Madras High Court
J.Sankar Parameswaran vs Chitra Devi on 15 July, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
A.S.No.66 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 07.07.2025 Pronounced on : 15.07.2025
Coram:
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
A.S.No.66 of 2025
and
C.M.P.No.1077 of 2025
J.Sankar Parameswaran .. Appellant/Defendant
Vs.
Chitra Devi .. Respondents/Plaintiff
PRAYER: Appeal Suit is filed under Section 96 of C.P.C, to set aside the
order and decreetal order in I.A.No.114 of 2018 in O.S.No.157 of 2014
dated 12.07.2024 on the file III Additional District Court, Coimbatore.
For Appellant : Mr.V.Raghavachari, Senior Counsel
for Mrs.V.Srimathi
For Respondent : Mr.P.M.Duraiswamy
JUDGMENT
In a suit for partition filed by the sister, Chitra Devi, against her
brother, Sankar Parameswaran, a preliminary decree was passed by the
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Trial Court on 24.01.2017. Thereafter, the plaintiff filed applications
under Order XX Rule 12 and Order XXVI Rule 13 of the Civil Procedure
Code seeking division of the suit schedule property in accordance with
the preliminary decree and for appointment of an Advocate
Commissioner to demarcate and effect partition of the property.
2. The Court below, based on the Commissioner’s report and
other materials on record, passed the final decree as follows:
"2.that the petitioner be and the same is
hereby allotted the green colour marked B4
porition in Ex.C3 in Item No.1 of the schedule
property which includes 0.96 acres with
coconut trees in 216/3part and 7.44 acrres in
S.F.No.216/3 and 217/3 in total 8.40 acres.
3.that the respondent be and the same is
hereby allotted the blue marked portion A4 in
Ex.C3 plan which lies in S.F.No.216/3 and in
217/1, 219/1. 220/1. The open well is to be
trated as common, the bore-wells are to be
enjoyed separately.
4.With respect to the house property
since the petitioner be and the same is hereby
allotted the front portion in the agricultural
lands and as she is ready to take any portion in
the house property, the petitioner be and the
same is hereby allotted B1 in Ex.C5 and the
respondent be and the same is hereby allotted
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the front portion A1 in Ex.C5.
5.that Ex.C3 and Ex.C5 plans shall form
part of the final decree.
6.Since the pathway measures 1.30 acres
and the same can be used as common pathway
by both parties, taking into consideration of the
guideline value and ½ right of the petitioner
over the pathway portion, this Court holds that
an amount of Rs.4,55,000/- is to be paid as
value for the pathway right by the petitioner to
the respondent, if both agree to use the portion
as common pathway. If the petitioner, does not
want to use the pathway as common pathway
along with the respondent then she has to work
out her remedy."
3. The present appeal has been filed by the defendant alleging
that the Advocate Commissioner’s report is unclear regarding the mode
of division of the landed properties. It is contended that the land has been
divided in such a manner that the portion allotted to the plaintiff is in
close proximity to the highway, whereas the portion allotted to the
defendant is away from the highway and of inferior quality.
4. It is further contended that the bore-wells and electric motor
pump set are located entirely within the portion allotted to the plaintiff,
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thereby leaving the defendant with land lacking irrigation facilities.
Additionally, the Court has granted access to the plaintiff's portion
through the defendant’s land, without valid justification for abandoning
the existing pathway. This, according to the appellant, is irrational and
warrants interference.
5. It is also alleged that in respect of the residential house,
while the Advocate Commissioner had reported to be indivisible, the
Court has directed a horizontal division, allotting the front portion to the
defendant and the rear portion to the plaintiff, which, according to the
appellant, would cause inconvenience to both parties. He claims the
house, in which he is currently residing, should have been allotted
exclusively to him and the half the value of the property ought to have
been given to the plaintiff or adjusted with the agricultural land.
6. The appellant also contends that the plaintiff approached the
Court with unclean hands, having projected a fabricated Will, and
therefore ought not to have been granted any relief without a proper
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appreciation of the facts. The Commissioner's report, which is neither
pragmatic nor fair, relied upon by the Court below, contrary to the views
expressed by both the Hon'ble Madras High Court and the Hon'ble
Supreme Court in the earlier proceedings.
7. The learned senior counsel appearing for the appellant
submitted that in an earlier round of litigation, during the challenge to the
preliminary decree, the Hon'ble High Court had suggested that the
dwelling house, i.e., the ‘B’ schedule property, be allotted to the
appellant, since he has been residing in the house since the time of his
marriage. The ‘A’ schedule property was proposed to be allotted to the
respondent/plaintiff, and any difference in market value was to be
compensated by the appellant. This suggestion was made in the order
dated 25.02.2019 in A.S. No. 429 of 2018, which was subsequently
challenged by the respondent/plaintiff before the Hon’ble Supreme
Court. The Hon’ble Supreme Court set aside the said order insofar as it
related to the allotment of ‘A’ and ‘B’ schedule properties in the appeal
against the preliminary decree and left the issue open for consideration
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by the trial Court at the stage of final decree proceedings, without being
influenced by any prior observations. Despite this, the Court below
proceeded to pass the final decree without properly appreciating the
Commissioner’s report, the objections raised, and the evidence adduced
by the parties.
