THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY A.S.No.506 of 2009 (Dated 25-02-2010) Between: Pidikinti Rajeswari W/o late P.Sreerama Murthy And others …Appellants/ Respondents/Defendants A n d Ramanavarapu Sampath Kumar and others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY A.S.No.506 of 2009 JUDGMENT: This appeal is directed against the order dated 27.4.2009 passed in I.A.No.613 of 2007 in O.S.No.282 of 1995 on the file of the I Additional Senior Civil Judge, Guntur, whereby and whereunder, the learned Senior Civil Judge allowed the application filed by the 1st respondent-plaintiff under Order 26 Rule 13 read with Section 151 CPC. 2. The appellants are the defendants 1, 5 and 6 and whereas the 1st respondent is the plaintiff in O.S.No.282 of 1995. Respondents 2 to 4 are co-defendants in the suit. The plaintiffs filed the suit for partition and separate possession of his share in the suit schedule property. The suit schedule property comprises two items. The 1st item is land admeasuring Ac.0-66 cents. The 2nd item is land admeasuring Ac.1-34 cents. The suit in respect of item No.1 came to be decreed and in respect of item No.2 came to be dismissed. Preliminary decree passed on 17.4.2007 in O.S.No.282 of 1995 reads as hereunder:- “ 1) That the suit be and the same is hereby decreed against D1, D5 and D6 in respect of item No.1 of the plaint schedule property be divided in to four equal shares and the Plaintiff is entitled to two such shares, and the 1st defendant is entitled one such share and defendants 5 and 6 both together entitled to one such share. 2) That the suit be and the same is hereby dismissed against Defendants 2 to 4 as per docket order dt.7.9.2006. 3) That the Plaintiff do bear a sum of Rs.13,468/- and the 1st defendant do bear a sum of Rs. Nil and the defendants 5 and 6 also do bear a sum of Rs. Nil towards costs in this suit. (C.M and f.c not filed by defendants)” Defendants 1, 5 and 6 in O.S.No.282 of 2005 filed A.S.No.442 of 2007 questioning the preliminary decree. There being no interim stay of operation of the preliminary decree, the 1st respondent- plaintiff filed I.A.No.613 of 2007 under Order 26 Rule 13 read with Section 151 CPC to appoint an Advocate Commissioner to divide Item 1 of the Plaint schedule property in O.S.282 of 1995 into four equal shares and allot two such shares to him and to ascertain mesne profits. 3. A Commissioner was appointed to make division of item No.1 of the suit schedule land. The Commissioner inspected the suit schedule land and measured the land with the assistance of Town Surveyor and arrived its extent as Ac. 63.18 cents. He divided the land into four plots, each plot admeasuring 59’.3” X 98’. Accordingly, he submitted report along with a rough sketch prepared by him. 4. The 1st respondent-plaintiff filed I.A.No.176 of 2009 to demolish the dilapidated building situated in plot No.4 shown in the plan prepared by the Commissioner. Defendants 1, 5 and 6 filed counter in the said application contending that there was no need to demolish the said building and as well it could be allotted to anyone of the parties. The learned Additional Senior Civil Judge having considered the submissions made by the parties proceeded to allot plots 3 and 4 to the plaintiff, plot No.1 to the 1st defendant and plot No.2 to defendants 5 and 6 together, by order dated 27.4.2009. For better appreciation, I may refer paragraph 7 of the order, which reads as hereunder:- “ It is an admitted fact the respondents are the defendants in OS 282/1995. They preferred an appeal and no stay was obtained in regard to passing of final decree. The respondents contended that they questioned the validity of General Power of Attorney since it was not properly stamped and not registered. The said objection has nothing to do with the passing of final decree since no stay was granted by the Hon’ble High Court of Andhra Pradesh in the appeal suit in regard to passing of final decree and since any number of final decrees can be passed and the final decree is subject to the result of the appeal suit, i.e., AS 442/2007. The petitioner filed a petition IA 176/2009 to demolish the dilapidated building situate in item 4 shown in the plan prepared by the Commissioner and to deliver the same to the petitioner. The respondents filed counter in the said Petition resisting the maintainability of the Petition and submitting that there is no need to demolish the said building and it can be allotted to anyone of the parties to the petition. The petitioner also conceded the submission made by the respondents in their counter. In view of the contentions of the both the parties juxtaposed with the Commissioner report and plan prepared by him since the property is divided into four equal shares, plot No.4 can be allotted to the petitioner. No tenable objection whatsoever was raised by the respondent to pass final decree in terms of preliminary decree. Mere pendency of appeal is no ground to reject passing of final decree since the final decree is subject to the result of appeal suit. In the result Petition is allowed. Consequently, plots 3 and 4 are allotted to the Petitioner, plot 1 is allotted to the 1st respondent and plot 2 is allotted to the respondents 5 and 6”. 