T.K. Venkatesan vs T.K. Srinivasan

K. Ravichandrabaabu, J.—Civil Revision Petition No. 3468 of 2008 is filed against E.P. No. 18 of 2001 in I.A. No. 588 of 1997 in O.S.

No. 485 of 1976 on the file of Sub Court, Sankari. Civil Revision Petition No. 3469 of 2008 is filed against E.A. No. 85 of 2006 in E.P. No. 18

of 2001 in O.S. No. 485 of 1976 on the file of Sub Court, Sankari. The parties in both these Civil Revision Petitions are one and the same. The

petitioner in both these Civil Revision Petitions is the defendant in the suit for partition. The trial court passed a preliminary decree for partition on

17.06.1978. Thereafter, in I.A. No. 588 of 1997, final decree also came to be passed on 23.08.1998. E.P. No. 18 of 2001 was filed for

execution of the final decree. At that stage, an Advocate Commissioner was appointed and he also filed Plan ''C'', wherein, he has indicated the

Blue marked portion to be allotted to the plaintiff and yellow marked portion to be allotted to the defendant. Thereafter an order came to be

passed in E.P. No. 18 of 2001 on 11.12.2002.

The parties have come up before this Court in C.R.P. No. 296 of 2003 challenging the fair and final order dated 11.12.2002 made in E.P. No.

18 of 2001. During the pendency of the above Civil Revision Petition, the parties have entered into a compromise and filed a memorandum of

compromise before this Court on 10.11.2004. Thereafter, the Civil Revision Petition was disposed of by this Court by recording the compromise

entered between the parties and also by observing that the Commissioner has to measure the field and hand-over the respective portions as per

plan ""C"". It was also observed that Plan ""C"" shall form part of the memorandum of compromise. The said order dated 24.06.2005 in Civil

Revision Petition No. 296 of 2003 is also placed before this Court.

Consequently, the Commissioner inspected the property and measured the same and filed a report on 20.10.2005. In the said report, he has

observed at paragraph No. 4 that the area of yellow marked portion is shortened by 9 cents and the respondent viz., the petitioner herein objected

and refused to hand-over possession. The learned Commissioner also pointed out that the petitioner''s counsel already gave a memo dated

05.09.2005 to him with instructions that yellow marked portion allotted to the petitioner is to be with an extent of 1.52 acres. After observing so,

the learned Commissioner at the penultimate paragraph, has stated that he was not able to hand-over respective portions to the parties because the

area and measurements given by the parties in plan ''C'' are not tallied with each other. He further stated that he sought further directions from the

court below to proceed further.

Thereafter, the petitioner filed E.A. No. 85 of 2006 seeking for cross-examining the Advocate Commissioner in open court touching the matters

referred to him or mentioned in his report and also with regard to the manner in which he has made the investigation.

It is the contention of the petitioner herein, who was the petitioner in the said application, that the Advocate Commissioner has not acted as per

the terms of the compromise filed before this Court in Civil Revision Petition No. 296 of 2003 and on the other hand, apart from shifting the North

South boundary line dividing yellow and blue marked portions, he also shifted the southern boundary line, which was not agreed between the

parties under the terms of the compromise. Accordingly, his grievance is that the shortage of 9 cents was only because of the shifting of the

southern boundary. The said application was resisted by the respondent herein as the plaintiff.

The court below dismissed the said application by holding that the Commissioner has acted as per the terms of the memorandum of compromise

entered between the parties and filed before this Court in Civil Revision Petition No. 296 of 2003 and the litigation is being prolonged for several

years without allowing it to reach its finality. Therefore, the Court below has rejected the said application in E.A. No. 85 of 2006. Since the said

application was rejected, E.P. No. 18 of 2001 was also terminated on 27.04.2006. Aggrieved by the above two proceedings, the present Civil

Revision Petitions are filed before this Court.

Heard the learned counsel appearing for the petitioner as well as the respondent.

The only grievance of the petitioner before this Court, who is the defendant in the suit for partition is that the Advocate Commissioner has not

acted in accordance with the terms of the compromise and by shifting the southern boundary, he has acted beyond the terms of the compromise,

which has resulted in shortage of 9 cents towards his share, when he is entitled to 1.52 acres as per plan ""C"".

No doubt the Advocate Commissioner cannot act anything beyond the terms agreed upon between the parties in the memorandum of

compromise, which was filed before this Court.

While referring plan ""C"", it is seen that yellow portion was allotted to the petitioner herein and blue marked portion was allotted to the

respondent herein, subject to the modification stated in paragraph 2 thereunder. Then the Commissioner is bound to act within the modification as

referred to at paragraph 2 of the memorandum of compromise. If the Commissioner has acted beyond the modification referred to in paragraph 2

and if the grievance of the petitioner is that the Commissioner has exceeded beyond the terms of compromise, then the petitioner herein is certainly

entitled to examine the Commissioner once again in order to prove his contention. No prejudice would be caused to either side if the

Commissioner is re-examined.

In fact, the Advocate Commissioner has also pointed out in his report that the yellow marked portion is in shortage of 9 cents and the

petitioner herein through his counsel filed a memorandum on 05.09.2005 informing that he should be allotted an extent of 1.52 acres as per plan

C"". The Commissioner has also sought for clarification from the court below by specifically observing that he could not able to hand-over the

respective portions to the parties because the area and measurements given by the parties in plan ""C"" are not tallied with each other. When that

being the report filed by the Commissioner, then the petitioner should have been given a chance to cross-examine the Advocate Commissioner and

thereafter the Court should have found out the correctness or otherwise of the contention of the petitioner. However, without doing so, in my

considered view, it is not just and proper for the court below to pass a final order merely because the litigation is pending for so many years

between the parties. Just because the litigation is pending for so many years, it does not mean that the parties are to suffer or not entitled to get

their right settled if there is any violation of allotment of shares in terms of the compromise. It is for the court below to consider all these aspects

and pass orders on merits and in accordance with law after allowing the petitioner herein to cross examine the Advocate Commissioner.

The learned counsel for the respondent submits that the petitioner is not entitled to 1.52 acres as claimed by him, therefore, the Advocate

Commissioner has rightly measured the property and allotted share.

I am not expressing any view on the merits and rival contention of parties and it is for the court below to consider the submission of the parties

and decide the matter after allowing the petitioner to cross-examine the Advocate Commissioner.

In view of the above findings, I am of the view that the order passed by the court below is not sustainable and accordingly the order dated

27.04.2006 made in E.A. No. 85/2006 in E.P. No. 18 of 2001 in I.A. No. 588 of 1997 in O.S. No. 485 of 1976 on the file of the Sub Court,

Sankari is set aside and the application in E.A. No. 85 of 2006 in E.P. No. 18 of 2001 in O.S. No. 485 of 1976 on the file of the Sub Court,

Sankari is allowed.

In view of the order in allowing the application in E.A. No. 85 of 2006 in E.P. No. 18 of 2001 in O.S. No. 485 of 1976, it automatically

follows that E.P. No. 18 of 2001 in I.A. No. 588 of 1997 in O.S. No. 485 of 1976 is restored to the file of the Sub Court, Sankari.

Since the suit is of the year 1976 and the final decree is also passed in the year 1998 and in order to avoid further delay, I direct the court

below to take up the matter for cross-examining of the Advocate Commissioner and thereafter dispose of the E.P. No. 18 of 2001 on merits and

in accordance with law within a period of thirty days from the date of receipt of a copy of this order. The Civil Revision Petitions are allowed and

E.P. No. 18 of 2001 in I.A. No. 588 of 1997 is remanded back to the court below as indicated above. No costs.