V. G. SABHAHIT, J.

( 1 ) THIS appeal by the petitioner in F. D. P. No. 10010 of 1992 on the file of the x Additional City Civil Judge, Mayo Hall, Bangalore, is directed against the order dated 12-12-1997 wherein the Trial Court has directed the commissioner to divide the suit schedule property equally in terms of the preliminary decree and to handover respective share to the plaintiff and the defendants.

( 2 ) THE essential facts of the case leading upto this appeal with reference to the rank of the parties before the Trial Court are as follows: the plaintiffs filed O. S. No. 10654 of 1982 seeking for a decree for partition and separate possession of plaintiffs one-half share in the schedule property and for permanent injunction against the defendants, their agents restraining them from interfering with the possession of the first plaintiff in respect of the constructed portion of the schedule property and for costs.

( 3 ) THE suit was resisted by the defendants and by judgment dated 29-6-1992 the suit of the plaintiff was decreed declaring that the plaintiffs are entitled to one-half share in the suit schedule property. The plaintiffs are not entitled to injunction as prayed for in the plaint and that the property shall be divided in the final decree proceedings with reference to the quality of construction and situation and parties were directed to pay their own costs and accordingly the decree was drawn. Thereafter, application in final decree proceedings was filed. In that Advocate Commissioner was appointed to submit his report and the Trial Court held that in view of the findings in the suit, the proposal made by the Commissioner cannot be accepted and directed the Commissioner to divide the suit schedule property equally in terms of preliminary decree and to handover respective shares to the plaintiffs and defendants.

( 4 ) BEING aggrieved by the said order, this appeal is filed by the first plaintiff.

( 5 ) HAVE heard the learned Counsel appearing for the appellants and the learned Counsel appearing for the respondents 2 to 5. Appellant and first respondent died during the pendency of this appeal and their legal representatives are brought on record.

( 6 ) HAVING regard to the contentions urged, the point that arises for determination in this appeal is: whether the order passed by the learned Additional City Civil judge ordering the Commissioner to divide the suit schedule property equally in terms of the preliminary decree calls for interference in this appeal? and I answer the above point in the affirmative for the following reasons:

( 7 ) IT is clear from the perusal of the judgment and decree passed in O. S. No. 10654 of 1982 that the plaintiff was declared to be entitled to one-half share in the suit schedule property and it is specifically ordered that property shall be divided in the final decree proceedings with reference to the quality of construction and situation. It is clear from the perusal of the judgment passed in the said suit that there was a specific issue as to whether the construction was put up by the plaintiffs or the first defendant had constructed out of his fund or whether the first defendant has also contributed Rs. 20,000/- towards the said construction and the said issue was answered by holding that the defendant has failed to prove that he contributed Rs. 20,000/ -. However, the Court declined to express any opinion regarding division of the property and left it to be considered at the time of final proceedings. The commissioner's report shows that he visited the schedule property in the presence of plaintiff 1 and defendant 2 and Advocate appearing for the plaintiffs and the defendants and on observing the suit schedule property he has given the opinion as follows:"as per the preliminary decree of this Hon'ble Court the plaintiffs are entitled to one-half and the defendants are entitled to the other half of the schedule property. (a) The schedule property consists of one vacant land on the

Click Here to Read the rest of this document