RAMASAMY Vs. VENKATACHALAM

JUDGEMENT

(1.) THE second defendant is the appellant.

(2.) THE appellant challenged the final decree passed in O.S.No.528 of 2001 in the second appeal. As per the preliminary decree dated 23.12.2004 the B schedule property has to be divided into four parts and two parts shall be allotted to the plaintiff and the defendants are entitled to the remaining two parts. THE appellant contested granting of preliminary decree upto Supreme Court and failed in their attempt. During the pendency of proceedings before the Supreme Court, there was no stay. After the disposal of the Second Appeal confirming the preliminary decree passed by the Trial Court, final decree proceedings were initiated and after issuing notice to both the parties, the Commissioner inspected the properties and submitted a report stating that the properties can be divided as northern half and southern half as a road is going on the eastern side which will provide access for both the properties. Though notice was served on the appellant, having regard to the pendency of the proceedings before the Supreme Court, the appellant did not take part in the inspection of property by the Commissioner and also did not effectively contest the final decree proceedings. In the final decree proceedings, the Trial Court accepted the suggestion of the respondents and allotted the southern portion which was shown as 'CD' in the commissioner's first plan and 'B' portion in the second plan to the plaintiffs/respondents and passed final decree accordingly. THE same was challenged in the first appeal and the first appellate court dismissed the appeal and hence, the second appeal.

(3.) I am unable to accept the contention of the learned counsel for the appellant. It is not the case of the appellant that no notice was given to him by the commissioner before inspecting the property. Admittedly, notices were given by the commissioner and that was also mentioned clearly in the commissioner's report and unfortunately, the appellant failed to avail the opportunity given by the commissioner. Further, no acceptable reason has been stated by the appellant regarding the division of property as southern half and northern half. Admittedly, the road is passing through on the eastern side of the suit property and considering the same, the learned advocate commissioner has divided the property north and south-wise so that both the parties can have access to the road situate on the eastern side. Hence, I do not find any reason to interfere with the division of property by the learned advocate commissioner on the northern and southern side.