V MUNUSAMY Vs. M SUGUNA

JUDGEMENT

(1.) THE above Civil Miscellaneous Appeal has been directed against the order of the II Additional Judge, City Civil Court, Madras dated 30-4-1992 made in A. S. No. 393/89 wherein the learned Judge remanded the suit to the trial Court (III Assistant Judge, City Civil Court, Madras) for fresh disposal in conformity with Section 4 (1) of the Partition Act. First defendant in I. A. No. 9105/81 on the file of 3rd Assistant Judge, City Civil Court, Madras is the appellant in the above appeal. The respondent herein/plaintiff filed the said suit for partition. The suit property is a building bearing Door No. 70/1, New No. 13 in Sundaraja Perumal Koil street, Peravellore, Madras-82, originally belonged to one Athiammal. She executed a settlement deed on 19-2-1951 in respect of the said property in favour of defendants 1 and 2 who are brothers. They were residing in a portion of the suit building and had let out the remaining portions to defendants 3 to 9. The first defendant was not amenable to give due share to the 2nd defendant in the suit property; accordingly, the 2nd defendant went out of the same and to live in his wife's house. The second defendant offered to sell his half share in the suit property to the plaintiff, who agreed to purchase the same. Accordingly, the share of the 2nd defendant was conveyed by him on 22-5-81 in favour of the plaintiff for a consideration of Rs. 20,000/ -. After purchase, the plaintiff issued lawyer's notice to the first defendant calling upon him to effect partition of the suit property in to two half shares. Since the same was not acceded to, the plaintiff filed the said suit.

(2.) THE suit was resisted by the first defendant by filing written statement. Ultimately, by judgement and decree dated 25-3-83, a preliminary decree was passed for partition and separate possession of half share in the property in favour of the plaintiff.

(3.) AFTER the preliminary decree, the first defendant filed I. A. No. 7745/87 under Section 4 (1) of the Partition Act before the 6th Assistant Judge, City Civil Court, Madras to ascertain the value of the share of the plaintiff in respect of the dwelling house of the petitioner therein/1st dwefendant situated at No. 13, Sundararaja Perumal Koil street which is the subject matter of the partition suit in O. S. No. 9105 of 81. The said application was contested by the respondent therein/plaintiff by filing counter statement. Learned III Assistant Judge, City Civil Court, Madras, after considering the rival contentions, ultimately allowed the application filed under Section 4 (1) of the Partition Act. Questioning the same, the respondent therein/plaintiff filed an appeal in A. S. No. 393/89 before the II Additional Judge, City Civil Court, Madras. The appellate Judge allowed the appeal, set aside the decree and judgement of the trial Court and remitted the matter back to the trial Court for fresh disposal according to law and in conformity with Section 4 (1) of the Partition Act. Questioning the said order of remand, the first defendant/appellant herein has preferred the present appeal. Pending disposal of the appeal, the sole appellant died and in his place his legal heirs, namely, appellants 2 to 5 were brought on record as per the order dated 1-12-2004 made in C. M. P. No. 13259 of 2004.