This appeal challenged an order remanding partition proceedings to the trial court for a fresh report by the Advocate Commissioner due to measurement errors. The High Court found no perversity in the appellate court's decision and dismissed the appeal.
Civil Miscellaneous Appeal stood dismissed; First Appellate Court order confirmed; no costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.03.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.M.A.No.4437 of 2019 C.M.P.No.25156 of 2019
1.V.Vimalavathy 2.P.Kalivaradhan 3.Tamizhselvan 4.Pugazhendi 5.Vetriselvi 6.Balaji 7.P.Karthikeyan .. Appellants vs.
1.V.Arumugam @ Sundaramurthy 2.Nagammal 3.Saroja 4.The Pondicherry Co-operative Central Land Development Bank Ltd Rep.by its Manager, Kolas Nagar, Pondicherry. 5.K.Loganathan .. Respondents
PRAYER : Civil Miscellaneous Appeal filed under Order 43 Rule 1 (U) of C.P.C, against the judgment and decree passed in A.S.No.27 of 2018 dated 26.03.2019 on the file of the Court of II Additional District Judge, Puducherry in reversing the judgment and decree passed in I.A.No.510 of 2010 in O.S.No.33 of 1992 dated 10.11.2017 on the file of the Court of Additional Sub-ordinate Judge, Puducherry.
For Appellants : Mr.A.Muthukumar
For Respondents :Mr.N.Suresh for RR1 to 3
RR4 & 5-Ex-parte
O R D E R
The judgment and decree passed in A.S.No.27 of 2018 dated 26.03.2019 reversing the judgment and decree passed in I.A.No.510 of 2010 in O.S.No.33 of 1992 dated 10.11.2017 is under challenge in the present Civil Miscellaneous Appeal.
“In the light of objections and from Ex.C1 and Ex.C2, it is made clear that the in all items the commissioner had left out common way for enjoyment of the parties but without proper measurement for the same. When the property is agricultural land and in plan of the advocate/commissioner when it is made clear, already there is existing road between the adjacent side of the property, then dividing the agricultural land and leaving considerable extent of the property for the use common path way, that too in a cultivating land, will certainly diminish the value of the property. The purpose for allotting pathway in each time will also certainly affect the parties from cultivating their extent. Moreover in the insheduled property in R.S.35/18 and R.S.36/18 out of 9 kuzhies 14 veesam 7 kuzhies 4 veesam a major portion was alloted to road by the advocate commissioner. Which will certainly diminish the value of land. The enjoyment of the properties by parties, at the time of measuring the property and dividing the same was not considered by the commissioner in his report which was properly objected by the appellants herein by way of their objections. Further some of the properties which are lesser in extent in item No.9,3, 9.4 were also divided into parts which according to the petitioner shall not be so because R.S.35/5 and R.S.29/13 are all smaller extend
and not feasiable for separate enjoyment. When the petitioner had filed the objection it is for the commissioner and court to ascertain whether the division of property is in light of the preliminary decree and convientent enjoyment of the parties. In this case on hand allotment of property by providing common way for the each property which totally comes to 1/4th area in the total extend that too in agricultural land will no way serve the purpose. Hence, this Court considers that the division of the property by the commissioner is not in accordance with the convienent enjoyment of the parties, therefore, it has to be scraped and also consider to reissue the warrant to the commissioner and direct him to inspect the property and to measure the same in the light of preliminary decree and also to consider the objections of the petitioner herein and to measure the same and divide by metes and bounds as per the preliminary decree. The order of the learned Additional Sub Judge in I.A.510/2010 is without answering the objections of the petitioner and accept the report as it is, without ascertain reason is not correct and therefore liable to be set aside. When it is decided that the order of the learned Additional Sub-ordinate Judge in I.A.510/2010 by accepting the commission report and allotting the shares in the light of commission report when it is not convenient enjoyment of the parties even objected at earliest by the petitioner which was not taken into consideration or discussed in her order so the same is liable to be set aside. For reason stated about the commissioner report is scrapped and the Commissioner warrant is reissued to the same advocate commissioner as there is no personal allegation against him, and he is directed to inspect the suit properties once against after issuing notice to both side and to consider the objection if any by both side, and to measure and divide the property to the convenient enjoyment of all the parties to the proceedings. His remuneration is fixed at Rs.7,500/- to be paid by the petitioner directly to the commissioner.
proceedings.
Sd/Assistant Registrar
//True Copy//
Sub Assistant Registrar
ssb
To
1.II Additional District Judge, Puducherry
2.Additional Sub-ordinate Judge, Puducherry.
+1cc to Mr.A.Muthukumar, Advocate SR.14330 +1cc to Mr.N.Suresh, Advocate SR.1459 0
C.M.A.No.4437 of 2019
SR II(CO) CB(31/03/2021)
3 issues framed by the court
Whether the First Appellate Court was correct in setting aside the Advocate Commissioner's report for re-measuring agricultural land to ensure convenient enjoyment.
Whether the Civil Miscellaneous Appeal challenging the First Appellate Court order deserved any interference.
Whether the partition proceeding conducted in accordance with the preliminary decree failed to provide convenient enjoyment to the parties.
V. Vimalavathy and others
V. Arumugam @ Sundaramurthy and others
S.M. Subramaniam
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
