Madras High Court
Avuchi Gounder (Deceased) vs Amirtham Ammal on 24 January, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.01.2012 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH S.A.No.167 of 2004 and C.M.P.No.701 of 2004 1.Avuchi Gounder (deceased) 2.Sengottayan 3.Ganapathy ... Appellant / Plaintiff (Appellants 2,3 are brought on record as legal representatives of the deceased sole appellant vide orders of Court dated 26.2.2007 made in C.M.P.No.438 to 440 of 2007 vs. Amirtham Ammal ... Respondent / Defendant Appeal filed under Section 100 of C.P.C. against the judgment and decree of the learned Additional District Judge, Namakkal, dated 8.8.2003, made in A.S.No.350 of 2002 confirming that of the Trial Court dated 25.06.1996 made in I.A.No.669 of 1992 in O.S.No.12 of 1984. For Petitioner : Mr.R.Subramanian For Respondent : Mr.V.Sekar for M/s. D.Shivakumaran J U D G M E N T
This appeal is directed against the judgment and decree passed by the First Appellate Court in A.S.No.350 of 2002 dated 8.8.2003 in confirming the judgment and final decree passed by the Trial Court made in I.A.No.669 of 1992 in O.S.No.12 of 1984 dated 25.06.1996.
2. The appellant herein was the appellant before the lower Court as well the 4th defendant before the Trial Court. The respondent herein was the respondent and the plaintiff before the lower Court.
3. The case of the petitioner/plaintiff before the Trial Court would be thus:-
The suit filed by the petitioner/plaintiff, for partition of the suit properties into 12 equal shares by metes and bounds and one such share be put for separate possession thereof to the plaintiff and for a direction to the defendants 1 and 2 do account for the income from the suit property and for costs, was preliminarily decreed on 28.12.1985. But, the defendants did not partition or account for the income from the suit property. Therefore, the petitioner has filed I.A.No.211/1986 seeking to pass a final decree in terms of preliminary decree. During the pendency of the application, the 1st respondent Ramasamy Pandaram died and his legal representatives were also impleaded. But, as the amendment was not carried out, the final decree application in I.A.No.211/86 was dismissed on 14.02.1992. In the aforesaid final decree application, Mr.S.Subramaniam, was appointed as Advocate Commissioner and his remuneration is also in the Court deposit. Till now, the defendants did not partition or account for the income from the suit property. Hence, the petitioner has filed this application for final decree.
4. The objections raised by the 4th respondent/4th defendant would be as follows:-
The first defendant has sold the half share in item-1 of the suit property in favour of the 4th respondent under a registered sale deed. The first defendant was declared with 5/12th share in the suit property and the 4th defendant would be entitled to such 5/12 share in item No.1 in lieu of the = share purchased by him. There will be disturbance in enjoying Item-1 of the suit property if it is partitioned into 12 equal shares. Therefore, the 4th defendant would pray that item-1 of the suit property may be allotted to the first defendant for his 5/12 share.
5. The Trial Court had appointed a Commissioner to inspect the three items of the suit properties and to make divisions and allotment of 1/12 share and other respective shares to the parties in accordance with the preliminary decree passed by the said Court. Accordingly, the Commissioner inspected the suit property and filed a report with suggestions towards allotment of shares. In the report filed earlier no allotment was made in favour of the 4th respondent/4th defendant(appellant herein) and therefore, he filed an objection to the Commissioner report and also filed an application to reissue the commission's warrant for the purpose of allotting 5/12 share in item 1 of the suit property. The said petition was allowed by the Trial Court and the Commissioner was directed to allot 5/12 share in item No.1 of the suit properties to the share of the 4th respondent/4th defendant and accordingly, the Commissioner had suggested the allotment of 5/12 share in item 1 of the suit properties and also allotted the rights in common well and common property. On the basis of the Commissioner's report, the Trial Court had allotted G,H,I,J,K plots of the properties and the channel right from the common well to those properties and the right in the 33 cents of common property and the property in and around the common well in 14 cents and a thatched shed put up by 4th respondent towards the 5/12 share belonging to the 4th respondent/4th defendant.
6. Aggrieved by the said allotment order and the final decree passed thereon, the 4th respondent/4th defendant preferred an appeal in A.S.No.350 of 2002 before the lower Appellate Court. The said appeal was heard by the First Appellate Court and the same was dismissed by confirming the order passed by the Trial Court. Aggrieved by such dismissal of the appeal, the present second appeal has been preferred by the 4th respondent/4th defendant.
7. On admission of the appeal, this Court had formulated the following substantial questions of law to be decided in this appeal for consideration:-
"1. Whether the lower Appellate Court is justified in holding that the appellant had no right or claim to be allotted a particular land on the ground that he is only a purchaser from first defendant, overlooking the fact that purchaser from a co-sharer acquires the rights of the co-sharer and himself become a co-sharer.
