Andhra HC (Pre-Telangana)
Pabbathi Venkataramaiah Chetty vs Pabbathi N. Rathnamaiah Chetty And Ors. on 30 October, 2007
Equivalent citations: 2008(2)ALD758
JUDGMENT D. Appa Rao, J.
1. This is an appeal preferred by D.1 against passing of the final decree in I.A. No. 140 of 2000 in O.S. No.3 of 1996, on the file of II Additional District Judge, Madanapalle, Chittoor District dated 2.6.2006 approving the report of the Advocate Commissioner dividing the suit schedule properties in terms of preliminary decree and to handover respective shares to the plaintiffs and the defendant.
2. The essential facts leading upto this appeal are as follows:
3. The 1st plaintiff the father and the 2nd plaintiff the son filed the suit against the 1st defendant another son, the appellant herein and others, for partition of the plaint schedule non-residential premises by name Sree Lodge, a three storied structure bearing D. Nos. 13/293, 13/294 and 13/295 into three equal shares and for possession of two such shares to them. The father and sons purchased the said property under registered sale deed dated 5.5.1966 and constructed the lodge after obtaining permission from the municipality. The suit was decreed entitling the plaintiffs 2/3rd share and 1st defendant 1/3rd share by a preliminary decree dated 15.2.2000. The plaintiffs thereupon filed I.A. No. 140 of 2000 for passing a final decree by appointing an Advocate Commissioner and directing him to divide the suit property as per the terms of the preliminary decree. The appellant did not oppose by filing any counter. On that an Advocate Commissioner was appointed. He inspected the plaint schedule building and submitted his report suggesting division of the building. The appellant herein did not file any objection. The plaintiffs filed objections requesting re-entrustment of the warrant to note details of measurements etc. After hearing both sides, the learned Judge had directed that an inspection be made with the assistance of a municipal surveyor, and note the measurements etc.
4. Accordingly, he inspected the plaint schedule property and got measured the plaint schedule property with the assistance of qualified municipal surveyor and submitted his report. The appellant did not file any objections to the said report. Upon hearing both the parties, the trial Court opined "In this connection, the attention of the Court has been diverted to the sketch filed by the Advocate/Commissioner along with his additional report. A careful perusal of the sketch filed by the Advocate/Commissioner along with his additional report shows that the plaint schedule building was divided into three equal shares by measurements. As per the measurements shown in the above sketch, the ground floor is divided into equal shares and the extent of each item is 492.5 Sq. Feet. Similarly the 1st and 2nd floors of the plaint schedule building were divided into three equal shares as shown in the above sketch filed by the Advocate Commissioner and as per such division, the extent of each item in first and 2nd floors was 506.3 Sq. Feet and 506.3 Sq. Feet respectively."
5. Since none of the parties had objected, the trial Court noticed that "...The 1st respondent has not filed any objections against the additional report of the Advocate Commissioner particularly with reference to the above measurements. Though the petitioners have filed objections against the additional report of the advocate/ commissioner, the same are not with respect to the measurements of the plaint schedule building taken by him and they are related to other aspects about which I would discuss in the forth coming paragraph of my order. There is no any other material also on record to suspect the measurements taken by the Advocate Commissioner as mentioned above. Hence, under the above circumstances the measurements taken by the Advocate Commissioner and his sketch filed along with his additional report can be taken into consideration for passing final decree." The trial Court further opined "Since the 1st petitioner is younger brother of the 1st respondent, eastern side portion must be allotted to him as per vasthu."
6. In the property allotted to the appellant he found overhead tank, staircase, electrical and municipal tap connections etc. When the plaintiffs have filed their objections, the trial Court held "....But when a building like plaint schedule building has to be divided into three equal shares, it is neither practicable nor possible to have division of such over head tank stair case, electrical and municipal tap connections also with the building and it would be just and proper to give such direction that the parties shall bear the expenses equally relating to the construction of such over head tank and stair case and having of electrical and municipal tap connections for such item where there are no such facilities. Accordingly the point is answered." The Trial Court, after considering the entire material placed on record allotted 984.10 Sq. Feet from East to West in the ground floor, 1012.6 sq feet from East to West in the first floor and an extent of 1012.6 sq feet from East to West in the second floor of plaint schedule building to the plaintiffs 1 and 2 towards their 2/3rd share, put together and the remaining l/3rd share was allotted to the 1st defendant. Finally it directed the parties to bear the expenses equally relating to construction of overhead tank and staircase and electrical and municipal tap connections in such extent where there are no such facilities. It directed the parties to bear their own costs.
