The main legal point established in the judgment is that major shareholders in a partition suit have the right of pre-emption if the property cannot be conveniently divided, as per Section 2 and Section 3 of the Partition Act.

JUDGMENT

(Prayer: Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of the Civil Procedure Code against the judgment and decreee of the Lower Appellate Court made in A.S.No.100 of 2010, dated 23.08.2022, on the file of the Principal District Judge, Thiruchirappalli remanding the suit in O.S.No.276 of 2005, on the file of the II Additional Subordinate Judge, Tiruchirappalli, for fresh disposal.)

1. This Civil Miscellaneous Appeal is directed against the judgment and decreee of the Lower Appellate Court made in A.S.No.100 of 2010, dated 23.08.2022, on the file of the Principal District Judge, Thiruchirappalli remanding the suit in O.S.No.276 of 2005, on the file of the II Additional Subordinate Judge, Tiruchirappalli, for fresh disposal.

2. The above appeal is filed by the plaintiffs in the suit in O.S.No.276 of 2005.The appeal is against the order of remand passed in A.S.No.100 of 2010 filed by the defendants 2 and 3 in the suit. The suit was filed for partition and separate possession of 2/15th sahare of the plaintiff in the suit property.

3. According to the plaintiffs, the suit property originally belongs to Krishnamoorthy Achar and he executed a settlement deed in favour of G.Upendran. Upendran died on 17.09.1998 leaving behind him, the defendants 2 and 3, wife and daughter and his mother Rukmani Ammal. Rukmani Ammal died on 23.07.2000 leaving behing the plaintiffs, her grand-daughter Sangeetha, third defendant in the suit and defendant 4 and 5 grand-sons of the predeceased son of Rukmani Ammal. Thus the plaintiffs have 1/15th share , D1 has got 1/15th share and third defendant has got 1/15th share, D4 and D5 jointly have 1/15th share. Since the defendant refused to come for an amicable settlement for partition, the suit came to be filed.

4. The suit property is a land of 88 feet north-south by 10 ½ feet east-west in Door No.21, South Chithra Stteet in T.S.No.498 in Vellithurumutham Village, Srirangam Taluk, Tiruchirappalli District.

5. So far as the share of the parties and relationship are concerned, there is no dispute between the parties. Insofar as the second respondent is concerned, though there are no objections for passing a decree for partition, they sought for Right of Pre-emption in respect of the suit property and offered to pay the proportionate market value of the property.

6. After framing of issues, Ex.A1 to A3 were marked on the appellant side and second defendant entered the witness box as D.W.1 and one Selvaraj was examined as D.W.2. Ex.A1 to Ex.A6 were marked on the side of the respondent. The trial Court by decree dated 29.06.2009, decreed the suit as prayed for.

7. Aggrieved against the judgment of the trial Court, the defendants 2 and 3 have preferred an appeal in A.S.No.100 of 2010 before the District Court, Trichy. The appellate Court by judgment and decree, dated 23.08.2011, set aside the decree for partition granted by the trial Court and also remanded the matter to the lower Court, directing the lower Court to apply the law of Preemption in favour of the defendants 2 and 3, as they are the highest share holders and they have put up the construction by spending Rs.10 lakhs in the suit property. By order, dated 23.08.2011, the appeal preferred by the defendants 2 and 3 were allowed and the matter was remitted back to the trial Court for ascertainment of the value of the property on the basis of the share as decided by the trial Court. Aggrieved against the order of remand, the first plaintiff has preferred the above said Civil Miscellaneous Appeal.

8. Heard the learned counsel appearing on either side and perused the materials placed before this Court.

9. The parties to the lis claim respective shares as mentioned below:

STATEMENT OF SHARES FILED BY THE COUNSEL FOR APPELLANT

1st Plaintiff : 3/30 share

1st Defendant : 3/30 share

Defendants 2 & 3 : 22/30 share

Defendants 4 & 5 : 2/30

10. The property was settled by one Krishnamoorthy in favour of Upendran, who is the husband of the first appellant and father