MURALIDHARAN Vs. ANANDAN

JUDGEMENT

(1.) DEFENDANTS 3 and 4 in O.S.137/1992 on the file of Munsiff Court, Alathur filed this appeal challenging the final decree passed by the learned Munsiff as confirmed by the District Judge in A.S.11/2010. First respondent instituted O.S.137/1992 seeking partition and separation of his share. He was then a minor and was represented by his uncle as next friend. By preliminary decree dated 24.6.1993, learned Munsiff directed division of the property into five equal shares and allotment of one share to the first respondent. That preliminary decree has become final. None of the other sharers sought division of their shares before the preliminary decree. I.A.1181/2001 was filed for passing of final decree in accordance with the preliminary decree. Even when the final decree application was pending, there was no request to allot the share of the appellants. They did not pay court fee for separation of their shares. Learned Munsiff appointed a Commissioner to divide the property and to allot 1/5 share to the first respondent in accordance with the preliminary decree. The Commissioner prepared Ext.C1 report and Ext.C1(a) plan, dividing the properties. Subsequently when it was remitted back Ext.C2 and Ext.C2(a) plan were submitted. Under the allotment so made, plot B marked in Ext.C2(a) plan was allotted to the share of the first respondent together with the share due to the second respondent the father. The remaining shares were not separated and was left together.

(2.) LEARNED Munsiff passed a final decree in accordance with the said allotment on 30.9.2009. It was challenged before District Court in A.S.11/2010. LEARNED District Judge confirmed the final decree and dismissed the appeal. It is challenged in the second appeal.

(3.) EVENTHOUGH the preliminary decree was passed in 1993 after the institution of the suit in 1992, appellants did not seek for allotment or separation of their shares. They did not pay any court fee for separation of shares. Even in the final decree application they did not seek allotment of their separate shares. In such circumstances, first appellate court was justified in finding that as the preliminary decree does not provide division of the remaining shares, only the share as provided under the preliminary decree is to be separated. The allotment so made by the Commissioner and accepted by the learned Munsiff cannot be disturbed on the ground that the other shares are to be separated at a later stage. Though it was contended that there is no road access for the remaining shares, it was found that road access is available for the remaining shares also. Learned counsel argued that as the second respondent has not paid any court fee and still his share was separated, I do not find that on that reason the final decree passed by the learned Munsiff as confirmed by the first appellate court is to be interfered with as what was allotted was the shares of the first respondent together with that of his father. In such circumstances, no substantial question of law is involved in the appeal. Appeal is dismissed.