7. Against the said order, the 1st defendant preferred this appeal contending that the division suggested was inequitable. The building is impartable and inseparable. If the property is divided as suggested, the building will not be useful. Since there is encroachment as noted by the Advocate Commissioner the said area has to be deducted while allotting the share. Since the building rests on certain pillars, and his l/3rd had fallen just 1½ meter from that pillar, and if the existing pillars are removed, the entire super structure would collapse. The plaintiffs ought to have restrained from constructing any structures to go to their shop rooms. There are differences in the measurements from field position to the report of the Advocate Commissioner.
8. He filed ASMP. 2149 of 2007 alleging that he is ready to purchase 1½ meter area shown from the 2nd pillar from West, and the same may be carved out in his share. In the circumstances, the principles of owelty be applied. An equitable distribution of the property would be achieved, without intrinsic value being diminished. Therefore, he prayed that the principles of owelty be applied and allot the said area to him.
9. The plaintiffs filed counter contending that the appellant did not file any objections either to the report filed by the Advocate Commissioner or raise any objection before passing the preliminary decree. He did not raise this contention in A.S. No. 1023 of 2000 filed against the preliminary decree, which was dismissed on 21.4.2005, and the SLP to the Supreme Court which was also dismissed on 21.10.2005. After two years of passing of the final decree, this plea of owelty was token without recoursing to the facts in issue. The appellant intended to appropriate property more than what he was entitled to. The appellant cannot have either equity or owelty at the cost and expenses of other sharers entitlement. The mode of division as suggested by the trial Court is equitable. In fact, in the 1/3rd share of the appellant, stair case water tank etc., are located, and if the request of granting 1½ meters is granted, their entitlement substantially diminishes. The appellant wanted extra benefit at their cost.
10. The point that arises for consideration is whether the division suggested by the trial Court is unjust and any owelty has be fixed in order of equate the shares?
11. At the outset, it may be stated that the suit pertains to partition of a lodging house between father and son on one hand and another son on the other. During the entire trial or in the appeal preferred against the preliminary decree or during final decree proceedings in the trial Court there was an objection that the property was impartable. When there was no issue at any stage of the proceedings, for the first time, such a contention was taken, without any basis. At this juncture, it is useful to note that as long back as in 1929 in the decision in Krishna Reddiar v. Ramanuja Reddiar , the learned Judges opined "When a party does not raise his objections before the Commissioner appointed for partition, and does not object to the Commissioner's report in the lower Court, he is not entitled to come upto the High Court and object to the recommendations made by the Commissioner, although the High Court is not precluded from considering whether the Commissioner acted within his jurisdiction or not."
12. Before considering the objections raised in this appeal, it may be slated herein that the suit property consists of lodging situated at bus stand, Madanapalle. It is a three-storied building with 5 rooms on the ground floor, 6 rooms each in the first and second floors. The Advocate Commissioner noted the measurements in each of the floor. While he noticed the ground floor consists of 1478 sq feet, first and 2nd floor consists of 1519 sq feet each respectively. The Commissioner further observed that the building in resting on pillars and there is possibility to alter or remove the walls, as per the shares allotted. A competent municipal surveyor noted the measurements. The Commissioner after considering the physical features opined that the building could be divided into equal shares, except for overhead tank, electricity connection and other structures. While submitting his report he noted that there is an encroachment of 1.5 meters into the municipal site. It is nobody's case that there was encroachment on the western side. Even the appellant did not state that there was an encroachment. It is not the case of the appellant even that a notice was issued by the municipality alleging that there was encroachment. For the first time, in this appeal, taking off the cuff remark the appellant contends that there is encroachment in the slab portion, and if the municipal authorities remove the said encroachment, he would sustain a loss of 1.5 meters of site. Now he contends that the building is rested on pillars. If l/3rd portion, which is allotted to him, comes to 493 sq yards in the ground floor, on measurements there would be a short fall of 1½ meters from the 2nd pillar. In fact one of the shop rooms, wherein 2nd pillar is in existence, falls to his share. If that portion at the 2nd pillar from western end is allotted to the plaintiffs share, and if they remove it his entire structure on the ground and 1st floor would be collapsed. The trial Court ought to have considered these aspects while allotting shares. It ought to have applied the principle of owelty directing him to compensate the value of 1½ meters of area upto the 2nd pillar in his occupation. This would be equitable in the circumstances.
