1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13.06.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA (MD) No.157 of 2011 and MP(MD)No.1 of 2011 A.Selvamoorthy .. Appellant/Defendant Vs. A.Chellathangam .. Respondent/Plaintiff Second Appeal filed under section 100 of CPC against the Judgment and decree dated 12.01.2011 passed in Appeal Suit No.57 of 2010 by the Principal Sub Court, Nagercoil confirming the order dated 22.07.2010 passed in I.A.No.81 of 2009 in Original Suit No.856 of 1996 by the Second Additional District Munsif Court, Nagercoil. For Appellant : Mr.D.Rajagopal For Respondent : Mr.C.Dhanaseelan JUDGMENT This second appeal has been preferred against the order passed in I.A.No.81 of 2009 in Original Suit No.856 of 1996 by the Second Additional District Munsif Court, Nagercoil, upheld in Appeal Suit No.57 of 2010 by the Principal Sub Court, Nagercoil. 2. The respondent herein as plaintiff has instituted Original Suit No.856 of 1996 on the file of the trial Court for the reliefs of partition and separate possession of her 1/5 share, wherein the present appellant has been shown as sole defendant. In Original Suit No.856 of 1996 a preliminary decree has been passed. In pursuance of preliminary decree passed in Original Suit No.856 of 1996, the respondent/plaintiff as petitioner has filed I.A.No.81 of 2009 for passing final decree. 3. The trial Court has passed a final decree on the basis of Commissioner's report and plan and also inconsonance with the quantum of share given to the plaintiff in preliminary decree. Against the final decree passed in I.A.No.81 of 2009, the disgruntled respondent/defendant as appellant has filed Appeal Suit No.57 of 2010. 4. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed Appeal Suit No.57 of 2010, whereby and whereunder confirmed the final decree passed by the trial Court in I.A.No.81 of 2009. Against the concurrent orders passed by the Courts below, the present second appeal has been preferred. https://hcservices.ecourts.gov.in/hcservices/ 2 5. The learned counsel appearing for the appellant/defendant has attacked the concurrent orders passed by the Courts below in item-wise. 6. In fact, this Court has perused the order passed by the trial Court, wherein it has been clearly stated that in Item Nos.1, 8, 9 and 10, the portions which are described as 'A' have been allotted to the share of the respondent /petitioner/plaintiff. With regard to item No.1, the learned counsel appearing for the appellant/defendant has strenuously contended that the portion which is shown as 'A' has been allotted to the share of the respondent/petitioner /plaintiff and immediately on the eastern side of that portion, the defendant is having his absolute property. Under the said circumstances, allotment made with regard to item No.1 is erroneous. 7. With regard to item No.8 it has been contended on the side of the appellant/defendant that the portion which is shown as 'A' has been allotted to the share of the plaintiff. But only southern portion can be allotted to respondent/petitioner /plaintiff and therefore, allotment made in respect of item No.8 is also erroneous. 8. With regard to item No.9, it has been contended on the side of the appellant/defendant that the entire property which has been described as item No.9 has once been mortgaged and the same has been redeemed by the father of the defendant and therefore, no allotment of share could be given to the respondent/petitioner/plaintiff. 9. With regard to item No.10 it has been contended on the side of the appellant/defendant that as per observation made by the High Court, some tombs are in existence in item No.10 and the same should be excluded while partitioning item No.10. But the observation made by the High Court has not at all been followed and therefore, allotment given to the plaintiff in item No.10 is also erroneous. 10. In residual it has been contended that in item No.1, entire share of the plaintiff can be allotted and no allotment can be made to the plaintiff in respect of other items. 11. On the side of the respondent/petitioner /plaintiff the entire contention urged on the side of the appellant/defendant has been repelled. 