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IN THE HIGH COURT OF JUDICATURE AT MADRAS
A.A. NAKKIRAN, J.
S. Rajeswari - Applicant
Versus
P.S. Murugesan & Others – Respondents
Application No. 6020 of 2023 in Civil Suit No. 55 of 2016
Decided On : 07-03-2024
Order XIV Rule 8 - Final Decree - The court passed a final decree in terms of the preliminary decree by appointing an Advocate Commissioner to inspect the suit property and divide it by metes and bounds with equal share, allotting one share to the plaintiff.
Fact of the Case:
The plaintiff filed an application to pass a final decree in terms of the preliminary decree by appointing an Advocate Commissioner to inspect the suit property and divide it by metes and bounds with equal share, allotting one share to the plaintiff.
Finding of the Court:
The court, after hearing both sides and perusing the commissioner's report, decided to allot 'A' part to the plaintiff and 'B' part to the defendants in the sketch, and passed a final decree accordingly.
Issues: Application for final decree in terms of preliminary decree, appointment of Advocate Commissioner, division of property by metes and bounds, allocation of shares to plaintiff and defendants.
Ratio Decidendi: The court's decision was influenced by the commissioner's report and the agreement of both parties to take specific parts of the property, leading to the allocation of shares and the passing of the final decree.
Final Decision: The application for a final decree was allowed, and the court passed a final decree allotting 'A' part to the plaintiff and 'B' part to the defendants, with the Commissioner's report, fair and rough sketch, and photographs forming part of the final decree.
JUDGMENT :
(Prayer: Application under Order XIV Rule 8 of O.S Rules r/w Order XXXIV Rule 5 (3) and Section 151 of CPC, praying to pass final decree in terms of the preliminary decree dated 31.07.2023 by appointing an Advocate Commissioner to inspect the suit property and to divide by metes and bounds with equal share and allot one share to the plaintiff as per the decree dated 31.07.2023 in C.S.No. 55 of 2016.)
1. This application has been filed by the applicant/plaintiff to pass a final decree in terms of the preliminary decree dated 31.07.2023 by appointing an Advocate Commissioner to inspect the suit property and to divide by metes and bounds with equal share and allot one share to the plaintiff as per the preliminary decree dated 31.07.2023 in respect of the suit properties, morefully described in the schedule.
2. Pursuant to the preliminary decree passed by this Court on 31.07.2023 in the suit, A.No. 6019 of 2023 has been filed by the applicant/plaintiff to appoint an advocate commissioner to inspect the suit schedule properties and to divide by metes and bounds with equal share and allot one share to the plaintiff in properties, morefully described in the schedule.
3. After hearing the learned counsel for the plaintiff, this Court, by an order dated 13.12.2023, appointed Ms.J.Vennilla, Advocate, as Advocate Commissioner to inspect the suit schedule properties; to find out the mode of division by metes and bounds to allot one share to the plaintiff in respect of the suit schedule properties. In pursuance of the warrant issued by this Court, the Commissioner has also inspected the suit schedule properties, measured the same and thereby suggested mode of division in respect of schedule of property comprised in Old Survey No. 5783, present Survey No. 5183, Block No. 118, T.Nagar, Mambalam-Guindy Taluk, Chennai. The Commissioner has filed her report along with fair and rough sketch and photographs. She has also mentioned in her report "Two Parts" in the fair sketch, named as "A" & "B".
4. Today, both the plaintiff and the defendants are present and they are represented by their counsel.
5. The learned counsel for the plaintiff submitted that the plaintiff agrees to take "A" part of the property. The learned counsel for the defendants submitted that the defendants agree to take "B" part of the property.
6. Upon hearing both sides and perusing commissioner's report, this court is inclined to allot 'A' part to the plaintiff and 'B' part to the defendants in the sketch.
7. With the above terms, a final decree is passed. The Commissioner's report, fair and rough sketch and photographs shall form part of the final decree.
8. Accordingly, this application is allowed. No costs.
The court upheld the partition and equitable distribution of property based on the Commissioner's report, emphasizing the importance of amicable resolution in family disputes.
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 objectio....
Parties must raise objections timely during proceedings; failure to do so constitutes acquiescence, validating the final decree and its property distribution.
Ambiguity in property division and lack of pathway to reach the allotted portion can lead to the setting aside of judgment and final decree, and remand for re-survey and division of the land.
In partition suits, findings of the Advocate Commissioner on property identification are determinative unless substantial questions of law can be demonstrated.
In partition suits, the lack of documentary evidence undermines objections to Commissioner's findings, affirming equitable distribution based on thorough assessments.
The entitlement to partition and separate possession, and the division of property based on the preliminary decree were the central legal points established in the judgment.
The partition suit distinguishes between preliminary and final decree stages, confirming that property identification is addressed at the final decree stage.
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