IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 04.02.2020

CORAM

THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM

A.S.No.672 of 2006

B.R.Mohanlal

..Appellant/1^st Defendant

Vs.

1.M.Pravin lal @ Prabhu

..1^st Respondent/Plaintiff

2.B.G.Rajagopal [Died]

..2^nd Respondent/2^nd Defendant

3.M.B.Indirani

..3^rd Respondent

[R1 declared as major vide order dated 06.11.2014

made in M.P.No.1 of 2011

R3 brought on record as L.R of the deceased R2 vide

order dated 03/12/2019 made in C.M.P.Nos.4753 to 4755

of 2018 in A.S.No.672 of 2006]

Prayer : First Appeal filed under Section 96 of CPC against the

Judgment & Decree dated 23.06.2005 passed in O.S.No.34 of 2003

on the file of the Additional District Judge, Fast Track Court

No.I, Salem.

For Appellant :Mr.M.Sivavarthanan

For Respondents :Mr.D.Shivakumaran for R1

Mr.K.S.Karthick Raja for R3

R2-Died steps taken

J U D G M E N T

The final decree passed in O.S.No.34 of 2003 dated

23.06.2005, on the file of the Additional District Judge, Fast

Track Court No.I, Salem, is under challenge in the present

appeal suit.

2. The suit was instituted for partition and separate

possession to direct the defendants for division of the suit

properties by metes and bounds into four equal share and allot

one such share to gather with possession to the minor plaintiff

and make provision for appointing a commissioner for proper

division of the suit properties by metes and bounds, considering

the good and bad soil and its value and the right of passage,

and for passing the final decree in accordance with the

preliminary decree for allotment of such share in the plaintiff

https://hcservices.ecourts.gov.in/hcservices/

and pass a decree for permanent injunction against the

defendants and their men, agents, power holders, administrator,

restraining them in any manner alienating or creating any

encumbrance over the suit property till the final partition is

effected and allotment of the share of the plaintiff is ordered

with cost.

3. Preliminary decree was passed allotting shares to the

plaintiff and accordingly, the rights of the parties were

crystallized. An application was filed for passing final decree

and the Trial Court appointed an Advocate Commissioner, who in

turn, submitted a report on 07.01.2005. The contention of the

appellant before this Court is that the property is indivisible.

The Commissioner's report dated 07.01.2005 and 04.03.2005

clearly states that "the property is having its entrance facing

the west and since the same is surrounded by the properties of

the third parties on the east, north and south, the same cannot

be divided from any other direction except the west. The width

of the property (North-South) on the west inclusive the

thickness of northern and southern walls is 14'.5". If it is

divided from west to east into four equal shares, the width of

each share would be 3'.10" to a length of 83'. 10". Even if it

is so divided, the shares have to put up partition walls between

their respective shares atleast with a thickness of 9" and even

if such partition walls are put up as common partition walls,

then the width of each share would be 3'.2". If division is

effected as per the preliminary decree the width of each share

would be 3'.2", if common partition are put up between the

respective shares of the shares and if no such common partition

walls are put up, the width of each share would be 3'.10". If

the property is divided into four equal shares from west to

east, the shares could not conveniently and effectively enjoy

their respective shares and it would not also be beneficial for

the shares". Accordingly, the Commissioner formed an opinion

that the suit property is indivisible from west to east and it

may not be divided from any other direction. Yet another report

was filed, wherein the Commissioner has stated that t