1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:04.02.2011 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A(MD) No.48 of 2011 1. Lysammal 2. Maria Pushpam 3. Mohan Dhas 4. Saroja 5. Russalin 6. Paul Pastin Jeya Prakash 7. Jeyanthi Christobel : Appellants/Plaintiffs Vs. 1. Soundara Raj 2. Indira Rani : Respondents/Defendants PRAYER : Second Appeal filed under Section 100 of Civil Procedure Code, praying this Court to set aside the judgement and decree made in A.S.No.12 of 2010,dated 09.06.2010, on the file of the Subordinate Judge, Padmanabhapuram, confirming the final order and final decree made in I.A.No.200 of 2008 inO.S.No.177 of 2006, dated 24.11.2009, on the file ofthe Principal District Munsif, Padmanabhapuram. For Appellants : M/s.M.Dennis Joe JUDGMENT The appeal memorandum, copies of judgment of the lower appellate court and its decree and also the order and decree passed by the trial court and other documents produced in the form of typed-set of papers were also perused. 2. The plaintiffs in the original suit are the appellants in the second appeal. They filed a suit claiming 7/8th share in all the suit properties, totally five in number and praying for partition of the suit properties and allotment of their 7/8th share to them. 3. After trial, the Principal District Munsif, Padmanabhapuram passed a preliminary decree for partition as prayed for. As against the Preliminary Decree, none of the parties to the suit chose to file any appeal. The appellants herein/plaintiffs thereafter filed an application for passing a Final Decree in I.A.No.72 of 2008 in O.S.No.177 of 2006, on the file of the trial court namely, Principal District Munsif Court, Padmanabhapuram. An Advocate Commissioner was appointed who inspected the suit properties, measured the same with the help of a Surveyor and submitted a report suggesting two alternative modes of division. One of the modes of division suggested by the Advocate Commissioner was to the effect that in all the five items of suit properties, narrow portions be allotted to the share of the https://hcservices.ecourts.gov.in/hcservices/ 2 defendants, whereas more convenient places to the detriment of the defendants were suggested to be allotted to the share of the plaintiffs. In the other alternate mode, instead of small portions being allotted to the defendants which would be of no use to the defendants, based on a memo given by the defendants, the learned Commissioner suggested allotment of 8.5 cents in Item No.2 alone to represent their 1/8th share in all the five items of suit properties and for the share of the plaintiffs besides the entire items 1 and 3 to 5, an extent of 18 cents in Item No.2 was also suggested to be allotted to them. 4. The learned Trial Judge, after considering the objections and after hearing both sides regarding the modes of division suggested by the Advocate Commissioner, came to the conclusion that the division suggested in the first mode, namely allotment of narrow stripes in all the five items of suit properties to the defendants would be inequitable and on the other hand, alloting an extent which shall be equal to 1/8th portion of the entire area of Item Nos. 1 to 5 in any one of the items would be just and equitable. Considering the location of each one of the items, the learned trial Judge chose to allot 8.5 cents to the defendants in Item No.2 abutting the road and allotted the back portion providing a passage to the same from the road to the plaintiffs. In view of the fact that Item No.1 which was to be allotted to the plaintiffs was abutting the road and Item No.3 was also abutting the pathway, the trial court thought it fit to allot an area abutting the road to the defendants. 5. Contending that more valuable properties had been left to the share of the defendants, the appellants herein/plaintiffs preferred an appeal before the Sub-ordinate Judge, Padmanabhapuram in A.S.No.12 of 2010. The learned first appellate Judge, after hearing both sides, came to the concusion that the division made by the trial court was just and equitable and hence, no interference was warranted. Accordingly, the learned first appellate Court confirmed the decree, dated 24.11.2009, passed by the trial court in I.A.No.200 of 2008 in O.S.No.177 of 2006 by its judgment, dated 09.06.2010. 6. The said judgment and decree of the first appellate court confirming the Final Decree passed by the trial court are challenged in the present second appeal. 7. The only question that is sought to be projected as a substantial question of law in this Second Appeal is "whether the allotment of shares made by the courts below is inequitable?". 8. The Advocate Commissioner appointed by the trial court suggested two modes of division, one in accordance with the line indicated by the plaintiffs and the other in accordance with the memo seeking allotment of an extent equal to 1/8th share of the total extent of all the first items of suit properties in one and the same place to the share of the defendants. The first suggestion of the Commissioner was represented by Commissioner's Plan No.1 and the alternate suggestion was represented by the Commissioner's Plan No.2. A perusal of the order of the trial court and the first appellate court's judgment and other records will show that there is no defect or infirmity in the finding of https://hcservices.ecourts.gov.in/hcservices/ 3 the courts below; that the second mode of division suggested by the Advocate Commissioner represented by Commissioner's Plan No.2 is the one more just and equitable, whereas the division suggested in Commissioner's Plan No.1 would not only be inequitable, but also will result in hardship to the defendants. 9. As pointed out supra, two properties abutting the road and pathway have been allotted in their entirety to the appellants/plaintiffs. The two other properties item Nos. 4 and 5 have also been allotted in their entirety to the appellants herein/plaintiffs. Out of the five items of suit properties, four items, namely item Nos. 1 to 3 and 5 are in the very same village, by name Keezh Midalam. A single item, namely the fourth item having an extent of 14.3 cents alone is in the neighbouring village, namely Midalam. Therefore, taking into account the convenient and more beneficial enjoyment of the properties by the parties concerned, the courts below have worked out the equity in proper perspective and chose to allot 8.5 cents in one and the same place to the share of the defendants. This Court is not in a position to countenance the contention of the learned counsel for the appellants that more valuable property has been allotted to the share of the defendants and properties of less value have been left to be enjoyed by the appellants herein/plaintiffs. As the division made by the trial court and confirmed by the first appellate court is just and equitable, there is no scope, whatsoever, to interfere with the same in this Second appeal. 10. For all the reasons stated above, this Court comes to the conclusion that there is no merit in the second appeal and the same deserves to be dismissed at the admission stage itself without notice to the opposite party and without notice to the court, whose judgement is sought to be assailed in the second appeal. 11. Accordingly, the Second Appeal is dismissed. No costs. Sd/- Assistant Registrar (P&A) /True Copy/ Sub Assistant Registrar To 1. The Subordinate Judge, Padmanabhapuram. 2. The Principal District Munsif, Padmanabhapuram. +1 CC to M/s.M.Dennis Joe, Advocate (SR.No.4392) S.A(MD)No.48 of 2011 04.02.2011 vsn NSV/24.2.11/3P/4C https://hcservices.ecourts.gov.in/hcservices/