2. Whether the lower appellate court was in error in overlooking that the appellant had acquired undivided half share in Item-1 from first defendant under sale deed, dated 2.6.1980, even before the institution of the suit and as such became a co-sharer along with plaintiff and his share is to be determined and allotted."
8. Heard, Mr.R.Subramanian, learned counsel for the appellant and Mr.V.Sekar, learned counsel appearing for Mr.D.Shivkumaran, learned counsel for the respondent.
9. The learned counsel for the appellant would submit in his argument that the 1st appellate Court was not correct in coming to the conclusion that the 1st defendant, the vendor of the appellant had no right to claim a particular land towards his share. He would further submit that the 1st defendant who was entitled to half share in the item 1 of the suit property had effected transfer of his share through a registered sale deed dated 2.6.1980 out of the total extent of 5.68 acres which was prior to the institution of the suit filed by the plaintiff. He would further submit in his argument that the appellant(4th respondent/4th defendant before Trial Court) is entitled to step into the shoes of his vendor, the 1st defendant and he would also be a co-sharer and is entitled to seek for his share in the property purchased by him as one of the co-sharers. He would further submit that the Courts below have forgotten that the appellant was entitled to have allotted his share in the desired property of his convenience like other co-sharers. He would further submit that the appellant requested the Commissioner to allot 'L' plot as shown in the plan so as to have all the 5 plots on the northern side of item 1 of the suit properties but the Commissioner had allotted the plots namely G,H,I,J,K by omitting allotment of 'L' plot. He would further submit that the Commissioner ought to have allotted the plots namely H,I,J,K,L towards his 5/12 share in item-1 of the suit properties instead of allotting G,H,I,J,K. He would also submit that the allotment of plot 'G' would necessitate the appellant to install another motor pump set in the suit well to take water to the said 'G' plot for irrigation and if 'L' plot has been allotted the appellant could have used channel going over the plot in I,J,K for the purpose of irrigating the 'L' plot. He would also submit that there would not be any inconvenience to the plaintiff for having allotted 'G' instead of 'L' plot and water can be taken through the common channel, which would pass through 'H' plot. He would further submit in his argument that the 1st Appellate Court had grossly erred in coming to the conclusion that the appellant (4th respondent/4th defendant before Trial Court) cannot ask for any specific plot as he is not entitled to claim a specific property in accordance with law. He would further submit in his argument that the appellant has paid Court fee for allotment of his 5/12 share in the suit properties but however, the Trial Court did not pass a final decree in favour of the appellant, which is not correct. He would therefore, request the Court to allow the appeal and thus, a share of 5/12 in item No.1 of the suit properties may be allotted as described as 'H,I,J,K,L' in the Commissioner's sketch and the appeal be allowed.
10. The learned counsel for the respondent/plaintiff would submit in his argument that the Trial Court has correctly come to the conclusion of allotting 'L' portion in item No.1 of the suit properties in favour of plaintiff's 1/12 share and also a common right in the vacant site measuring 33 cents and also in the common well and 14 cents in and around the common well, since the plaintiff was entitled to 1/12 share in the item No.1 of the suit properties. He would further submit that the appellant/4th defendant did not file any written statement seeking for equitable allotment and there was no such order of allotment of his share in the preliminary decree. He would further submit that the appellant/4th defendant did not prefer any appeal against the preliminary decree passed in favour of the plaintiff and he participated only in final decree proceedings. He would further submit that he has paid Court fee for the allotment of his 5/12 share in item No.1 of the suit properties and the Commissioner was also directed to measure and allot 5/12 share in item 1 of the suit property and accordingly, the Commissioner's report was filed. He would further submit that the Commissioner has submitted his report allotting 'L' portion in item 1 of the suit properties in favour of the plaintiffs since 1/12 share belonging to the plaintiff was alone to be allotted as per preliminary decree. He would further submit that the reasoning given by the Trial Court for accepting the Commissioner's report was that the 4th defendant(appellant herein) was entitled to G,H,I,J,K portion in item 1 of the suit property and proportionate common right in 33 cents in common space and common well and the surrendering of 14 cents was also quite acceptable and there was no inconvenience for anybody much less to the appellant in such allotment. The lower Court had confirmed the final decree reached by the Trial Court since it was in order and therefore, there is no necessity for interfering in the judgment and decree passed by the 1st Appellate Court. He would therefore submit that the allotment made in favour of the respondent/plaintiff in the 'L' portion in the 1st item of suit properties and other common right in common 33 cents and in the common well and the 14 cents in around the common well may not be disturbed.
