K V DHANANJAYAN Vs. KAMALAKSHMI AND ORS

JUDGEMENT

(1.) The 2nd defendant in a final decree application for partition has filed this RSA challenging the final decree passed by the trial court which was confirmed by the lower appellate court. The preliminary decree directs division of the plaint schedule property into seven equal shares and to allot three such shares to the plaintiffs and three such shares to defendants 1, 3 and 4 and the remaining one share to the 2nd defendant, who is the appellant herein. A commission was issued for effecting division in terms of the preliminary decree. The Advocate Commissioner found that the total extent of the property available for division was 38.40 cents. He prepared two plans (Exts.C2 and C3).

(2.) The appellant herein contended that he has been residing in the house situated in the suit property and so, in equity the land where the house is situated has to be allotted to him. Accordingly, the Advocate Commissioner prepared two plans - Exts.C2 and C3. The trial court accepted Ext.C3 plan as per which plot B shown therein, the extent of which is 5.50 cents, was allotted to the share of the 2nd defendant/appellant. The entire remaining land with the house situated therein was allotted to the share of the respondents (plaintiffs 1 to 3 and defendants 1, 3 and 4). The allotment made by the trial court as per the final decree was challenged by the appellant. The appellate court concurred with the judgment of the trial court and dismissed the appeal.

(3.) Learned counsel for the appellant would submit that the trial court did not allot the area where the house is situated to the appellant only for the reason that the appellant had chosen to file objection to the commissioner's report with regard to the valuation of the house. The Advocate Commissioner estimated the value of the house at Rs. 3,75,906/-. But it was pointed out that it is not feasible to allot the area where the house is situated to the share of the appellant who was having only 1/7 share in the whole of the property since if the house is allotted to his share, the total extent of the land which may have to be allotted to the share of the appellant would come to 13.90 cents whereas the appellant is entitled to get only 5.50 cents.