Madras High Court
Veeramani @ Mahadevan vs Ameenambal Beevi
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 23.10.2018
DELIVERED ON : 02.11.2018
CORAM :
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
S.A. (MD) No. 1080 of 2009
Veeramani @ Mahadevan .. Appellant
Vs.
1. Ameenambal Beevi
2. Seethalakshmi Ammal
3. Musthafa
4. Sabarimalai
5. Poornima
6. Sumathi
7. Harini
(Respondents-2 to 7 are given up as they were set-exparte
before the Lower Courts). .. Respondents
PRAYER : This Second Appeal is filed under Section 100 of
Civil Procedure Code against the Judgment and Decree dated
06.07.2009 in A.S. No.72 of 2008 on the file of the
Subordinate Court, Srivilliputhur, modifying the Order dated
09.08.2008 in I.A.No.878 of 2004 in O.S.No.120 of 1982 on the
file of the learned Principal District Munsif, Srivilliputhur.
http://www.judis.nic.in
2
For Appellant : Mr.M.P. Senthil
For Respondent-1 : Mr.R. Vijaykumar
for M/s.S. Deena Dhayalan
Respondents-2 to 7 : Given up.
JUDGMENT
The appellant in A.S.No.72 of 2008 on the file of the Subordinate, Srivilliputhur is the appellant herein.
2. The suit in O.S.No.120 of 1982 had been filed in the Principal District Munsif Court, Srivilliputhur by the plaintiff/Ameenambal Beevi, seeking partition and separate possession of 4 items of suit properties. By Judgment dated 23.07.1987 a preliminary decree was passed and the plaintiff was granted ½ share in the suit properties. The first defendant, Seethalakshmi Ammal was declared entitled to 1/4th share in the suit properties. She was also directed to render accounts with respect to the income received from the 2 - 4 items of suit properties from 16.10.1978. It was declared that to determine the ½ share of the income and to seek allotment, the parties can file an application under Order 20 http://www.judis.nic.in 3 Rule 12 of Civil Procedure Code.
3. After going through several other legal proceedings, I.A.No.878 of 2004 had been filed for passing final decree, pursuant to the preliminary decree in O.S.No.120 of 1982. Order in I.A.No.878 of 2004 was passed on 09.08.2008. According to the final decree, ½ share was granted to the petitioner/plaintiff in 1 - 4 items of the suit property. It was also declared that the other ½ share, the 1 - 4 items of the suit properties shall be allotted to seventh respondent who was the legal representative of the second defendant. These shares were directed to be divided in accordance with the plan prepared by the Advocate Commissioner. It was also directed that the seventh respondent should pay a sum of Rs.28/-(Rupees Twenty Eight Only) to the plaintiff since he obtained a slightly larger share in the first item of the suit property.
4. The order in I.A.No.878 of 2004 was challenged by the seventh respondent who filed A.S.No.72 of 2008. This appeal came up for consideration before the Subordinate Court, Srivilliputhur. By Judgment and Decree passed in http://www.judis.nic.in 4 A.S.No.72 of 2008 on 06.07.2009, the appeal was partly allowed and the order in I.A.No.878 of 2004 in O.S.No.120 of 1982 was modified. The Order of the trial Court with respect to the item Nos.2, 3 & 4 were confirmed. With respect to the first item of the suit property, the portions allotted to the plaintiff and the seventh respondent who was the appellant was interchanged.
5. Challenging that Judgment and Decree, the seventh respondent now filed the present second appeal. In the second appeal, he has challenged the Judgment of the First Appellate Court with respect to item Nos.1 & 3 of suit properties alone. The second appeal had been admitted on the following Substantial Questions of Law:
1. Whether the Court below are right in law in allotting share in respect of third schedule property for the first respondent/plaintiff especially the same has been sold in Court auction sale and the same has been purchased by the appellant and delivery has also been taken under Ex.R.1?
2. Whether the Judgment and Decree of the Lower Appellate Court are vitiated in allotting an extent of 141.41 sq. mts., for the respondent and 54.07 sq. mts., for the http://www.judis.nic.in 5 appellant merely on the value of a dilapidated house especially the preliminary decree granted for the parties are equal ½ share?
3. Whether the Judgment and Decree of the Court below are sustainable in allotting more share to the first respondent/plaintiff in the final decree proceeding traversing beyond the scope of the preliminary decree?
6. Heard arguments advanced by Mr.M.P. Senthil, learned counsel for the appellant and Mr. R. Vijayakumar for M/s.S.Deena Dhayalan, learned counsel for the first respondent/plaintiff.
7. The entire litigation which commenced from institution of O.S.No.120 of 1982 had still not come to an end even after more than 25 years.