8. Per contra, the learned counsel appearing for the
respondent/plaintiff submitted that the Commissioner's report and the
accompanying sketch have clearly explained the nature of the properties
and suggested multiple options for division. As the portion allotted to the
plaintiff is landlocked, the trial Court rightly provided access to her share
through the defendant's land, ensuring access. However, the Court below
has appropriately awarded compensation for the loss of land, and the
respondent/plaintiff was given the option either to pay the compensation
and retain the right of pathway or to make her own arrangements for
alternate access. Further, it is not correct to say the appellant left without
irrigation facility. The common open Well is given to both the parties to
enjoy it equally.
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9. Insofar as the residential building, the counsel states that the
plaintiff’s rightful share cannot be denied merely because the defendant
currently resides in it. The property, being of higher value than the
agricultural land and having appreciation potential, cannot be excluded
from partition. The plaintiff has expressed her willingness to accept
either the front or rear portion of the house and she is not particular about
it.
10. The Advocate Commissioner’s report, particularly Mode 1,
suggests that division of the house is practically feasible as the property
is a corner plot with access on two sides. The total area measures 4,439
sq. ft., and the building situated in the middle includes a ground floor
residential portion of 1,611 sq. ft., and a shop of 733 sq. ft. The first floor
plinth is 1,611 sq.ft. The Commissioner's report has proposed alternative
modes of division, including: Vertical partition of the building or
Complete demolition of the structure and equal division of the vacant
land.
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11. The Court below accepted the mode 1 suggested by the
Advocate Commissioner, allotting the front portion of the residential
property to the appellant. Therefore, it was submitted that the property
has been divided equitably among the sharers, and the present appeal has
been filed only with the intention to delay the division and demarcation
of the property.
12. Point for Determination:
Whether the final decree is not pragmatic or unreasonable?.
13. The total extent of the first schedule property, which is
agricultural land is 17.77 acres. This land was ordered to be divided
equally between the plaintiff and the defendant.
14. According to the schedule description, there is a well in
Survey No.217, equipped with a 7.5 HP electrical motor, and the parties
are entitled to a 2/7th share in the Well and Motor, along with the right to
draw water two days a week in line. The sketch indicates that the Well is
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located in the portion allotted to the plaintiff. Additionally, two bore-
wells are marked in the sketch, though they are not specifically
mentioned in the suit schedule property. They are also in the plaintiff's
position
15. The trial Court, considering the existence of one open Well
and two bore-wells, directed that:
• The open Well shall be treated as common property, and
• The bore-wells may be used separately by each party.
The landed property is measuring 17.77 acres as per title documents (and
17.64 acres as per the Commissioner’s report), 1 acre 30 cents is
earmarked for a common pathway. Thereafter:
• 8.19 acres were allotted to the appellant, and
• 8.40 acres were allotted to the respondent.
A lesser extent of land given to the appellant, considering that his portion
contains 125 yielding coconut trees, while the respondent’s portion has
only 58 yielding coconut trees. Hence, on this score, the appellant cannot
have any grievance.
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16. The contention of the appellant that he has been left without
irrigation facilities is not fully correct. The right to draw water from the
open Well is given to him. As per the earlier settlement, both parties
originally shared the Well two-days in line per week. By division, each
would have one day a week for water access.
17. However, it is also a reality that the yield from a single open
Well once a week may not be sufficient to irrigate the entire extent of
land, which is about 17 acres, that is why two additional bore-wells were
installed. Therefore, this Court is of the view that the bore-wells should
also be treated as common, similar to the open Well, ensuring with
access to irrigation for both parties.
18. Except for this modification, no other interference is
warranted with respect to the division of the agricultural property.
19. With regard to the residential house, the appellant contends
that since he has been residing in the house since 1999, the entire
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building ought to have been allotted to him exclusively. Taking note of
the fact that the residential land and building are more valuable than the
agricultural land and that the division of the building is feasible, the
Court below had rightly accepted the Commissioner’s report regarding
the proposed division. The rear portion, which includes a
commercial/shop area measuring 733 sq.ft., is allotted to the
respondent/plaintiff, whereas the front portion, having access on two
sides, one from Pollachi-Coimbatore Main Road and another from
Kamarajar Street is allotted to the appellant/defendant.
20. The approved building plan and the Commissioner’s sketch
indicate that a wall is required to be erected along East-West direction to
divide the building. While some amenities will require modification or
rearrangement, such changes are not impracticable. Therefore, this Court
finds no valid ground to interfere with the division of the residential
house, which is Schedule 'B' property in the suit. No major structural
change be done without the consent of other party, if it likely to damage
the other portion.
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21. In the result to facilitate equitable irrigation as far as the
Schedule 'A' agricultural property is concerned, except for a minor
modification that both parties shall jointly enjoy the use of the bore wells
along with the open Well for irrigation, no further alteration is necessary.
• Both parties shall share the water from the open Well and the bore-
wells subject to need and mutual convenience, and
• Parties shall permit free passage of water through their respective
lands to reach the other party land. The use of electric motor pump
sets and water channels shall be common.
22. In the result, this Appeal Suit is partly allowed, subject to
the above modification. Consequently, the connected Civil Miscellaneous
Petition is closed. There shall be no order as to costs.
15.07.2025
Index: Yes/No
Speaking/Non Speaking order
Internet: Yes
Neutral Citation: Yes/No
rpl
To
1.The III Additional District Court, Coimbatore.
2.The Section Officer, V.R.Section, High Court of Madras, Chennai.
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DR.G.JAYACHANDRAN,J.
rpl
Judgment made in
and
15.07.2025
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