5. The manner of allotment of plots 3 and 4 to the 1st respondent-plaintiff is assailed in this appeal by defendants 1, 5 and 6. 6. An interim order came to be passed on 24.8.2009 directing the trial Court to fix the date for drawal of lots, draw lots on that day and forward the result of the same to this Court. The order passed on 24.8.2009 in A.S.M.P.No.1518 of 2009 reads as hereunder:- “ The only objection raised by the petitioners is that instead of drawing lots for allotment of shares, the trial Court has allotted one share to the petitioner in I.A.No.613 of 2007. Pending further orders, it is directed that the trial Court shall fix a date for drawal of lots, duly informing the parties; draw lots on that day, and forward the result of the same to this Court, within four weeks from today. Post after four weeks for judgment. In the meanwhile, notice to the respondents, returnable in two weeks. Learned counsel for the petitioners is also permitted to take out personal notice to the respondents and file proof of service.” 7. Pursuant to the interim direction referred above, the trial Court cast lots and in the lots, plaintiff got plots 1 and 4 and whereas the 1st defendant got plot No.2 and defendants 5 and 6 together got plot No.3. Accordingly, the learned I Additional Senior Civil Judge, Guntur sent a report dated 5.10.2009. 8. Both parties filed objections to the allotment of shares by the trial Court by casting of lots, pursuant to the interim order dated 24.8.2009 passed by this Court. The objection of the plaintiff is that the order dated 27.4.2009 passed by the trial Court is a consent order, and therefore, the appellants-defendants 1, 5 and 6 are estopped from raising any objection. And whereas, the objection of the appellants-defendants 1, 5 and 6 is that the plaintiff, being aware of the order passed by this Court on 24.8.2009, participated in the drawal of lots without any demur and having taken a chance, he cannot be permitted to question the allotment of plots by drawal of lots by the trial Court. 9. Paragraphs 6, 7 and 8 of the counter filed by the appellants-defendants 1, 5 and 6 to the objections filed by the 1st respondent-plaintiff need to be noted and they read as hereunder:- “6. The objection of the 1st Respondent that the order of the trial Court dated 27.04.2009 dividing the land is a consent order against which no appeal lies is wholly untenable. The objection that we have given consent and the order is a consent order is false. The basis on which the 1st Respondent is claiming that it is a consent order is not known nor the order passed by the lower Court show that the order passed is a consent order. I submit that we are not raising any objections with regard to the division of the land and also raising objection with regard to the procedure followed by the trial Court. 7. With regard to objection No.3 to 5 are concerned, it is submitted that the 1st Respondent is aware that the order passed by this Hon’ble Court on 24.08.2009 is an ex parte order. Knowingly he has participated in the drawal of lots conducted without any demur and having taken a chance is now questioning the order of this Court on an ex parte order. In fact, the 1st Respondent has exercised the 1st option and has picked the two lots and the remaining is given to us. I submit that the plea of the 1st Respondent that he is entitled for two contiguous plots is untenable. The objection raised in objection –IV that we are in collusion with Respondents 2 to 4 is false. 8. It is submitted that the order passed in A.S.M.P.No.1518 of 2009 dated 24.08.2009 has been given effect. There are no grounds made out for vacating the order passed. Hence, it is prayed that the Hon’ble Court may be pleased to make the interim stay absolute and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case”. 10. Heard Sri O.Manohar Reddy, learned counsel appearing for the appellants-defendants 1, 5 and 6 and Sri M.Chandrasekhar Rao, learned counsel appearing for the 1st respondent-plaintiff. 