8. O.S.No.120 of 1982 had been filed by the plaintiff Ameenambal Beevi against that five defendants. Seethalakshmi Ammal, Goapalsamy, Ramachandran, Musthafa, Sabarimalai. The plaintiff sought a Judgment and Decree for partition and separate possession of ½ share in the suit properties. The said second appeal is restricted only to item http://www.judis.nic.in 6 Nos.1 to 3 of the suit properties. The first item of the suit property was house bearing Door No.62, Agraharam Street, Vathrayiruppu Vilage, Srivilliputhur. In natham S.No.363/2 measuring 103½ east to west and 180 ft. north to south. The third item of suit property is 1.34 acres of land in S.No.560/2 in Vathrayiruppu Kansapuram Village. The plaintiff claimed right by purchase of undivided ½ share in all the four items of suit properties by means of registered sale deed dated 26.10.1978. She claimed that she was entitled to ½ share in all the suit properties and the first and second defendants were entitled to another ½ share in the suit properties. The appellant herein is the legal representative of the second defendant. He had purchased the ¼ share of the first defendant and hence claimed right to the other one half share in all the 4 items of the suit properties. As stated above, the suit was decreed by Judgment dated 23.07.1987 and the plaintiff's ½ share was recognized in each one of the four properties.
9. The matter went up to this Court and finally a common Judgment was passed in S.A.No.2018 of 1989 and http://www.judis.nic.in 7 S.A.No.850 of 1990 on 24.01.2002. It was finally held that the plaintiff in O.S.No.120 of 1982 would get ½ share in all the four items of the suit properties. Thereafter, the plaintiff had filed I.A.No.878 of 2004 to pass final decree and orders were passed on 09.08.2008.
10. Challenging the said Order as stated above, the appellant herein had filed A.S. No.72 of 2008. Challenging the Judgment and Decree in A.S.No.72 of 2008, the present second appeal had been filed.
11. Both the Court below had observed with respect to the third item of the suit property that issue had been settled in the Second Appeals by the High Court and it had been declared that the plaintiff was entitled to ½ share in the said item No.3. It was also stated that the objections of the seventh respondent/appellant should have been raised in the trial Court itself and cannot be raised in the final decree application. Consequently, both the Courts below had negatived the claim of the appellant with respect to the third item of the suit property. That being a finding of fact, even http://www.judis.nic.in 8 though Mr.M.P.Senthil, the learned Counsel for the appellant invited the Court to give a findings, I am not prepared to enter to a discussion with respect to the third item of the suit property. The parties are at liberty to file an appropriate application under Order 20 Rule 18 of Civil Procedure Code to finally determine the issues with respect to the third item of the suit property.
12. The issue which had attracted much argument before this Court was the division into two posts the first item of suit property. A rough sketch of the first item of suit property is given below:
http://www.judis.nic.in 9 http://www.judis.nic.in 10 As is seen from the above sketch, the south actually faces north i.e., top portion of the page is south and the bottom of the page is north. Agraharam Street runs east-west on the northern side. On the southern side Sathiram street runs east-west. Consequently, the property has street entrances, on both sides. It must be mentioned that the sketch is also not drawn to measurement. Actually the area of the 'Vacant site' shown at the top of the sketch is much more than the total of the area of the 'house site' and 'open to sky' area. Originally, the appellant herein was allotted northern portion of building and open to sky. He filed an appeal, seeking allotment of the southerns portion. That was done. He has now filed a second appeal claiming a sentimental right over the building on the southern side and in the course of arguments sought this Court to once again modify the Judgment of the First Appellate Court and restore the order of the Trial Court in I.A.No.178 of 2004. Mr.R.Vijaykumar, learned Counsel for the respondent stated that the appellant herein had invited the judicial proceedings to prolong. He pointed out the conduct of the appellant in challenging the Order of the Trial Court, obtain an order in his favour as he wanted in the First http://www.judis.nic.in 11 Appellate Court and once again file second appeal seeking restoration of the Trial Court order.
13. It is seen during the final Decree Proceedings, learned Counsel Mr.N.Gopal, had been appointed as Commissioner. He had filed reports on 04.06.2007 and 28.01.2008. He had also filed a sketch of the properties. It is seen that the property consists of a building and vacant site. It had been declared that the appellant is entitled to ½ share and the first respondent is entitled to ½ share. In the report dated 04.06.2007, the Advocate Commissioner had inspected the first item of the suit property along with a Civil Engineer R.Selvakrishnan. The Civil Engineer has given his valuation of the entire property. He had given values separately for the house portion and for the vacant portion. He had valued the house portion at Rs.2,35,912.50/-. The vacant portion was valued at Rs.1,43,462.30/-. The difference between two is Rs. 92,450.20/-. It was also stated that the house portion was facing the Agraharam Street and consequently had a higher value. It was also stated in the report of the Civil Engineer that the allottee of the Agraharam street portion will have to http://www.judis.nic.in 12 ovelty to equalize the value. It was also found in the report of the Advocate Commissioner that the property cannot be divided into two equal half shares.
