JIBU SALIM Vs. AZEEZ

JUDGEMENT

(1.) The second defendant in a suit for partition is the appellant. An item of property measuring 29.130 cents was sought to be partitioned in the suit. In terms of the preliminary decree passed by the court, the plaintiff is entitled to ¾ share in the suit property and the second defendant is entitled to the remaining ¼ share. Pursuant to the preliminary decree, the plaintiff preferred an application for passing of the final decree. In the final decree proceedings, the court appointed an Advocate Commissioner and the Advocate Commissioner appointed by the court submitted a report and plan indicating the manner in which the property sought to be partitioned could be partitioned among the plaintiff and the second defendant. The property sought to be partitioned is situated abutting a road on its east. Though the extent of the property sought to be partitioned is 29.130 cents, its road frontage is only 12.80 cents. As the depth of the property was considerably high, having regard to its road frontage, the Commissioner found that if the property is divided between the parties providing proportionate road frontage, the second defendant may not be able to use the property for any purpose, as there will not be sufficient width for the property to be allotted to him. The Commissioner, in the circumstances, allotted a portion of the property having a width of almost 10 meters measuring 7.283 cents lying on the western side of the suit property to the second defendant with a pathway having a width of 1.5 meters to the eastern public road. The remaining 21.849 cents was allotted to the plaintiff. As the Commissioner felt that the pathway having the width of 1.5 meters may not be sufficient for the second defendant to conveniently enjoy the property, the Commissioner drawn a pathway of 1.5 meters also adjoining the pathway already drawn from out of the share of property allotted to the plaintiff and thereby making the pathway common for both parties, so that the width of the pathway provided to the second defendant would be in effect, 3 meters. In the plan appended to the report of the Advocate Commissioner, plot A is the plot measuring 21.849 cents allotted to the plaintiff and plot B is the plot measuring 7.283 cents allotted to the second defendant. Plot C is the plot measuring 1.352 cents carved out from plot A for widening the width of the pathway provided to the second defendant. The aforesaid allotment was objected to by the second defendant contending mainly that the property on the south of the suit property belongs to the plaintiff and that since the said property has sufficient road frontage, the second defendant should have been given his share facing the road on the east. Another objection raised by the second defendant to the report of the Advocate Commissioner was that there is a well in existence in the pathway carved out from the property allotted to the plaintiff for the convenient use of the second defendant and that therefore, the second defendant may not be able to use the entire width of the pathway. The trial court overruled the objections raised by the second defendant holding that the manner in which the Advocate Commissioner has effected partition is the best possible manner in which partition could be effected in a case of this nature, and passed a final decree accepting the report of the Advocate Commissioner with a trivial modification made as regards the owelty directed to be paid by the second defendant to the plaintiff in terms of the report of the Advocate Commissioner. The second defendant challenged the decision of the trial court in appeal. The appellate court, on a reappraisal of the materials on record, found that merely for the reason that the plaintiff has other properties having road frontage, the second defendant cannot claim road frontage for the entire property allotted to him. The decision of the trial court was accordingly affirmed by the appellate court. The second defendant is aggrieved by the concurrent decisions of the courts below.

(2.) Heard the learned senior counsel for the appellant as also the learned counsel for the contesting respondent/plaintiff.

(3.) As noted, the extent of property available for partition was only 29.130 cents. Out of the said extent, the second defendant was allotted 7.283 cents proportionate to his share and the plaintiff was allotted 21.849 cents proportionate to his share. In addition, 1.352 cents was carved out from the 21.849 cents allotted to the plaintiff and given to the second defendant to enhance the width of the way provided to his share by another 1.5 meters. In other words, virtually, the second defendant was allotted 8.635 cents in the place of 7.283 cents which he is entitled to. Of course, that property would remain to be the property of the plaintiff. I do not find any infirmity in the said arrangements made by the courts below. The contention raised by the second defendant in the second appeal is that the second defendant should have been allotted his due share of property facing the road on the eastern side. The justification put forward for raising such a claim is that the plaintiff has other property facing the same road on the south of the suit property. I fully endorse the view taken by the appellate court in this connection. Merely for the reason that the plaintiff has other properties having road frontage, the second defendant cannot claim road frontage for his entire property on equitable grounds, for if the said course is adopted, the partition would not be equitable as the proportionate value of the remaining property to be allotted to the plaintiff would be less when compared to the proportionate value of the property allotted to the second defendant. Another contention raised in the second appeal is as regards the existence of the well in plot C carved out from plot A for the use of the second defendant. The view taken by the courts below in this regard is that the well can be covered so as to enable the second defendant to use that portion of plot C as the pathway. The said view cannot be said to be illegal. There is, therefore, no merit in the second appeal. There are no questions of law, much less any substantial questions of law involved in the matter.