A. UMASHANKAR Vs. PREMAVATHY

JUDGEMENT

(1.) This Civil Revision has been preferred against the fair and decreetal order passed in I.A.No.1 of 2019 in I.A.No.17008 of 2016 in OS.No.1635 of 2012, dtd. 6/4/2023 on the file of the III Additional City Civil Court, Chennai.

(2.) The fact of the case is that the respondents/plaintiffs filed a suit in O.S.No.1635 of 2012, on the file of the III Additional City Civil Court, Chennai against the petitioner/defendant for partition claiming 7/11 share in the plaint A schedule property, besides "B" schedule movable properties, in which, a preliminary decree was passed on 7/3/2015 in favour of the respondents/plaintiffs. No appeal had been filed as against the preliminary decree and hence, it become final. As per the preliminary decree, the respondents/plaintiffs are entitled for partition of 7/11 share in the suit "A" & "B" schedule properties. In pursuance of the preliminary decree, the respondents/plaintiffs had filed a petition in I.A.No.17008 of 2016 for passing final decree and to divide the suit properties by metes and bounds through the Advocate Commissioner and to allott 7/11 share. In pusuance of the same, Mrs. K. Jayakarthiga, Advocate, was appointed as an Advocate Commissioner. The Advocate Commissioner had visited the suit property and filed his Report dtd. 30/11/2017 stating that as per warrant, the extent of land in "A" schedule property is mentioned as 936 sq.ft., but, when it is measured physically, it comes around 972 sq.ft. the building can be divided into two shares, i.e., 616 sq.ft, for 7/11 shares to the respondents/plaintiffs and 352 sq.ft for 4/11 shares to the petitioner/defendant. For more precise division, the Engineer's opinion can be taken. Since the Advocate Commissioner's report was not certain about the divisibility of the building, one Mr.P.Anbarasan, Chartered Engineer was appointed for the purpose of finding out the divisibility of the suit "A" schedule property. He has filed his Report dtd. 28/6/2019 and opined that the suit "A" schedule property is not divisible for allotting each such one share to each plaintiff and market value of the property is Rs.1,11,17,000.00. In pursuance of that report the learned Trial Judge, by an order dtd. 20/9/2019, fixed the value of the suit "A" schedule property at Rs.1,11,00,000.00 for sale of the same. Thereafter, the respondents/plaintiffs had filed a petition in I.A.No.1 of 2019 seeking to appoint an Advocate Commissioner to bring the Suit "A" schedule property for sale by way of Public Auction and the same was allowed and Mr.P.Periyasamy, Advocate, was appointed as Advocate Commissioner to bring the suit "A" schedule property for sale by Public Auction after following all the formalities and procedure required for public auction. Aggrieved over the same, the present revision has been filed.

(3.) The learned counsel for the petitioner submitted that the Trial Court failed to note that the respondents herein did not ask 1/11 share each. The share of the respondents/plaintiffs is 7/11 and the petitioner/defendant is 4/11 share. As per the preliminary decree, 4/11 share comes to 346.56 sq.ft and 7/11 share comes to 606.48 sq.ft respectively and it is possible to divide and as per the report of the Advocate Commissioner dtd. 30/11/2017, "A" schedule property is divisible in nature. Therefore, seeking to allow the Revision and set aside the impugned order.