14. Thereafter, Mr.Ganesan, Engineer, Public Works Department, had also inspected the suit property and had given a report. According to his report, this property is divisible in three portions i.e., building portion, open to sky portion and vacant portion. The building portion was 495.50 sq.mts. The open to sky portion is 321.50 sq.mts. The vacant portion is 1137.70 sq.mts. The total area is 1954.70 sq.mts. The value of the land was given as Rs.1,47,282.00/-. The value of the building was given as Rs.65,773.00/-. The total value of the land and building was given as to Rs.2,13,055.00/-. The value of the building portion alone which is 495.50 sq.mts. was calculated at Rs.65,773/-. The value of the land and building is Rs.1,03,108/-. The value of the open to space area of 321.50 sq.mts. was calculated at Rs.24,224/-. The value of the vacant land of 1137.70 sq.mts., was calculated at Rs. 85,722/-.
http://www.judis.nic.in 13
15. The learned counsel for the appellant insisted that the appellant had a sentimental value in the portion facing Agraharam street. The learned Counsel also stated that the appellant is prepared to pay ovelty to adjust the value.
16. The area of the building portion is 495.50 sq.mts-(A). The area of the open to sky portion is 321.50 sq.mts-(B). The area of the vacant space is 1137.70 sq.mts.(C). Consequently, if 'A' and 'B' are added, then it will come to 817.0 sq.mts. The value of the portion since it faces Agraharam street must be considered. Apart from that, the value of the building must also be considered. The value of the building is said to be Rs.65,773/-. In order to provide equity among the parties, the appellant is allotted the building area of 495.50 sq.mts., and the open to sky area of 321.50 sq.mts., totaling 817.00 sq.mts. The entire vacant space of 1137.70 sq.mts., is allotted to the first respondent. To equate the value since the first respondent is allotted the area facing Sathiram street and since the building is also in a dilapidated condition, the total value of the building must be paid by the appellant to the first respondent which means the appellant http://www.judis.nic.in 14 will have to pay a sum of Rs.65,773/-to the first respondent.
17. In the result,
(i). The appeal is dismissed with respect to the item No.3 of the suit schedule property and the parties are permitted to move an application under Order 20 Rule 18 of Civil Procedure Code, seeking appropriate reliefs before the Trial Court.
(ii). In so far as the item No.1 of the suit schedule property is concerned, the appellant is allotted 495.50 sq.mts., of building space facing Agraharam street and 321.50 sq.mts., of open to sky area.
(iii). The first respondent is allotted the vacant space facing Sathiram street measuring 1137.70 sq.mts.
(iv.). The appellant will have to pay ovelty of Rs. 65,773/-to the first respondent since he also gets the building and also gets the portion facing Agraharam street which is of more value.
(v). Consequently, the appeal is partly allowed on the above terms. No costs.
http://www.judis.nic.in 15
(vi). The Judgment and Decree dated 06.07.2009 in A.S. No.72 of 2008 on the file of the Subordinate Court, Srivilliputhur is set aside and modified accordingly.
02.11.2018
Internet : Yes/No
Index : Yes/No
ksa
http://www.judis.nic.in
16
C.V.KARTHIKEYAN, J.
ksa
Pre-Delivery Judgment in
S.A. (MD) No. 1080 of 2009
02.11.2018
http://www.judis.nic.in
17
S.A.(MD).No. 1080 of 2009
C.V.KARTHIKEYAN, J.
This Court has delivered Judgment on 02.11.2018. The matter is listed today under the caption 'for being mentioned'.
2. It is pointed out by the learned counsel for the appellant that in paragraph Nos. 14, 16 and 17, wherever the numerals 495.50 sq.mts, 321.50 sq.mts., 1137.70 sq.mts and 1954.70 sq.mts are mentioned, the correct area is 49.550 sq.mts., 31.150 sq.mts., 113.770 sq.mts and 195.470 sq.mts. Additionally, in paragraph No. 16, the numerals 817.0 sq.mts., is to be corrected to 81.70 sq.mts.
3. Heard the learned counsel for the respondents also, who also affirms that a typographical error had crept in while indicating the numerals in the matter of sq.mts., in the above. Consequently, the Registry is directed to correct the sq.mts., as stated above in paragraph Nos. 14, 16 and 17.
4. It is also pointed out by the learned counsels that the same mistake had crept in in the decree also. Necessary corrections as aforesaid may also be taken out in the decree. http://www.judis.nic.in 18 C.V.KARTHIKEYAN, J.
vsg
5. Registry is directed to issue fresh copies of the Judgment and Decree to the learned counsels after making suitable corrections.
Vsg 28.03.2019
S.A.(MD).No. 1080 of 2009
http://www.judis.nic.in