K.DURAISAMY Vs. K.GOVINDARAJULU

JUDGEMENT

(1.) THIS appeal is focussed as against the fair and decreetal order dated 22.09.2006 passed in I.A.No.1356 of 2004 in O.S.No.539 of 1999 on the file of the Court of the Additional District Judge, Coimbatore.

(2.) A summation and summarisation of the germane facts absolutely necessary for the disposal of this appeal would run thus: The first respondent/Govindarajulu, the plaintiff herein filed the suit for partition as against the deceased Duraisamy, the original appellant herein and Ranganayaki/D2 herein. A preliminary decree was passed allotting shares to the effect that the plaintiff and D1/Duraisamy should take four shares each and Ranganayaki should take one share, out of the total nine shares of the suit properties comprised of three schedules, A, B and C. As against the preliminary decree, no appeal was filed. The plaintiff filed final decree application in I.A.No.1356 of 2004, whereupon an Advocate Commissioner was appointed, who with the help of a Surveyor and an Engineer, measured the suit properties and valued them and ultimately filed his report. The docket entries made by the lower Court in I.A.No.1356 of 2004, would demonstrate and exemplify that objection was not filed to the Commissioner's report by any one of the parties. It is also to be noted here that for enquiry also the original appellant/Duraisamy who was alive, did not participate. As such, the Court based on the Commissioner's report and sketch, passed the final decree specifying the portion which was suggested by the Commissioner in favour of the plaintiff. The fact remains that the deceased Duraisamy did not file any application for obtaining final decree in his favour after paying necessary Court fee.

(3.) THE gist and kernel of the grounds of appeal as put forth by the learned counsel for the appellants, could tersely and briefly be set out thus: