Point of Law: Second appeal – Suit for partition - Second appeal - Unless defendants also place reliable and convincing materials to substantiate same and when defendants have failed to substantiate their objections and on other hand, as rightly held by Courts below, when mode of division suggested by advocate commissioner and allotment of properties to plaintiff in plaint schedule properties on that basis being found to be fair and equitable and accordingly, it is seen that defendants had also not been able to substantiate that they had been given shares of inferior quality and lesser value with acceptable evidence

JUDGMENT :-

(Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 23.10.2007 passed in A.S.No.12 of 2007 on the file of the Principal Subordinate Court, Tiruvanamalai, confirming the fair and decreetal order dated 07.11.2005 passed in I.A.No.560 of 2004 in O.S.No.414 of 1990 on the file of the Additional District Munsif Court, Tiruvanamalai.)

1. Challenge in this second appeal is made to the Judgement and Decree dated 23.10.2007 passed in A.S.No.12 of 2007 on the file of the Principal Subordinate Court, Tiruvanamalai, confirming the fair and decreetal order dated 07.11.2005 passed in I.A.No.560 of 2004 in O.S.No.414 of 1990 on the file of the Additional District Munsif Court, Tiruvanamalai.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.

3. The defendants 1 to 4 in O.S.No.414 of 1990 are the appellants in the second appeal.

4. Suit for partition.

5. The second appeal has been admitted on the following substantial questions of law:

"1.Whether the Court dealing with the final decree application can refuse to allot shares in the property when the preliminary decree directs division of a property and allotment of shares in it also?

2.Whether the Courts below have not properly worked out the equity in allotting shares in the final decree in accordance with the preliminary decree?"

6. The plaintiff has laid the suit against the defendants for partition and separate possession of his 1/4 share in the plaint "A" schedule properties and 1/16th share in the plaint "B" & "C" schedule properties.

7. It is found that the abovesaid case of the plaintiff had been contested by the defendants and after full trial, based on the oral and documentary evidence adduced by the parties and the submissions put forth, the trial Court was pleased to declare that the plaintiff is entitled to 1/8th share in the plaint "A" schedule properties and 1/16th share in the plaint "B" & "C" schedule properties. As against the judgment and decree of the trial Court, it is found that no challenge has been put forth by any one including the defendants. Thereafter, the plaintiff has preferred an application in I.A.No.560 of 2004 in the original suit for passing a final decree in accordance with the preliminary decree passed in the suit by appointing the advocate commissioner so as to suggest the mode of division of the suit properties and the allotment of the plaintiff's share as determined in the preliminary decree. Accordingly, it is noted that one P.Anbalagan was appointed as the advocate commissioner and the advocate commissioner, after inspecting the properties, had filed his report with plans. It is noted that the trial Court had accepted the report submitted by the advocate commissioner and also the mode of division suggested by him and accordingly, allotted the shares to the plaintiff and passed the final decree in favour of the plaintiff.

8. Challenging the final decree passed by the trial Court, the matter had been taken by way of the appeal by the defendants and it is noted that the first appellate Court had also concurred with the allotment of the shares to the plaintiff in the plaint schedule properties as determined by the trial Court and consequently, dismissed the first appeal laid by the defendants. Impugning the same, the present second appeal has been laid.

9. It is also noted that the defendants had preferred the objections to the commissioner's Report and in the objections, they would only state that the commissioner had failed to note that the plaint schedule properties are not of the same quality and therefore, according to them, the allotment suggested by the advocate commissioner with reference to the properties to be allotted to the plaintiff are the prime properties and thereby, the defendants are deprived of the same and furthermore also put forth that the properties suggested to be allotted to the plaintiff had not been purchased by him and it exceeds