13. The learned Counsel for the respondents contended that as far as the first contention is concerned, the Commissioner has divided the property equally by metes and bounds. Since the Advocate Commissioner opined that there was encroachment on the eastern side, the division was suggested from West to East. He also observed that a wall could be constructed across without touching the pillar. The contention that if the pillar is removed the entire structre would be collapsed, has no meaning and if that comes that their portions also would fall. To obviate a direction could be issued not to remove the pillar. Moreover, when this contention was not taken in the trial Court, taking for the first time in the appeal is apparent. It is undoubtedly to see, that the decree that is obtained becomes ineffective.
14. Undoubtedly, all these aspects were taken by the trial Court. In fact a perusal of the photographs filed along with the counter shows that the so-called encroachment was towards the appellant side and that too it was by way of balcony. If one peruses the photographs, on the eastern side there was no balcony whatsoever. Therefore, the plaintiffs cannot be found fault with, for projection of the balcony on the western side. I reiterate that there was no encroachment on the ground floor. Only when the building was constructed, they made some encroachment by way of balcony, that too 1½ sq meter, a negligible portion. This facility of balcony is not there for the plaintiffs. Therefore, I am of the opinion that there is no inequality if division is made as suggested by the Commissioner, and approved by the trial Court.
15. Admittedly, the ground floor consists of 5 rooms. Total plinth area is 1478 sq feet. The 1st and 2nd floors each consist of 6 rooms with a total plinth area of 1519 sq feet each. In regard to 1st and 2nd floors each of them will get 2 rooms. They can be divided without any difficulty except for encroachment of an area of 1 feet 3 inches, which according to the Commissioner is by way of balcony towards the share of appellant. In regard to ground floor there are five rooms. If it is divided each of them will get 492.66 sq. ft each. However, plaintiff was given 493 sq. ft while defendants were given 492.50 sq ft.
16. The learned Counsel for the appellant contended that while effecting partition of the joint family it would not be possible to divide the properties by metes and bounds, there being of necessity an allocation of properties of unequal values amongst the members of the joint family owelty be fixed so far the 2nd pillar on the area beyond West of it upto 1/3rd extent of suit building for ground floor upto III floor be allotted to him and he is prepared to pay just and reasonable compensation. To that effect he filed ASMP No. 2149 of 2007. In order to adjust necessarily the concept of owelty have to be invoked. In support of his contention he relied on T.S. Swaminatha Odayar v. Official Receiver . Their Lordships observed "While effecting a partition of joint family properties it would not be possible to divide the properties by metes and bounds there being of necessity an allocation of properties of unequal values amongst the members of the joint family. Properties of a larger value might to one member and properties of a smaller value to another and therefore there would have to be an adjustment of the values by providing for the payment by the former to the latter by way of equalization of their shares. This position has been recognized in law and a provision for such payment is termed "a provision for owelty or equality of partition."
17. He also relied Fakir Khan v. Kuanr Khan , wherein the learned Judges opined "...The principle underlying Section 2 of the Partition Act is that a partition cannot be allowed if by such partition the intrinsic value of the property sought to be partitioned would be destroyed. In such a case, money compensation should be given in lieu of the share to which a shareholder may be entitled." The learned Judges further opined "In effecting partition where a Court is confronted with a situation that an item of property is not capable of physical partition and if divided it will loss its intrinsic worth, in such a case, that item can be allotted to one and compensation in money can be given to the other. The Court adopts this method in making equitable partition of the joint property in exercise of its own discretion. It would be impossible for a Court to effectuate a partition on an equitable basis, if it should be held that it is under a legal obligation to divide every item of the joint property in specie. Bearing in mind the aforesaid principle of equitable partition and applying the same to the facts and circumstances proved and found in the present case, I am of the considered opinion that this is a fit case where the principle of 'owelty' should be applied and the plaintiff should be paid due compensation in respect of Ac.0.007 decimals of land out of the joint family property which falls to their share and is in possession of the defendant over which the defendant has constructed a building to the knowledge of the plaintiff and is staying thereon with his family members.
