Madras High Court
Chelladurai vs Selvarani on 12 October, 2022
S.A.No.825 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.10.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.825 of 2022
and
C.M.P.No.16935 of 2022
Chelladurai
... Appellant
Vs.
1.Selvarani
2.Rameshwari
3.Lakshmikantha
4.Aruchamy
... Respondents
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgement and Decree dated 24.09.2021 made in
A.S.No.134 of 2019 on the file of the III Additional District Judge,
Coimbatore confirming the Fair and Final decree dated 07.06.2017 in
I.A.No.740 of 2012 in O.S.No.92 of 2009 on the file of the learned
Subordinate Judge, Pollachi.
For Appellant : Mr.V.Anandhamoorthy
1/8
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S.A.No.825 of 2022
JUDGMENT
The 2nd defendant/respondent has filed this appeal challenging the
final decree passed in I.A.No.740 of 2012 in O.S.No.92 of 2009 by the Sub
Judge, Pollachi. The facts in brief are as follows:-
2. The respondents 1 to 3 herein had filed the suit O.S.No792 of 2009
on the file of the Sub Judge, Pollachi seeking a preliminary decree for
partition and separate possession of their 3/5th share in the suit schedule
property. After contest, the suit was decreed on 22.02.2012 granting a
preliminary decree for the 3/5th share of the respondents 1 to 3 herein.
Thereafter, respondents 1 to 3 herein had filed I.A.No.740 of 2012 for
passing a final decree in terms of the preliminary decree by appointing an
Advocate Commissioner to divide the suit property with the help of Taluk
Surveyor into 5 shares and allotting 3 shares therein to the appellant.
3. The appellant herein and the 1st defendant, his father had filed a
counter inter-alia contending that the petition for passing of final decree
was pre-mature and a fraudulent one in as much as the appellant has filed an
appeal challenging the judgment and decree in OS.No.92 of 2009 and in the
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S.A.No.825 of 2022
above appeal was with a condone delay and the notice had been issued to
the respondents 1 to 3 herein.
4. The appellant had further contended that the Advocate
Commissioner had divided the property into two parts in the south. The
appellant had also questioned the divisions that had been made by the
Advocate Commissioner. The Advocate Commissioner had not divided the
property properly and had not defined the pathway, bore well, common
areas etc. However, the learned Sub Judge, Pollachi had passed the final
decree allotting A to C schedules properties to the respondents 1 to 3 herein
and the D and E schedule properties to the appellant and his father and the
common well and common pathway was divided equally amongst the
parties. Challenging the said final decree the appellant herein had alone filed
an appeal in A.S.No.134 of 2019 on the file of the III Additional District
Judge, Coimbatore.
5. The 1st defendant/4th respondent herein had not contested the final
decree and in so far as the 1st defendant/4th respondent herein was
concerned the final decree had attained finality. The learned III Additional
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S.A.No.825 of 2022
District Judge, by its judgment and decree dated 24.09.2021 was pleased to
pass the final decree. The Appellate Court had observed that though the
willingness of the appellant regarding the allotment of properties as shown
in the Commissioner’s Report was called for, the appellant had not come
forward to exercise his option. The respondents 1 to 3 had also expressed
their willingness to give up the A Schedule property to the appellant and that
they were ready to take the properties described in the C, D and E schedules
which clearly shows that they were not interested in taking the farm house.
The Court had observed that only reason for the appellant and the 1st
defendant for not participating and exercising their option was to prolong the
final decree proceedings. The appellate Court had analyzed each of the
objections taken by the appellant and given a finding thereon. Challenging
the same the appellant is before this Court.
6. Heard the counsel appearing for the appellant.
7. The ground of challenge is that the Commissioner had not valued
the farm house and had not mentioned the correct particulars regarding the
common well and bore well with their measurements. The appellant had also
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S.A.No.825 of 2022
contended that the Commissioner has wrongly allotted the A Schedule
property to the 1st respondent which is a farm house of considerable value,
apart from raising other objections about the allotment. The Courts below
have observed that the 1st contention of the appellant regarding the
measurement of the property cannot be countenanced since the measurement
has been taken as per the revenue records and the patta of both the parties.
As per these documents the total property available was an extent of 8.88
acres and not 9.50 acres as contended, the Commissioner who has visited
the site had measured and arrived at this conclusion. With regard to the
allotment of the farm house, the appellant would contend that the Court
below has failed to appreciate that if one party is allotted the farm house
along with his share it would result in a disproportionate allotment of shares.
8. The Courts below have found that even pending the final decree
proceedings the respondent had offered the A schedule property with the
farm house to the appellant herein and the Court below had called for his
willingness, however, the appellant has not chosen to respond to the above
request.
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S.A.No.825 of 2022
9. With reference to the demarcation of the common well, bore well
and path way, the Courts below have held that the area along the common
well and borewell as also the pathway leading to it has to be kept in common
and the measurements of the common well area and common pathway has
been provided by the Commissioner. Therefore each and every one of the
objections raised by the appellant has been considered by the Courts below
and a finding given against the appellant. Therefore, this Court sitting in
appeal cannot re-appreciate the finding of the Court’s below especially when
the appellant has not been able to show that such finding is perverse and
contrary to ground reality. Therefore, taking note of the above and also the
fact that no Substantial Question of Law arises in the above Second Appeal
the same is dismissed. No costs. Consequently, the connected Civil
Miscellaneous Petition is closed, if any.
12.10.2022
Index : Yes/No
Internet : Yes/No
shr
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S.A.No.825 of 2022
To
1.The III Additional District Judge, Coimbatore.
2.The Subordinate Judge, Pollachi.
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S.A.No.825 of 2022
P.T. ASHA, J,
shr
S.A.No.825 of 2022
and
C.M.P.No.16935 of 2022
12.10.2022
https://www.mhc.tn.gov.in/judis
