Kolanjiammal vs Jaishankar
2021 Latest Caselaw 13550 Mad

                                                                             C.R.P. (NPD) No. 1263 of 2017

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 08.07.2021

                                                          CORAM

                           THE HON'BLE MR. JUSTICE A.D. JAGADISH CHANDIRA

                                             C.R.P. (NPD) No. 1263 of 2017
                                                         and
                                                C.M.P. No. 5907 of 2017

                1. Kolanjiammal

                2. Kannappan                                                            ... Petitioners
                                                            -vs-
                Jaishankar                                                              ... Respondent

                Prayer:- Civil Revision Petition filed under Section 115 of the Code of Civil
                Procedure, 1908, praying to set aside the fair and decretal order dated
                21.02.2017 made in I.A. No. 255 of 2013 in O.S. No. 23 of 1990 on the file of
                the Assistant Sessions Judge/Sub Court, Ariyalur and allow the Civil Revision
                Petition.
                                   For Petitioners     : Mr. C.Prabakaran

                                   For Respondents : Mr. M.V.Krishnan

                                                       ORDER

(The case has been heard through video conference)

The Civil Revision Petition has been field against the fair and decretal

order dated 21.02.2017 in I.A. No. 255 of 2013 in O.S. No. 23 of 1990 passed

by the Assistant Sessions Court/Sub Court, Ariyalur.

https://www.mhc.tn.gov.in/judis/

C.R.P. (NPD) No. 1263 of 2017

2. Brief facts of the case:-

The Respondent is the Plaintiff and the Petitioners are the Defendants in

O.S. No. 23 of 1990. The suit in O.S. No. 23 of 1990 had been instituted by the

Respondent/Plaintiff before the Sub Court, Ariyalur seeking for the reliefs of

partition, separate possession and mesne profits. The said suit was dismissed by

judgment and decree dated 28.10.1996. Aggrieved by the same, the

Respondent/Plaintiff filed A.S. No. 10 of 1997 before the Principal District

Court, Tiruchirapalli, which was allowed by judgment and decree dated

27.01.1998 and thereby, decreed that the Respondent/Plaintiff is entitled to half

share over the suit scheduled properties. Aggrieved against the judgment and

decree passed in A.S. No. 10 of 1997, the Petitioners/Defendants filed S.A.

No. 651 of 1998 and this Court was pleased to dismiss the same by order dated

28.01.2011 and thereby, confirmed the order passed in A.S. No. 10 of 1997.

Subsequently, on the strength of the said order, the Respondent/Plaintiff filed

an application in I.A. No. 255 of 2013 in O.S. No. 23 of 1990 before the

Assistant Sessions Court/Sub Court, Ariyalur seeking for the appointment of an

Advocate Commissioner to divide the suit properties into two equal shares and

allot one such share to the Respondent/Plaintiff. The Petitioners/Defendants

have filed counter in I.A. No. 255 of 2013 stating that some of the properties in

the suit scheduled properties could not be divisible and the extent of properties https://www.mhc.tn.gov.in/judis/

C.R.P. (NPD) No. 1263 of 2017

were also not mentioned properly in the earlier preliminary decree and the

boundaries of many of the suit scheduled properties were also not properly

mentioned and therefore, requested the Trial Court to re-determine the

preliminary decree by way of proper adjudication and to pass appropriate

orders. I.A. No. 255 of 2013 was allowed by order dated 21.02.2017 against

which, the present Civil Revision Petition has been filed.

3. The Learned Counsel for the Petitioners/Defendants would submit that

there are 20 items in the suit schedule and some of the suit scheduled properties

are not divisible and the extent of the suit scheduled properties were also not

mentioned clearly in the earlier preliminary decree. He would further submit

that the boundaries of many of the suit scheduled properties were also not

properly mentioned and thereby, the Petitioner had filed counter in I.A. No. 255

of 2013 seeking to re-determine the preliminary decree by way of proper

adjudication and to pass appropriate orders, whereas the Trial Court had

allowed that application causing great prejudice to the Petitioners/Defendants.

He would further submit that unless and until the preliminary decree is clarified

and a proper adjudication is made with regard to the suit scheduled properties,

the Petitioners/Defendants would be greatly prejudiced. Hence, he would pray

that the Civil Revision Petition may be allowed by setting aside the order dated https://www.mhc.tn.gov.in/judis/

C.R.P. (NPD) No. 1263 of 2017

21.02.2017 in I.A. No. 255 of 2013 in O.S. No. 23 of 1990 passed by the

Assistant Session Court/Sub Court, Ariyalur.

4. The Learned Counsel for the Respondent/Plaintiff would submit that

originally the suit was dismissed against which, the Respondent/Plaintiff filed

A.S. No. 10 of 1997 before the Principal District Court, Tiruchirapalli and the

First Appeal was allowed by judgment and decree dated 27.01.1998. He would

further submit that in the First Appeal, the Petitioners/Defendants have not

raised any objection in respect of the boundaries. He would further submit that

subsequently, he has also filed S.A. No. 651 of 1998 against the order passed in

A.S. No. 10 of 1997 and even in the Second Appeal, no such objections were

raised by the Petitioners/Defendants. He would further submit that the

objections were raised only in I.A. No. 255 of 2013 filed by the

Respondent/plaintiff seeking to appoint Advocate Commissioner to divide the

suit scheduled properties into two equal shares and allot one such share to the

Respondent/Plaintiff. He would further submit that the Trial Court taking into

consideration that these objections were not raised in the First Appeal and

Second Appeal, had rightly held that the suit scheduled properties have to be

partitioned into two equal shares and appointed the Advocate Commissioner

also. He would further submit that there was no error in the order passed by the https://www.mhc.tn.gov.in/judis/

C.R.P. (NPD) No. 1263 of 2017

Trial Court. He would further submit that only in order to harass the

Respondent/Plaintiff and to delay the partition, the present Civil Revision

Petition has been filed. Hence, he would seek for dismissal of the Civil

Revision Petition.

5. Heard the Learned Counsels and perused the materials placed on

record.

6. The Petitioners/Defendants, who have not raised any objection during

the hearing of the First Appeal or during the hearing of the Second Appeal,

could not raise their objections in the present Civil Revision Petition.

Therefore, the Trial Court had rightly allowed the application for appointment

of Advocate Commissioner to divide the suit scheduled properties into two

equal shares and allot one such share to the Respondent/Plaintiff. Viewed from

that perspective, there does not appear to be any infirmity or error in the order

dated 21.02.2017 in I.A. No. 255 of 2013 in O.S. No. 23 of 1990 passed by the

Assistant Sessions Court/Sub Court, Ariyalur, warranting any interference by

this Court in the exercise of discretionary process under Article 227 of the

Constitution.

https://www.mhc.tn.gov.in/judis/

C.R.P. (NPD) No. 1263 of 2017

7. Accordingly, the Civil Revision Petition is dismissed. Consequently,

the connected Miscellaneous Petition is closed. No costs.

08.07.2021 vjt

Index: Yes/No Internet: Yes/No Speaking Order/Non-speaking Order

To

1. The Assistant Sessions Court/Sub Court, Ariyalur.

2. The Principal District Court, Tiruchirapalli.

https://www.mhc.tn.gov.in/judis/

C.R.P. (NPD) No. 1263 of 2017

A.D. JAGADISH CHANDIRA, J.

vjt

C.R.P. (NPD) No. 1263 of 2017

08.07.2021

https://www.mhc.tn.gov.in/judis/