R SAMBANDAM Vs. G CHIDAMBARAM PILLAI

JUDGEMENT

(1.) THIS civil revision petition is against the order of the learned Subordinate Judge, Mayuram, rendered in I. A. No. 1207 of 1979 on his file. The revision petitioner was the 28th defendant in the suit O. S. No. 131 of 1971 out of which the said interlocutory application arose. The respondents/plaintiffs filed a suit for division of the plaint, schedule properties, except item No. 11, by metes and bounds after removal of the superstructure in item No. 14 of the plaint schedule properties. A preliminary decree was passed in terms of a compromise petition filed by the parties who were present. The decree directed inter alia removal of superstructure built on item 14 of the plaint schedule property. A petition for final decree was filed by the plaintiff for appointment of a Commissioner and division of the properties in accordance with the preliminary decree. In that final decree proceedings, the 28th defendant, who remained ex parte at the trial stage, applied in I. A. No. 1207 of 1979 out of which this civil revision petition arises for allotment of item 14 of the suit properties to his share. His contention was that he has built a superstructure valued at Rs. 20,000 and is also running a rice mill and if the building is demolished, he would be put to irreparable loss. The respondents plaintiffs is their answer refuted the allegation that the value of the building was about Rs 20,000 and contended that the site on which the superstructure was built is a valuable property and has to be allotted after removal of the superstructure. The Subordinate Judge was of the view that the preliminary decree passed by the Court had become final and dismissed the petition. The 28th defendant challenges that order in this civil revision petition.

(2.) LEARNED counsel, Mr. G. Subramanian, for the revision petitioner contended that the claim of the revision petitioner for allotment of item 14 in the plaint schedule is only in the nature of a claim for equity and that the question of actual allotment of the property arises only at the stage of final decree and the party who desires a particular mode of allotment should approach only at the stage of final decree. In support, the learned counsel relied on a Full Bench decision of this Court in Basavayya v. Guruvayya1. He invited my attention to the following passage: