VASUDEVA MURTHY Vs. MARIYAPPA

JUDGEMENT

(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.