R.Subbaegowder vs Smt.Marakkal
2022 Latest Caselaw 16136 Mad

                                                                             S.A.No.1132 of 2021


                             IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                            DATED: 12.10.2022

                                                  CORAM

                                  THE HONOURABLE Ms. JUSTICE P.T. ASHA

                                             S.A.No.1132 of 2021
                                                     and
                                           C.M.P.No.21760 of 2021

                     R.Subbaegowder                                    ...Appellant
                                                     Vs

                     1.Smt.Marakkal
                     2.Smt.Suppathal
                     3.Smt.Sarasammal
                     4.Smt.Lakshmi                                     ... Respondents

                     Prayer: Second Appeal is filed under Section 100 of C.P.C against
                     the Judgement and Decree dated 17.02.2021 made in A.S.No.42 of
                     2020 on the file of the I Additional District Judge, Coimbatore,
                     confirming the final decree dated 20.07.2020 made in I.A.No.858 of
                     2014 in O.S.No.744 of 2011 on the file of the Principal Subordinate
                     Judge, Coimbatore.




                     1/15



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                                                                                    S.A.No.1132 of 2021




                                       For Appellant    : Mr.S.Karthikei Balan
                                       For Respondents : No Appearance for R1 to R3
                                                        Mr.C.Veeraraghavan [R4]


                                                       JUDGEMENT

The respondents/defendants has filed the above Second Appeal

challenging the final decree passed in I.A.No.858 of 2014 in

O.S.No.744 of 2011 on the file of the Principal Subordinate Judge,

Coimbatore.

2. This Second Appeal was admitted on the following

Substantial questions of law:

''1. Whether the Courts below are right in

accepting the report of the Advocate Commissioner

without considering the objections that share was not

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equitably distributed?

2.Whether the Courts below are right in allotting

the shares in such a manner that would diminish the

value of the property?

3.Whether the Courts below are correct and

justified in passing the final decree by ignoring the

settled principle and proposition of law that, when the

procedure adopted by the Commissioner is flawed and

illegal, final decree cannot be passed on the basis of

that report?''

3. The brief facts which has culminated in the filing of the

second appeal are herein below narrated. The respondents herein as

plaintiffs, had filed the suit in O.S.No.550 of 2009 on the file of the

District Court at Coimbatore, which was later transferred to the file of

the Principal Subordinate Court, Coimbatore and re-numbered as

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O.S.No.744 of 2011, for partition and separate possession of the suit

schedule property. The appellant herein had filed O.S.No.578 of 2009

on the file of the Subordinate Court, Coimbatore for declaration that

he is the absolute owner of the suit schedule property. The suit

property in both the suits were the same. The appellant had claimed an

exclusive right to the property on the basis the Will dated 15.07.2005

executed by his father Rangae Gowder. By Judgment and Decree

dated 30.07.2014 a partition was granted by the learned Principal

Subordinate Judge in O.S.No.744 of 2011 and the suit O.S.No.578 of

2009 was dismissed. Thereafter, the respondents herein initiated the

final decree proceedings in I.A.No.858 of 2014 to divide the

properties into five equal shares and to allot a share each to the

respondents herein.

4. The appellant herein had filed counter inter-alia raising a

preliminary objection that since he has challenged the judgment and

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decree passed in the above suits in A.S.Nos.1 of 2015 and 2 of 2015

before the learned District Judge, Coimbatore, the final decree

proceedings were pre-mature. He would also question the jurisdiction

of the Court. However, the learned Principal Judge had appointed a

Commissioner who had visited the suit schedule property along with a

Surveyor and measured the same and divided the property into five

equal shares, leaving a Well and path way in common to the sharers.

The appellant had filed his objections to the Commissioner's report

and ultimately, the learned Principal Subordinate Judge had passed the

final decree.

5. In the meanwhile, during the pendency of the final decree

proceedings, the respondents 1 to 3 had filed a memo stating that they

do not wish to proceed further with the final decree proceedings, since

they had settled the dispute with the appellant and had entered into a

compromise with him. They had filed a memo seeking the Court's

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approval for appointing a new counsel. Since their earlier counsel was

not willing to accept the compromise that was entered into between

the appellant and the respondents 1 to 3 herein.

6. The Principal Subordinate Judge by his judgment and decree

dated 20.07.2020 passed the final decree in terms of the

Commissioner's Report and Plan and both of these formed part of the

decree. Aggrieved by the same, the appellant had filed A.S.No.42 of

2020 on the file of the I Additional District Court, Coimbatore. The

learned Judge, on hearing the contention of both parties, ultimately

dismissed the First Appeal and confirmed the decree passed by the

learned Principal Subordinate Judge. Challenging the same, the

appellant is before this Court.

7. The main objection raised in the grounds of appeal is that the

Commissioner had not independently valued the building and the trees

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which was also part of the properties in order to partition the property

in equal moieties to each of the sharers. The appellant had also

contended that the respondents 1 to 3 had relinquished their rights in

the property in favour of the appellant and had also filed a memo to

that effect. Considering the fact that the appellant was allotted the

shares of plaintiffs 1 to 3, the learned Judge ought to have allotted a

contiguous area to the appellant under the division now approved by

the Court, the 4th respondent / 4th plaintiff's share cut across the

appellant's share. They would therefore contend that the Advocate

Commissioner had breached the mandate given to him under the

provisions of Order 26 Rules 13 and 14 of C.P.C. The Commissioner's

Report was flawed and therefore cannot be taken on file.

