.

If the matter is to be taken up on merits, it is seen that both the courts below have categorically come to the conclusion that the property can best be enjoyed as per the report submitted by the Commissioner. Even the Commissioner only after giving notice to either of the parties, divided the suit property in accordance with law. Though the owelty offered might look too low, taking into consideration the fact that the well has not been used for quite a long time, the appellants/defendants 2 and 3 cannot raise that objection also, at this stage.

In view of the subsequent development in the matter that delivery has been ordered and possession also has been taken, I do not find any illegality or infirmity in the judgments passed by both the courts below. Accordingly, the substantial questions of law raised by the appellants/defendants 2 and 3 are answered against them and the second appeal is dismissed. However, there shall be no order as to costs.