Final decree passed without awarding compensation.

Padmanabhan, J.

1. This original side appeal has been filed by defendants 1 and 2 in C.S. No. 61 of 1975 which is a suit for partition on the file of this Court against the final decree passed by Shanmukham, J. on 30th November, 1979.

2. The suit for partition happened to be filed by the respondents-plaintiffs in the following circumstances. The suit property is an extent of 9 grounds and 33 sq. ft in Mount Road with a building thereon known as Motimahal. The property originally belonged to the Kumararaja of Venkatagiri. On 23rd June, 1972, plaintiffs I to 3, defendants 1 and 2 and one Auto and Hardware Store purchased the property from the Kumararaja of Venkatagiri under the sale deed dated 23rd June, 1972. The total sale consideration was Rs. 3,50,000, Towards the sale consideration, the first plaintiff paid Rs. 70,037, the second plaintiff paid Rs. 45,515, the third plaintiff paid Rs. 46,816, the first defendant paid Rs. 55,918, the second defendant paid Rs. 57,776 and the Auto and Hardware Stores paid Rs. 73,938. On 6th January, 1973 the Auto and Hardware Stores sold their right, title and interest in the suit property to the fourth plaintiff. Immediately, after their purchase plaintiffs 1 to 3, defendants 1 and 2 and the Auto and Hardware Stores entered into an agreement dated 17th June, 1972 marked as Exhibit P-3 with regard to the enjoyment of the property among themselves. We shall have occasion to deal with the details of this agreement later on. The parties were in possession of respective portions in terms of the said agreement till 1975 when the plaintiffs 1 to 3 and the fourth plaintiff, being the successor-in-interest of the Auto and Hardware Stores, filed the suit for division by metes and bounds and for separate possession of shares of each of the parties in the suit property. Each one of the plaintiffs claimed a share in proportion to the share contributed by him in the total sale consideration for the purchase of the property. On 14th June, 1976 a preliminary decree for partition was passed by N.S. Ramaswami, J. According to the preliminary decree the first plaintiff is entitled to 70,037/3, 50,000 shares, the second plaintiff 45,515/3,50, 000 shares, the third plaintiff 46,816/3, 50, 000 shares, the fourth plaintiff 73,938/3,50,000 shares the first defendant 55,918/3, 50,000 shares and the second defendant 57,776/3, 50,000 shares.

3. Subsequently, the plaintiffs filed application No. 2054 of 1976 for the appointment of a commissioner to divide the property by metes and bounds in terms of the preliminary decree and to determine the proper compensation payable by each of the parties in respect of the portions in their occupation in premises No. 187, Mount road, Madras 2, and No. 22, Narasingapuram Street, Madras 2, and for directions regarding costs. On 19th July, 1976 N.S. Ramaswami, J , appointed Mr. S. Arasappan, Advocate, as Commissioner for the purpose of dividing the suit property by metes and bounds and to determine the proper compensation payable by each of the parties in respect of the portions in their occupation in the suit property. The Commissioner took the assistance of a reputed Architect Engineer of Madras in dividing the property. Accordingly, the Commissioner filed a report on 18th April, 1977 along with a plan suggesting the mode of division of the property. Defendants 1 and 2 filed their objections to the Commissioner's report. On 30th November, 1979, Shanmukham, J., accepted the report of the Commissioner and passed a final decree for division in terms of the Commissioner's report and plan. As regards the compensation the learned Judge directed the parties to file a memo, of calculation on the basis of the rental fixed by him at the rate of Rs, 1,50 per sq. ft., for the ground floor and Rs. 1.25 for the first floor and Re. 1.00 for the second floor. Thereafter, the parties field memorandum of calculation. Accordingly, on 30th November, 1979 the learned Judge passed an order to the eff