AMSATH ANSARI JAWAHAR Vs. S SIKKANDAR BATCHA

JUDGEMENT

(1.) THE petition to condone delay of several years in filing a memo of cross-objection has been dismissed by a learned single Judge of this court. He has accordingly dismissed the memo of cross-objection. He has also dismissed a petition for adding proposed parties as respondents 6 to 10 in the appeal A. S. No. 148 of 1984 Which is filed against the decree of the Court of the 111 Additional Subordinate Judge, Madurai (in O. S. No. 316 of 1980 ). He has also rejected the application for interim injunction against the 1st respondent (1st defendant) in the suit and the proposed respondents. THEse appeals have been filed against the order common to all these petit ions. THE plaintiff/ appellant filed the original suit for partition of certain properties between the plaintiff and the defendants in the suit. While the suit was pending it appears that Land Acquisition proceedings started with respect to item No. 7 of'c' schedule properties in the suit. It was contended before the trial court on behalf of the defendants that there can be no division of a properly which has been subjected to the land acquisition proceedings. THE trial court decreed the suit for partition in respect of other properties, but excluded item No. 7 of'c' schedule properties on the ground that it had been subjected to land acquisition proceedings. THE first defendant ,aggrieve d by the decree for partition in respect of the joint estate has preferred appeal a. S. No. 148 of 1984. It appears however that the Land Acquisition Proceedings in respect of item No. 7 of the'c'schedule property were later withdrawn. THE appellants herein also learnt how-ever that the first defendant intended to dispose of the said item No. 7 of'c' schedule properties tak-ing advantage of the fact that it was excluded from partition decree by the trial Court. THE plaintiff/ respondent moved this court with an application for injunction against the 1st defendant and the proposed transferees and also preferred cross-objection to the appeal of the 1st defendant/ appellant in A. S. No. 148 of 1984, with a petition for condonation of delay. THE delay has been inor-dinate extending to a period of 6 years and 79days. Learned single Judge has rejected the petition for condonation of delay holding that the delay is entirely due to the negligence on the part of the appellant/plaintiff herein. In his words: "when the decree of the court below has negatived the claim of the petitioners for partition of item No. 7 of C schedule as acquisition proceedings were pending, it is the duly of the petitioners to verify whether the judgment was based on proper reasoning. THE petitioners would have certainly found out if the reasons given by the court below were erroneous and would have taken steps to prefer a regular appeal or cross-objections in time. THE delay is entirely due to the negligence on the part of the petitioners. I do not find any justification to condone the delay.' He has as a consequence rejected the cross-objection as well as the petitions for injunction.

(2.) . A suit for partition until preliminary decree stage is a suit for determination of the extent of shares of the parties and extends to all such properties which may be found in the common hotchpot of the joint family of the parties. It is for that reason that it is said that in a suit for partition the plaintiff is in the position of a defendant and the defendant is in the position of a plaintiff. Only because there has been a land acquisition proceeding, it is difficult to conceive any impediment in making a declaration as to the extent of shares between the parties in the property that was subjected to acquisition under the Land Acquisition Act. When a property is subjected to land acquisition and there is a dispute as to who is the owner of the property or there is a dispute as to the extent of the rights and interests of various persons in such a property, for grant of compensation, Secs. 18 and 30 of the Land Acquisition Act take care of such disputes. Item 7 of'c' schedule could have been continued as a joint estate for the purposes of preliminary decree in the suit, as there was no abatement of the suit in respect of the said item of the property, merely because there was a land acquisition proceeding. But if it was contended, prejudice was caused to either party by such exclusion for claims, for, compensation or apportionment thereof could be made by each co-owner of the property under Sec. l8 of the Land acquisition Act of in the event of a dispute as to the interest or extent thereof under Sec. 30 of the said Act. If no cross-objection was filed thus for the reason that item No. 7 of'c'Schedule property had been excluded from the joint estate of the parties although the court decreed the suit of the plaintiff for partition of the joint estate, by the plaintiff, no serious blame for that can be put upon the plaintiff/appellant.

(3.) ON the facts of this case, we would- have decided to remit the case to the learned single Judge for a decision as to whether this is a lit case for the exercise of discretion for extending time for filing the cross-object ions; but we do not intend to do so for the reason that even if there is no cross-objection the appellate court has got the power to go into that part of the judgment of the trial court wherein it has decided to exclude item 7 of'c'schedule property from partition, that being an issue decided by the trial court in the suit, whether in the final judgment or at any inter-locutory stage is a ground that may be available to a party in the appeal and exercising appellate power, we have every reason to believe it shall act in the interest of justice and shall take notice of all relevant aspect of the case, so that nothing unjust occurs and no person is denied his due in accordance with law. The appellant herein shall for the reason the dismissal of the cross-objection not suffer any injury except that in case the first defendant would withdraw his appeal, the court shall have no appeal before it to decide, but had the cross-objection been there, he would have asked for its disposal in accordance with law, even after the dismissal of the appeal for default or withdrawal. We propose accordingly to leave the matter at the ultimate discretion of the appellate court at the hearing of the appeal to decide how it shall determine the controversy between the parties and how shall it finally administer justice, exercising its power under Rule 33, O. 41, Code of civil Procedure. We however think it necessary to order that the development in the suit ar e such that the transferees from the 1st defendant are necessary for effective and final adjudication of the controversy between the parlies. They have to be added in the appeal, and accordingly they have been heard by us through their counsel.