Madras High Court
R.Krishnaveni vs K.Subramaniyan on 13 October, 2023
S.A.(MD) No.594 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.(MD) No.594 of 2023
and
C.M.P.(MD) No.13877 of 2023
R.Krishnaveni ..Appellant
Vs.
K.Subramaniyan ...Respondent
PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside the
decree and judgment dated 20.07.2023 passed in A.S.No.19 of 2022 on the file of
the Subordinate Court, Ambasamudram, and to set aside the final decree and
judgment dated 13.12.2021 passed in I.A.No.148 of 2017 in O.S.No.691 of 1986
on the file of the Additional District Munsif Court, Ambasamudram.
For Appellant : Mr.M.Ponniah
For Respondent : Mr.N.Vignesh
JUDGMENT
This second appeal is filed challenging the judgment of the learned
Subordinate Judge, Ambasamudram in A.S.No.19 of 2022 confirming the order
passed in the final decree petition in I.A.No.148 of 2017 in O.S.No.691 of 1986
on the file of the learned Additional District Munsif, Ambasamudram.
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S.A.(MD) No.594 of 2023
2.It is the submission of the learned counsel for the appellant that the
father of the respondent, namely Kalathinathan Chettiar filed a suit in O.S.No.691
of 1986 seeking the relief of partition of 1/4th share in the suit properties. The suit
was decreed on 26.08.1992. Against the said judgment and decree, the
appellant/respondent filed an appeal in A.S.No.287 of 1992 on the file of the Sub
Court, Ambasamudram and that was dismissed on 17.07.1996. Challenging the
dismissal of the first appeal, the respondent filed S.A.No.924 of 1997 and that
also ended in dismissal on 24.08.2015. Thereafter, the respondent filed a final
decree petition in I.A.No.148 of 2017.
3.An Advocate Commissioner was appointed in the final decree petition
and he filed his report and plan. On the basis of the Advocate Commissioner's
report and after conducting enquiry, the learned Additional District Munsif passed
final decree on 13.12.2021. During the course of enquiry, the learned Additional
District Munsif found that out of the 5 suit properties, item Nos.2 and 4 are
classified as Sarkar Poramboke and therefore, they cannot be subjected for
partition. Excluding these properties, the final decree was passed in respect of
item Nos.1, 3 and 5.
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S.A.(MD) No.594 of 2023
4.The main ground, on which this second appeal is filed by the
appellant, is that during the course of enquiry, he produced Ex.R3 to show that the
appellant purchased part of item No.3 of the suit properties. However, this
document was not considered and item Nos.3 and 5 in its entirety were allotted to
the respondent leaving the appellant with item No.1 alone. His grievance is that in
item No.3 also, the appellant should have been allotted his part of the share.
5.In response, the learned counsel for the respondent submitted that the
Advocate Commissioner, considering the indivisibility nature of the property,
enjoyment of the parties and taking into consideration the value adopted by the
Engineer, rightly and appropriately allotted the share. Thus, he prays that this
second appeal may be dismissed confirming the final decree passed by the trial
Court.
6.Considered the rival submissions and perused the records.
7.It is the fact that the respondent's entitlement for 1/4th share is
confirmed up to this Court. The only point to be considered is whether the
division of share in the final decree by the learned Additional District Munsif is
just right and appropriate?
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S.A.(MD) No.594 of 2023
8.Reading of the Commissioner report shows that out of the 5 suit
properties, item Nos.2 and 4 are classified as Sarkar Poramboke and therefore,
they cannot be subjected for partition. The Advocate Commissioner in his report
stated that item No.1 situates in S.No.423/4 and the appellant is residing in the
property. As per the value adopted by the Engineer, the value of item No.1 is
Rs.11,70,000/-. As per the 1/4th share entitled to the respondent, the respondent is
entitled for Rs.2,92,500/-.
9.The 3rd item of suit property situates in S.No.423/4 and it is shown as
BGEF in the rough sketch. There is a tiled roof house. As per the valuation report
of the Engineer, the value of this property is Rs.2,12,000/-. The respondent’s share
of 1/4th comes to Rs.53,150/-. The 5th item of the suit property situated in S.No.
423/18 is shown as LMNI in the rough sketch. It is a vacant site. As per the value
adopted by the Engineer, the value of this vacant land is Rs.91,000/- and the
respondent is entitled for Rs.22,750/- towards his 1/4th share. Thus, the respondent
is totally entitled for a sum of Rs.3,68,250/- in monetary value towards his 1/4th
share of item Nos.1, 3 and 5 of the suit properties.
10.Taking into consideration the factum of enjoyment of the property,
the learned Additional District Munsif, Ambasamudram, allotted item Nos.3 and 5
of the properties towards 1/4th share to the respondent. Similarly, considering the
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S.A.(MD) No.594 of 2023
fact that the appellant is entitled for 3/4th share, he was allotted item No.1, which
is valued Rs.11,04,750/-. It appears that to arrive at this decision, the learned
Additional District Munsif considered the fact that the appellant was residing in
item No.1 of the suit property and therefore, this property was allotted to the
appellant.
11.With regard to the submission of the learned counsel for the
appellant that Ex.R3 was not considered by the learned Additional District
Munsif, Ambasamudram, while passing the final decree, this Court on going
through this document found that the appellant purchased certain items of
properties including 50% of item No.3 of the suit properties. It is his submission
that this document was not considered. The appellant already purchased 50% of
the property in item No.3 through the sale deed, however, this property also
subjected for partition. This Court is of the view that after this distant point of
time, especially after the trial Court, first appellate Court and second appellate
Court, had passed the decree in favour of the respondent of 1/4 th share in the suit
properties, cannot receive and consider this document. The appellant ought to
have filed this document and produced evidence in support of this document
during the trial in O.S.No.691 of 1986. Having failed to do so before the trial
Court and the first appellate Court, appellant cannot seek the Court to look into
this document. Therefore, this Court is of the considered view that the learned
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S.A.(MD) No.594 of 2023
Additional District Munsif, Ambasamudram had considered every aspects, ie., the
value of the property, enjoyment of the parties in respect of the properties and
made allotments and that was confirmed by the first appellate Court, which in the
considered view of this Court needs no interference.
12.In Sir Chunilal V. Mehta and Sons v. The Century Spinning Co.
Ltd., 1962 reported in AIR 1962 SC 1314, the Hon'ble Supreme Court formulated
what amounts to a substantial question of law, as follows:
1.Whether it is of general public importance (or)
2.Whether it directly and substantially affects the rights of parties and
if so,
3.Whether it is either an open question (in the sense not finally settled
by this Court or Privy Council or Federal Court) (or)
4.The question is not free from difficulty and calls for discussion of
alternative views.
13.In the case before hand, the appellant has not made out any of the
aforesaid grounds to formulate substantial question of law. There is no substantial
question of law arises for consideration in this second appeal.
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S.A.(MD) No.594 of 2023
14.In this view of the matter, this Second Appeal is dismissed. No costs.
Consequently, connected Miscellaneous Petition is closed.
Speaking : Yes / No 13.10.2023
NCC : Yes / No
Internet : Yes / No
Index : Yes / No
mm
To
1.The Subordinate Judge,
Ambasamudram.
2.The Additional District Munsif,
Ambasamudram.
3.The Section Officer (2 Copies),
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD) No.594 of 2023
G.CHANDRASEKHARAN, J.
mm
S.A.(MD) No.594 of 2023
13.10.2023
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