11. I have given anxious thoughts to the arguments advanced on either side.
12. On a careful understanding of the arguments I could see that the appellant herein was ranked as 4th defendant in the suit and he did not file any written statement nor he contested the suit. The Trial Court had decreed the suit in favour of the plaintiff declaring that the plaintiff was entitled to 1/12 share in all the 3 items of suit properties. The appellant/4th defendant was the purchaser of the right in 1/2 share of item 1 of the suit properties from the 1st defendant but the Trial Court held that the 1st defendant was entitled to only 5/12 share in all the suit properties including item No.1 of the suit property. There cannot be any dispute that the 4th defendant, who was the purchaser of undivided = share in item 1 of the suit property from the 1st defendant would be entitled to only 5/12 share in item 1 of the suit properties, the sale deed was prior to the suit. No doubt, the 4th defendant(appellant) is entitled to step into the shoes of the 1st defendant and ask for the relief under the sale deed. Even though the 4th defendant did not participate in the trial, he had participated in final decree proceedings and paid Court-fee for the allotment of his share. It is also an admitted fact that on payment of Court fee paid by the appellant herein(4th defendant/4th respondent before Trial Court), the Commissioner was directed to measure the property once again and to file his report regarding his 5/12 share to be allotted in the final decree proceedings.
13. The Commissioner inspected and allotted G,H,I,J,K namely 5 plots towards the 5/12 share of the 4th defendant/4th respondent in item 1 apart from the proportionate common right in 33 cents including the thatched shed put up by him and in the common well and its surrounded 14 cents comprised in the same item 1. The only grievance on the side of the appellant/4th defendant would be that the 'L' marked portion which was allotted to the plaintiff should have been allotted to him and instead the respondent/plaintiff would have been allotted 'G' marked portion and if it was allotted so, the plaintiff would not have any difficulty to take water from the common well to 'G' portion and the appellant/4th defendant could use the common channel used by him for irrigating J,K,I portion and also for 'L' portion.
14. On a careful perusal of the sketch in respect of the item No.1 of the suit properties, I could see that the allotment made to the appellant/4th defendant in G,H,I,J,K would be more convenient to the appellant/4th defendant than that of any other parties much less the plaintiff. The plots allotted to the appellant is surrounding the common well as well as common property in item-1. If 'L' portion is allotted to him and instead the plaintiff is allotted with 'G' or any of the portion commencing from 'A,B,C,D,E,F' it may not be helpful to the plaintiff to get her 1/12 share to be effectively enjoyed. The appellant was allotted with such portions marked from G,H,I,J,K, along with other common right in the said properties and common well and also the coconut trees standing in his properties and in common property. However, the Trial Court as well as the First Appellate Court have lost sight of passing final decree in favour of 4th defendant/4th respondent also (appellant herein). The Trial Court ought to have passed a final decree by allotting G,H,I,J,K, portion and other proportionate common right in 33 cents and in the common well and 14 cents of land located in and around the said common well and the trees allotted therein in favour of the 4th respondent/4th defendant. If such a final decree is passed in favour of the 4th defendant/4th respondent(appellant herein), the appellant could have taken necessary steps to execute the final decree in terms of the Commissioner's report. Therefore, I could see that the findings regarding allotment of property in item-1 in favour of the respondent/plaintiff need not be disturbed and at the same time, the allotment of the shares in G,H,I,J,K and other common rights as cited above in the Commissioner's report should have also been passed in favour of the appellant herein(4th respondent/4th defendant) by the Trial Court. There is no need for remanding the matter for passing such a final decree. Since the 1st Appellate Court could have passed such a final decree in favour of the appellant, who was the 4th respondent/4th defendant before the Trial Court. The First Appellate Court had failed in its duty to pass such direction of passing a final decree in favour of the appellant herein. Even though the question of law framed by this Court are not helpful to the appellant to get the properties of his choice, the allotment of the Commissioner made in his report and sketch should have been decreed in favour of the appellant (4th respondent/4th defendant before the Trial Court), and to that extent, the appeal has to be allowed.
15. For the foregoing discussion, I am of the considered view that the the findings reached by the 1st Appellate Court in allotting the properties as decided by the Trial Court towards 5/12 share of the appellant (4th respondent/4th defendant before the Trial Court) is confirmed and at the same time, the final decree passed by the Trial Court as confirmed by the First Appellate Court is modified to the extent that the appellant (4th respondent/ 4th defendant before the Trial Court) is also entitled for a final decree in respect of his 5/12 share as allotted by the Commissioner in the sketch appended to the second report of the Commissioner's report and thus, the second appeal is allowed to that extent. No order as to costs. Consequently connected civil miscellaneous petition is closed. The sketch of the Commissioner in his second report shall form part of the final decree.
.01.2012 Index:Yes/No Internet:Yes/No ssn To The Additional District Judge, Namakkal V.PERIYA KARUPPIAH, J., ssn Pre-delivery Judgment in S.A.No.167 of 2004 and C.M.P.No.701 of 2004 .01.2012