11. Learned counsel appearing for the appellants submits that the trial Court, erred in allotting plots 3 and 4 to the plaintiff without following any procedure, and therefore, the order passed by the trial Court on 27.4.2009 is liable to be set aside. A further submission has been made that pursuant to the interim direction given by this Court in A.S.M.P.No.1518 of 2009, the trial Court allotted plots 1 and 4 to the plaintiff by way of casting lots and the procedure followed by the trial Court is fair and in which case, the appeal deserves to be allowed setting aside the allotment of plots 3 and 4 to the plaintiff and instead confirming the order of trial Court allotting plots 1 and 4 to the 1st respondent-plaintiff, pursuant to the interim direction dated 24.8.2009 passed by this Court in A.S.M.P.No.1518 of 2009. 12. In support of his submission, learned counsel placed reliance on the judgment of Madras High Court in Ananta Ramappa v. Subraya and another[1]. In the cited case, a Commissioner was appointed to make partition and cast lots for the purpose of allotting shares to the co-parceners. The opposite party raised an objection for appointment of the Commissioner to cast lots for the purpose of allotment of shares to the coparceners. Then, the District Judge himself allotted the shares to the coparceners by drawal of lots. When the procedure adopted by the District Judge is challenged, the Madras High Court held that the most equitable way by which properties could be assigned to co-parceners is to draw lots after dividing the properties with reference to the number of sharers, and thereby, upheld the procedure adopted by the District Judge. 13. Learned counsel appearing for the 1st respondent submits that the 1st respondent-plaintiff is entitled to 50% of Item No.1 of the suit schedule property and since the Commissioner divided the item No.1 of the suit schedule land into four plots, it is fair to allot two contiguous plots to the plaintiff and the trial Court having taken into consideration the Commissioner’s report, allotted plots 3 and 4 to the 1st respondent-plaintiff and the appellants- defendants 1, 5 and 6 did not raise any objection for the procedure adopted by the learned Judge and in which case, it is impermissible for the appellants-defendants 1, 5 and 6 to challenge the order dated 27.4.2009 passed in I.A.No.613 of 2007, whereunder plots 3 and 4 have been allotted to the 1st respondent-plaintiff. A further submission has been made that the allotment of plots by drawal of lots, pursuant to the interim direction passed in A.S.M.P.No.1518 of 2009 is subject to the result of the appeal and therefore, any action done, pursuant to the interim direction, cannot be treated as a finality. 14. The point that arises for consideration in this appeal is: Whether there is any procedural irregularity committed by the trial Court in allotting plots 3 and 4 to the 1st respondent-plaintiff? 15. POINT : It is no more in dispute that the Commissioner divided item No.1 of the suit schedule in to four plots. In Plot No.4, some structures exist. Indeed, the 1st respondent-plaintiff filed an application being I.A.No.176 of 2009 to demolish the dilapidated structures in Plot No.4. The appellants-defendants 1, 5 and 6 resisted the application and reported that plot No.4 could be allotted to anyone of the parties to the suit. After taking into consideration the plea advanced by the appellants-defendants 1, 5 and 6, the trial Court proceeded to allot Plot Nos.3 and 4 to the 1st respondent-plaintiff. The 1st respondent-plaintiff is entitled to 50% share in item No.1 of the suit schedule property. Since Commissioner divided Plot No.1 into four plots, two contiguous plots are to be allotted to the 1st respondent-plaintiff. The trial Court, having taken into consideration the entitlement of the 1st respondent-plaintiff to two plots out of four plots, proceeded to allot plots 3 and 4. The appellants did not raise any objection before the trial Court. When the appellants did not raise any objection for division of Item No.1 into four plots, they cannot have any objection for allotment of two contiguous plots to the 1st respondent-plaintiff, by the trial Court. 16. A close reading of the order impugned in the appeal indicates that the appellants did not raise any objection for the allotment of plots 3 and 4 to the 1st respondent-plaintiff before the trial Court. The appellants, having not raised any such objection, cannot be permitted to canvass that the procedure adopted by the trial Court is not fair. 17. Accordingly, this appeal is devoid of merits and the same is accordingly hereby dismissed. No costs. The interim order dated 24.8.2009 passed in A.S.M.P.No.1518 of 2009 shall stand vacated. ______________________ B.SESHASAYANA REDDY, J Dt.25-02-2010 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY A.S.No.506 of 2009 (Dated 25-02-2010) [1] AIR 1915 Madras 1171