Consequently, the decree passed has to necessarily be set aside.

8. The learned counsel for the appellant had vehemently made

his submissions with emphasis on two grounds, one that the

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Commissioner had not valued the trees and building on the suit

property individually and therefore, the partition granted is an

inequitable one and that the Commissioner who had taken note of the

fact that the appellant has been allotted the shares of the respondents 1

to 3 ought to have granted the appellant a single unit covering the

shares of himself and respondents 1 to 3. Now, by reason of the final

decree based on the Commissioner's Report and plan Exs.C1 and C2,

the 4th respondent was allotted sites running between the portions

allotted to the appellants. The appellant's property gets divided. He

would therefore contend that the final decree passed on this erroneous

Commissioner's Report has to be set aside. In support of his

contention, the learned counsel for the appellant relied on the decision

of this Court in the case of Abdul Rasheed vs. Abdul Jabbar reported

in 2019 (2) CTC 435.

9. Per contra, Mr.C.Veeraraghavan, learned counsel appearing

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on behalf of the respondents would submit that the building and most

of the usurpers are situate in the portion allotted to the appellant and

if really some one has to be aggrieved by the inequitable division, it is

the 4th respondent. Since admittedly in the share now allotted to the

4th respondent there are no buildings, bore Well nor very many trees.

The portion allotted to the 4th respondent is demarcated as "C" in the

Advocate Commissioner's plan.

10. Heard the learned counsel on either side and perused the

materials available on record.

11. The primary grievance of the appellant is that there is an

inequitable allotment of shares, this argument in the first blush

appears to be attractive. However, a perusal of the Judgment passed by

the lower appellate Court would show that the majority of the trees are

found in the property allotted to the share of the respondents. Further,

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a perusal of the Commissioner's plan Ex.C2 would show that the

buildings, bore Well, etc., are situate only in the A and B portion,

which falls to the share of the appellant herein. Therefore, the

argument that the Commissioner's Report is flawed since there is an

inequitable allocation, cannot be raised by the appellant, as most of

the usufructs are available to the appellant and if some one should

object to it, it is the 4th respondent who has to object to the allotment,

however, she has not raised any objection to the same.

12. The next argument which is vehemently put across by the

appellant is that he has not been given contiguous land, though

pending the final decree proceedings, the respondents 1 to 3 had filed

a memo stating that they had settled the disputes with the appellant.

However, since they had not produced any documents to show that

their share has been released / relinquished in favour of the appellant.

Although the memo filed by them on 27.11.2017, would talk about the

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compromise and their decision not to proceed with the appeal, they

had however failed to produce the written agreement which would

prove that the respondents 1 to 3 had relinquished their right in favour

of the appellant. Even in the appellate stage, the document has not

surfaced the learned I Additional District Judge to observe in

paragraph No.16 of the judgment that there was no document to show

that the plaintiffs 1 to 3 have given up their shares.

13. Considering the above, the learned Judge has treated the

allotment of shares that has been effected independently. If really there

was an agreement, the same could have been produced by the

appellant before the Court and in equity he could have requested that

an entire contiguous piece of land be allotted to him. That the

appellant and the respondents 1 to 3 had not entered into a written

compromise is evident from the fact that on 11.08.2022, the appellant

and the respondents 1 to 3 have filed a joint memo of compromise into

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this Court, wherein they have stated that they have settled their shares

in favour of the 1st plaintiff (however, no settlement deed has been

filed) and that they wish to withdraw their claim. Therefore, when the

decree was being passed by both the Courts below, the appellant has

not shown his right and interest to an undivided 4/5th share. Therefore,

no exception can be taken to the judgment and decree of the Courts

below and admittedly all the portions that have been allotted are of the

same extent and each of them have an access to the path way on the

West. The judgment relied upon by the appellant that the mandate of

Order 26 Rule 14 and 12 of Order 26 C.P.C., has not been complied

with, is without basis. Moreover, the decision relied on by the learned

counsel for the appellant is distinguishable on facts and the same is

not applicable to the facts of the present case. In the instant case, the

major chunk of the usufructs are admittedly situated in the lands

allotted to the appellant and other respondents in the Northern portion

and the 4th respondent has not raised any objection for the same. I

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therefore see no reason to set aside the judgment and decree of the

Courts below and the substantial questions of law also are answered

against the appellant.

14. In the result, this Second Appeal is dismissed and the

Judgement and Decree dated 17.02.2021 made in A.S.No.42 of 2020

on the file of the I Additional District Judge, Coimbatore, confirming

the final decree dated 20.07.2020 made in I.A.No.858 of 2014 in

O.S.No.744 of 2011 on the file of the Principal Subordinate Judge,

Coimbatore are confirmed. No costs.

12.10.2022

Index : Yes/No Speaking order/non-speaking order ssn

https://www.mhc.tn.gov.in/judis S.A.No.1132 of 2021

P.T.ASHA, J.,

ssn

To:

1. The I Additional District Judge, Coimbatore.

2. The Principal Subordinate Judge, Coimbatore.

3. The Section Officer, V.R.Section, High Court, Madras.

S.A.No.1132 of 2021 and C.M.P.No.21760 of 2021

https://www.mhc.tn.gov.in/judis S.A.No.1132 of 2021

12.10.2022

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