18. He also relied Mohammed Syeed v. Jaseena 2003 (2) CCC 124, wherein the learned Judges relied the Supreme Court's decision T.S. Swaminatha's case (supra) and observed "unequal shares could be equalized by applying the provisions of equity or owelty of partition. The learned Counsel also relied Vasudeva Murthy v. Mariyappa 2003 ILR (Kar) 4558. It was a case where the learned Judges after opining that merely because the decree declare that the plaintiff is entitled to one-half share he would not be entitled to half in each of the schedule properties. The Court should make endeavour to equalize the share which is recognised by making provision for payment of owelty. The learned Counsel also relied a decision of this Court in C.C. Fernandez v. Mrs. A.J. Fernandez 1990 (2) APLJ 22. It was a case where the learned Judge by invoking Section 151 CPC directed the petitioner therein to purchase the shares of the respondents, as it was not capable of convenient division.
19. At no stage of the proceedings, the appellant claimed that 1½ meters of portion at the 2nd pillar be allotted to him by fixing its value. At the out set, it may be stated that the appellant did not spell out the value of the property that he intends to pay if 1½ meters of portion is allotted to him. He did not allege in the trial Court that this portion be allotted to him so that he would pay the amount. He did not file any application under Sections 2 and 3 of the Partition Act. This aspect was thoughtfully considered by the Commissioner without either party suggested to him. Assuming that such a contention could be taken, the Commissioner has already overruled, that it would cause injustice to the appellant. In fact, he categorically observed that a wall could be constructed at the 2nd pillar dividing the properties without detriment to the building. No objections were made to this suggestion. The appellant did not allege that it was not feasible. If the course suggested by the Commissioner is implemented all the parties will have equal and equitable areas without any detriment to the structure. I do not find any merits in this application. ASMP No. 2149 of 2007 is dismissed.
20. Coming to the facts, it is not the case of the plaintiffs nor that of the appellant that the property could not be divided into three equal shares. It is a non-residential premises. It could be divided into three equal shares as demonstrated by the Advocate Commissioner. The appellant did not allege that there would be unequal distribution of shares, in case the properties are divided into three equal shares. He did not even object in the trial Court. For the first time he raised this contention. Since, it is nobody's case that the division suggested by the Advocate Commissioner would cause injustice to one of the parties, and the contentions that were taken by the appellant belatedly only to drag on the proceedings and to deny the just claim of the plaintiffs, the contention requesting to allot 1½ meters of portion of 2nd pillar is rejected. The trial Court has found that the water tank, stairs and other structures are in the share allotted to the appellant. He is beneficious of those structures. I do not see any injustice that would occasion, if partition is made on suggestion of the Commissioner. Absolutely there are no merits whatsoever in the contentions of the appellant. These contentions were taken for the first time in this appeal.
21. CRP 3118 of 2007 is preferred by the appellant against the order in I.A. No. 13 of 2007 in E.P. No. 20 of 2006 in O.S. No. 3 of 1996 dated 4.4.2007 requesting to handover keys of the building to him.
22. It is the case of the appellant that against the orders of final decree, he preferred A.S. No. 454 of 2006, and obtained orders restraining the decree-holders not to demolish the premises while taking possession of their 2/3rd share. When the Court refused to pass such order, he preferred CA No. 444 of 2007 before the Supreme Court. While granting stay, he was directed to deposit Rs. 25,000/-per month unconditionally commencing from 1.2.2007. Thereupon, he filed E.A. 13 of 2007 alleging that by virtue of the said order, he was entitled to possession, and therefore direct the Advocate Commissioner to deposit keys of the schedule property, and the same be delivered to him, through an Amin. The trial Court dismissed the said application on the ground that the Supreme Court did not pass any direction to him to deliver possession to the appellant on deposit of the said amount. Since there was no direction whatsoever, the question of handing over keys does not arise. Therefore, he dismissed the application. Aggrieved by the said order, he preferred this revision.
23. Admittedly, a receiver has been in possession of the property. A final decree has been passed. Therefore, handing over keys at this juncture would not arise. I do not see any merits in the submission The prayer is misconceived Therefore revision is dismissed.
24. The plaintiffs equally filed CRP No. 5095 of 2006 against the docket order of the trial Court, when it refused to appoint a qualified chartered accountant to go into the accounts. Admittedly a receiver has been in possession of the property. The appellant can as well file objections, on the submission of the report by the Commissioner, in regard to the accounts maintained by him.
25. Appointing a chartered accountant at this juncture is not feasible. I do not see any merits in the revision. Accordingly, the revision is dismissed.
26. In the result, the appeal as well as the revision petitions are dismissed. However, in the circumstances, each party to bear its own costs.