12. The first and foremost contention urged on the side of the appellant/defendant with regard to item No.1 is that on the eastern side of the property allotted to the plaintiff, separate property of the defendant is situate and therefore, for convenient enjoyment, the portion which has been shown as 'A' cannot be allotted to the plaintiff. https://hcservices.ecourts.gov.in/hcservices/ 3 13. It may be true that on the eastern side of the portion which has been shown as 'A', separate property of the appellant/defendant is situate. Simply because such property is situate as mentioned supra, the Court cannot come to a conclusion that allotment given to the plaintiff in item No.1 is erroneous. Therefore, the first and foremost contention raised with regard to item No.1 is rejected. 14. The second contention raised on the side of the appellant/defendant is with regard to item No.8. With regard to item No.8, objection has been raised on the side of the appellant/defendant to the effect that southern portion of the same has been allotted to the plaintiff instead of the portion which has been shown as 'A'. In fact, this Court has looked into the entire juxtaposition of item No.8. Both 'A' and 'B' portions are touching the street which situates immediately on the northern side. Since the street is situate immediately on the northern side of the portions which have been mentioned as 'A' and 'B', the suggestion given on the side of the appellant/defendant with regard to item No.8 cannot be accepted and therefore, the Courts below have rightly allotted the portion 'A' to the respondent/petitioner/plaintiff. 15. The third objection raised on the side of the appellant/defendant with regard to item No.9 is that the entire item No.9 has been mortgaged and subsequently redeemed by the father of the defendant and therefore, the entire extent of item No.9 should be allotted to his share. In fact, suit item No.9 has been divided into two portions as 'A' and 'B' and 'A' portion has been allotted to the share of the plaintiff. Considering the fact that the plaintiff is having 1/5 share in all the properties, allotment of 'A' portion to her is not erroneous. Therefore, the objection raised with regard to item No.9 also goes out without merit. 16. The fourth objection raised on the side of the appellant/defendant with regard to item No.10 is that there is an observation by the High Court with regard to item No.10 to the effect that in Item No.10 there are so many tombs and the same should be excluded while partitioning item No.10 and the Commissioner has not followed the same. In fact, this Court has perused the entire plan drawn in respect of item No.10. In fact, item No.10 has been divided into three parts viz, 'A, B, C'. The portion 'C' is nothing Samathis. Since as per the observations made by this Court, Samathis have been separately shown as 'C' portion, objection raised on the side of the appellant/defendant with regard to item No.10 also goes without merit. 17. The residual objection is that in item No.1 alone, the entire share of the plaintiff can be given. Since in all the items mentioned supra, the plaintiff is having 1/5 share, the suggestion put forth on the side of the appellant/defendant cannot be accepted. https://hcservices.ecourts.gov.in/hcservices/ 4 18. On the side of the appellant/defendant it has also been contended that at the time of division made by the Advocate Commissioner, the appellant/defendant has not been present. On that ground also the concurrent orders passed by the Courts below are liable to be set aside and the matter is liable to be remitted to the file of the trial Court. 19. It is not the case of the appellant/defendant that no notice has been given to him. The Advocate Commissioner after considering the quantum of shares of the plaintiff and also after considering the juxtaposition of the items mentioned supra, has rightly allotted shares to the plaintiff as mentioned in the concurrent orders. In view of the discussion made earlier, this Court has not found any valid force in the contention urged on the side of the appellant/defendant and altogether the present second appeal deserves to be dismissed. 20. In fine, this second appeal deserves dismissal and accordingly is dismissed with cost at the stage of admission. Connected Miscellaneous petition is also dismissed. The concurrent orders passed by the Courts below are confirmed. Sd/- Deputy Registrar(LA) /True Copy/ Assistant Registrar To 1.The Principal Subordinate Judge, Nagercoil 2.The Second Additional District Munsif, Nagercoil +1cc to Mr.D.Rajagopal, Advocate, Sr.No.18199 +1cc to Mr.C.Dhanaseelan, Advocate, Sr.No.18382 SA (MD) No.157 of 2011 13.06.2011 mj SMA/27.6.2011/5C/4P https://hcservices.ecourts.gov.in/hcservices/