GANESAN Vs. PONNAMMAL

JUDGEMENT

(1.) THE revision petitioner is the third defendant in O.S.No.57 of 1983 on the file of the Principal Sub Court, Mayiladuthurai and the revision is filed challenging the correctness of the order dated 26.12.2002 in respect of the appointment of advocate-commissioner for division of items 1 to 3 of the suit properties, viz., 2/5 share in item No.1 and 2/6 share in item No.2 of the suit properties made in final decree proceedings in I.A.No.46 of 2002.

(2.) THE deceased Govindaraj Asari along with his sister, the first respondent Ponnammal filed the suit for partition of 2/5 share in items 1 to 3 of suit properties claiming that the suit properties are the properties of their father the deceased Ramasamy. THE suit was filed that the first plaintiff and the defendants 2 and 3 are brothers, who died during the pendency of the proceedings and the second plaintiff and the fourth defendant are sisters and the first defendant is their mother. THEir father Ramasamy died on 22.8.1982. Further, as per the case of the plaintiffs, the second defendant relinquished his right in the family properties as per the release deed executed by him in favour of his father, but since the second defendant purchased the undivided shares of the defendants 1, 3 and 4, he was impleaded for effective adjudication. THE plaintiffs 1 and 2 and the defendants 1, 3 and 4 alone are equally entitled to the suit properties. THE suit was filed on 25.8.1983.

(3.) THE learned counsel for the third defendant/revision petitioner reiterating the stand taken in the counter filed in the trial Court, advanced argument that inasmuch as, as per the direction issued by this Court in C.M.P.No.8599 of 1989, item 1 of the suit properties was divided between the parties as suggested by the advocate-commissioner taking into consideration of the report and rough plan and the defendants also taken delivery of their portion allotted to their shares in E.P.No.26 of 1990, which was closed on 13.7.1990 after recording the same and therefore, there is nothing remains for division of item 1 of the suit properties and accordingly, the order of the trial Court appointing the advocate-commissioner for division of both items 1 and 2 of the suit properties is improper and without any justification.