Madras High Court
K.Jawahar vs Dr.N.Ponnusamy (Died) ... 1St on 12 April, 2022
S.A.(MD)No.349 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.349 of 2010
and
M.P.(MD)No.1 of 2010
1.K.Jawahar
2.J.Natchathal
3.J.Anuradha
4.J.Manohar
5.Murugesan ... Appellants / Appellants / Defendants 1 to 4 & 6
-Vs-
1.Dr.N.Ponnusamy (died) ... 1st Respondent / 1st Respondent / Plaintiff
2.P.K.Palaniappa Mudaliar
... 2nd Respondent / 2nd Respondent / 5th Defendant
3.Manickavalli
4.Kavitha
5.Prabhu
6.Premchand
(Respondents 3 to 6 are suo motu impleaded as Lrs of the deceased 1st
respondent vide order dated 09.03.2022)
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S.A.(MD)No.349 of 2010
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 21.11.2009 made in A.S.No.16
of 2008 on the file of the Principal District Court, Dindigul confirming the
judgment and decree dated 07.08.2007 made in I.A.No.375 of 2005 in
O.S.No.238 of 1997 on the file of the Sub Court, Palani.
For Appellants : Mr.A.Arumugam
for M/s.Ajmal Associates
For R3 to R6 : Mr.R.Nandakumar
For Advocate Commissioner : Mr.Anirudh R.Garga
JUDGMENT
The defendants in O.S.No.238 of 1997 on the file of the Sub Court,
Palani are the appellants in this second appeal.
2. It arises out of a suit for partition. The appeal is against the
passing of final decree. The basic facts are not in dispute. Four persons
namely Dr.N.Ponnusamy, S.K.Rajendran, P.K.Palaniappa Mudaliar and
Murugesan purchased the suit property under sale deed dated 02.07.1984
executed by the Sub Court, Dindigul. The property had been sold in a court
auction sale. On 15.07.1996, S.K.Rajendran sold his 1/4th share in the suit
property in favour of D1 to D4. Dr.N.Ponnusamy who had 1/4th share in
the suit property filed O.S.No.238 of 1997 seeking partition and separate
allotment of his 1/4th share in the suit property. Preliminary decree was
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S.A.(MD)No.349 of 2010
passed on 18.12.2000. Challenging the same, D1 to D4 filed A.S.No.236 of
2001 before the District Court, Dindigul. The first appeal was dismissed on
30.11.2004. Since no second appeal was filed, the preliminary decree
became final. Dr.N.Ponnusamy filed I.A.No.375 of 2005 for passing final
decree. An Advocate Commissioner was appointed and he submitted his
report and plan. The suit property was divided into five plots A to E. 'E'
plot was marked as a public pathway. Since issue arose as to how the four
plots were to be respectively allotted to the four sharers, the trial court held
a lot and based on the draw of lots, plot No.B was allotted to
Dr.Ponnusamy. On that basis, final decree was passed on 07.08.2007.
Challenging the same, the defendants filed A.S.No.16 of 2008 before the
Principal District Court, Dindigul. By judgment and decree dated
21.11.2009, the appeal was dismissed. Questioning the same, the second
appeal was filed. Though the second appeal was filed way back in the year
2010, only notice was ordered and it has not been admitted till date.
3. The learned counsel appearing for the appellants raised very many
contentions. The first contention advanced by him was that the plan drawn
by the Advocate Commissioner was incorrect. According to him, two plans
were drawn, one as per the survey records and other as per the state on
ground.
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S.A.(MD)No.349 of 2010
4. Since I was more than satisfied that the plan attached to the final
decree did not reflect the state on ground, I appointed a fresh Advocate
Commissioner and asked him to submit a report and plan by dividing the
suit property into four equal parcels. The Advocate Commissioner has filed
report dated 07.04.2022. The plan is also enclosed. The plan was actually
drawn by the municipal surveyor himself. No exception can be taken to the
measurements set out in the plan. In fact, the learned counsel on either side
fairly stated that the measurements are correct.
5. Now, the only issue that calls for consideration is whether the
allotment made by the courts below will have to be interfered with.
Dr.N.Ponnusamy passed away and his legal heirs have come on record. The
learned counsel appearing for the appellants submitted that the legal heirs
of the first respondent can be allotted the plot either on the extreme left or
on the extreme right. At present, the respondents have been allotted a plot
in the middle. The suggestion made by the learned counsel appearing for
the appellants is certainly persuasive and I called upon the respondents to
take instructions. The respondent's counsel responded with a counter
proposal. Even though the case was adjourned on as many as four
occasions, consensus could not be arrived at. The suit property could have
been brought to sale, if it is otherwise indivisible. But that is not the case.
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S.A.(MD)No.349 of 2010
6. Though the suit property as per the record measures 1.75 acres
(7082 sq.mt.), on ground, it measures only 6230.6 sq.mt. The Advocate
Commissioner after taking assistance of the municipal surveyor has divided
the same into four equal rectangular plots namely B C D & E. A small
portion on the northern side has been marked as plot 'A' and it is to be
dedicated for public. The courts below have allotted 'C' plot.
7. The only question that falls for consideration is whether I will have
to interfere with the said allotment. I went through the judgment passed by
the trial court. The learned trial Judge had stated that when suggestion for
making allotment based on the draw of lots was made, it was accepted by
both the parties. Draw of lots took place in the presence of both the counsel
in the open court and plot 'C' was allotted to the plaintiff based on the said
draw of lots. The respondents did not challenge the same when it took
place; the first appellate court has also concurred with the same. If the
method of allotment awarded by the trial court was not acceptable, the
learned counsel appearing for the defendants should have objected then and
there. When the property had been divided into four equal rectangular
plots, the plaintiff was definitely entitled to one plot and by draw of lots,
plot 'C' was allotted to him.
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S.A.(MD)No.349 of 2010
G.R.SWAMINATHAN.J.,
rmi
8. No substantial question of law really arises for consideration. The
second appeal is disposed of accordingly. No cost. The report of the
Advocate Commissioner together with the plan drawn by the municipal
surveyor will form part of the decree. The legal heirs of the first respondent
are directed to pay a sum of Rs.10,000/- as additional remuneration to the
Advocate Commissioner. Consequently, connected miscellaneous petition
is closed.
12.04.2022
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Subordinate Judge, Palani.
2.The District Munsif Court, Palani.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.349 of 2010
12.04.2022
https://www.mhc.tn.gov.in/judis
