M K MUHAMMAD FATHIMA ABDUL HAMEED ABDUL KAREEM BALKIS BEEVI RAHMATUNNISA JALMANACHIA Vs. M K MUHAMMED IBRHIM THANJAVUR CO OPERATIVE MARKETING FEDERATION LTD

JUDGEMENT

(1.) This appeal has arisen from out of the fair and decretal order dated 28.10.1983 made in I.A.No. 251 of 1979 in O.S.No.614 of 1979, passed by the Court of Subordinate Judge, Pattukottai, whereby it has granted the final decree on the preliminary decree passed in the Original Suit.

(2.) The appellant is the plaintiff and he filed a suit originally in O.S.No.9 of 1967 on the file of District Court, West Thanjavur for partition and separate possession of her one fourth share in the suit properties providing for payment of all liabilities of the estate, for costs of the suit and for directing the 5th defendant to pay costs of the plaintiff; that it was transferred to the file of Sub Court, Thanjavur and re-numbered as O.S.No.55 of 1967; that defendants 1,2, 4 and 5 contested the suit; that a Commissioner was appointed to inspect the suit properties and to file a report; that issues were framed for consideration; that witnesses were examined and documents were marked; that after trial the Additional Subordinate Judge, Thanjavur passed a preliminary decree on 31.10.1969 in respect of the plaintiff's 1/4th share in the plaint A to D schedules and movables as per the Commissioner's inventory; that the trial court ordered that the exact amount of the outstanding due to the estate and due from the estate would be decided at the time of passing of final decree, that the 2 nd defendant would be paid Rs.1500/- out of the estate towards the funeral expenses as also the expenses of litigation in opposing the suit filed against the estate and in protecting its interest; that the costs of the suit as regards the plaintiff, 1st defendant and 2nd defendant would come out of the estate and defendants 4 and 5 would bear their own costs; that mesne profits would be determined in a separate application; that decree to be drafted after the payment of court fee.

(3.) Thereafter the plaintiff filed I.A.No.12 of 1979 in O.S.No.55 of 1967 to pass a final decree; that petition was transferred to Subordinate Judge, Pattukottai and the petition and suit were re-numbered as I.A.No.251 of 1979 in O.S.No.614 of 1979; that a Commissioner was appointed; that the parties filed objections to the Commissioner's report; that the trial court rejected the report of the first commissioner; that a 2nd commissioner was appointed to file the report and plan; that the trial court passed a final decree on 28.10.1983, accepting and modifying the divisions made by the commissioner in his report and allotted 1/4th share in A to E schedule to the plaintiff; that the trial court allotted certain items in A to E schedules also to the 1 st respondent; that towards ovelty the trial court ordered that the petitioner/plaintiff has to pay a compensation of Rs.4903/- to the 2nd respondent's heirs; that the 1st respondent in turn has to pay compensation of Rs. 5367/- to the petitioner and Rs.11,193/- to the 2nd respondent's heirs; that the trial court further ordered that costs of the final decree proceedings to the petitioner would be paid by the first respondent and that the parties would bear the Commissioner's fee themselves.