BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 30.07.2024 DELIVERED ON : 14.10.2024 CORAM THE HON'BLE MR.JUSTICE G.ILANGOVAN S.A.(MD).No.333 of 2024 and C.M.P.(MD).No.7729 of 2024 R.Paripoornam ... Appellant/Appellant/2^nd Defendant Vs.

1.B.Konammal ... 1^st Respondent/1^st Respondent/Plaintiff 2.G.Loganathan ...2^nd Respondent/2^nd Respondent/3^rd Defendant PRAYER : Second Appeal filed under Section 100 of the Civil Procedure Code, to set aside the Judgment and Decree passed in A.S.No. 39 of 2022 dated 20.02.2024 on the file of the VI-Additional District Court, Madurai confirming the Judgment and Decree passed in final decree petition in I.A.No.411 of 2015 in O.S.No.201 of 2009, dated

23.07.2021 on the file of the III Additional Sub Court, Madurai.

For Appellant : Mr.H.Arumugam For Respondents : Mr.M.Rajaraman for R1 Mr.S.Ayyanar Premkumar for R2

JUDGMENT

This appeal has been filed against the Judgment and Decree passed in A.S.No.39 of 2022 dated 20.02.2024 on the file of the VI-Additional District Court, Madurai confirming the Judgment and Decree passed in final decree petition in I.A.No.411 of 2015 in O.S.No.201 of 2009, dated

23.07.2021 on the file of the III Additional Sub Court, Madurai.

2.The facts in brief:

Suit in O.S.No.201 of 2009 was filed by the Konammal, who is the first respondent herein against one Rama Chandran, Paripoornam and Loganathan before the III Additional Sub Court, Madurai, seeking the relief of partition, separate possession of her half share, permanent injunction and cost.

3.The suit was decreed as prayed for with costs. Later, she filed application in I.A.No.411 of 2015 for passing final decree. At that time, Ramachandran was dead. So the third respondent was brought on record as the legal representative of the Ramachandran. That was resisted by the appellant herein namely Paripoornam by filing counter. Final decree application was allowed. Taking into account the commissioner report, plan and sketch etc. the portion mentioned as '2' in the Engineer Plan annexed with the Commissioner Report was allotted to Konammal. The portion shown as '1' was allotted to the third respondent namely Loganathan. The lane situated on the northern and western side were ordered to be used by the plaintiff/petitioner and third respondent commonly.

4.Against which appeal was preferred before the appellate authority namely VI Additional District Judge, Madurai, in A.S.No.39 of 2022. That appeal was dismissed. Final decree passed by the trial Court was confirmed.

5.Against which, this second appeal is preferred. At the time of admission the following substantial question of law were framed.

1. Whether the Courts below are right in giving a finding that the appellant has no right or locus to contest the final decree petition after execution of the sale deed dated 10.02.2016 in favour of the 2^nd respondent, without even considering that the appellant sold only a portion of property and she can still exercise his equity in the final decree proceedings?

2. Whether the Courts below are right in allotting the properties accepting the advocate commissioner's report, without even considering the objections raised by the appellant, which warrants interference under Section 100 of Civil Procedure Code?

3. Whether the Courts below are correct in not scrapping the report of the advocate commissioner and appoint a new advocate commissioner to inspect the suit property as per the provisions of Order 26, Rule 9 and 10 of C.P.C ?

6.Now we will go to the grievance expressed by this appellant before the trial Court during the final decree proceedings. The facts set out with regard to the earlier dismissal of the suit filed by Konammal and appeal, etc., facts, which we need not concentrate very much. It is admitted that ultimately, suit was decreed, declaring that the plaintiff is entitled for ½ share in the properties. She purchased second item from the second defendant measuring about 535 ¾ sq. feet on 10.02.2016. From the date onwards, he was