Partly allowed

Lekshmi @ Santhi, v. Ponnumony

Madras HC22 Jan 2015CRP(MD)/95/2015

Case brief

AI extract

What is this about?

Madras High Court disposed of a Civil Revision Petition challenging an order dismissing a petition to re-issue a commissioner's warrant in partition suit proceedings. The court expunged a specific observation from the trial court's order and confirmed the rest, directing that objections be considered during final decree proceedings.

What did the court decide?

Expungement of specific remarks in the lower court's order; Civil Revision Petition disposed of without costs; consequential Miscellaneous Petition closed; objections to be considered at final decree

Lekshmi @ Santhi, Vs Ponnumony — Partition | Madras HC (2015)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED 22.01.2015

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CORAM:

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THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA

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C.R.P(MD)No.95 of 2015

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and M.P(MD)No.1 of 2015

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1.Lekshmi @ Santhi 2.Henry .. Petitioners Vs. 1.Ponnumony 2.Muthamma 3.Devaraj 4.Chinnayyan 5.Kunjaran 6.Kamlammal 7.Raju 8.Laila 9.Vijayakumari 10.Ruselraj 11.Selvaraj 12.Nadarajan 13.Moni @ Johnson 14.Ravi 15.Lawrence .. Respondents

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PRAYER : Civil Revision Petition is filed under Article 227 of the Constitution of India against the order and decreetal order, dated 17.07.2014 passed in I.A.No.744 of 2013 in O.S.No.496 of 1987 on the file of the I-Additional District Munsif, Kuzhithurai.

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For Petitioner : Mr.K.N.Thampi

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ORDER

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This Civil Revision Petition is directed against the order in dismissing the petition filed under Order 26 Rule 10(3) of the Code of Civil Procedure, 1908 in the final decree proceedings in I.A.No.744 of 2013 to re-issue the warrant of the commissioner.

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Heard the learned counsel appearing for the revision https://hcservices.ecourts.gov.in/hcservices/ petitioners.

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The contention of the learned counsel for the revision petitioners is that the report of the Commissioner is not correct, as the Commissioner has not taken into consideration the objections filed by the petitioners herein. The first petitioner has asked for allotment of the particular Survey No.513/6 in 1st schedule property, which is near the house of her parents. Similarly, in 6th Schedule property, the first petitioner claims that tomb of her husband is situate. As far as 6th Schedule property is concerned, it is not allotted to anyone, but there is a house belonging to the first petitioner and therefore, the entire suit 1st & 6th Schedule have to be allotted to her.

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The report of the Commissioner shows that 6th Schedule property was sold by the first petitioner/1st defendant to the second petitioner/16th defendant and now claims allotment of suit item Nos.1 & 6. According to the petitioners, the suit properties are divided by the Commissioner equally to all the share holders in his report.

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It is the grievance of the learned counsel for the petitioners that in the final decree proceedings, the properties have to be divided based on the quality of the soil and to the convenient and enjoyment of the parties. It is further pointed out by the learned counsel for the petitioners that the findings of the trial Judge that the report of the Commissioner is as per the preliminary decree and it has been divided taking into consideration of the quality of the soil and also metes and bounds. The said observation of the learned trial Judge is assailed by the learned counsel for the petitioners contending that the learned trial Judge has decided the final decree application itself. Therefore, he seeks for expunging the said remarks from the order.

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No doubt under Order 26 Rule 10(3) of the Code of Civil Procedure, 1908, the Court has got the discretion to order fresh commission or not. However, the Court is not bound to do so in every case. If the result of local investigation is found to be unsatisfactory and when the trial Court was dissatisfied with the proceedings of the Commissioner, it is better to discard the whole or re-issue the same. If the Commissioner had misconceived his duties to render his report valueless, it may be wiped out or superseded by reissuing the warrant to the same commissioner by a specific order to that effect. The Commissioner's report is only a piece of evidence and it is not binding on the Court.

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In the case on hand, though it is a final decree proceedings, the Court has felt that there is no need for reissuing the Commission to elucidate further details. The learned https://hcservices.ecourts.gov.in/hcservices/ counsel for the petitioners contended that the observation of the trial Court means to decide the final decree proceeding itself and

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prayed for removal of the same. Therefore, the finding of the trial Court in I.A.No.744 of 2013, as extracted below, in paragraph No.5 of the order is expunged.

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“ Mizahsh; mwpf;if kw;Wk ; tiuglj ;jpid ghprPyiz bra;jjpy; Mizahsh; jhth gl;oifr ; brhj;jpy ; Kjy; epiyj; jPh;g ;ghizapd; goa[k ; brhj;jpd ; eak; juk; ey;g [ jpy;g [ ghh;j ;J rhpahfj ; jhd ; ghfg;gphptpid bra;Js ;shh ; vd ;W ,e;ePjpkd;wk ; fUJfpwJ.”

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In all other aspects, the order of the learned trial Judge is confirmed. In view of the above facts, there is no reason to interfere with the order of the trial Court. The objections of the petitioners may be considered at the time of passing of the final decree application.

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Accordingly, the Civil Revision Petition is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/-

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Assistant Registrar(RTI)

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/True Copy/

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Sub-Assistant Registrar

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The I-Additional District Munsif, Kuzhithurai.

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+1cc to Mr.K.N.Thambi, Advocate, in SR. No.2903.

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C.R.P(MD)No.95 of 2015

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22.01.2015

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msm 27.01.2015 p3/3c(IT)

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https://hcservices.ecourts.gov.in/hcservices/

Lekshmi @ Santhi, v. Ponnumony

Case brief

What is this about?

What did the court decide?

Lekshmi @ Santhi, v. Ponnumony

Case brief

What is this about?

What did the court decide?

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Statutes considered

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