SANTHA Vs. K V JANARDHANA RAO

JUDGEMENT

(1.) THE unsuccessful plaintiffs 2 and 3 in O. S. No. 672 of 1987 on the file of the Additional Sub Court are the revision petitioners in this Civil Revision Petition. This revision is directed against the order of dismissal dated 23. 01. 2004 and made in I. A. No. 953 of 2002 filed under Order XXVI Rules 13 and 14 of the Code of Civil Procedure to appoint a commissioner for effecting division of items 1 and 2 as per the preliminary decree dated 13. 12. 200 passed in O. S. No. 672 of 1987 directing him to file a report with plans taking into consideration value, quality and provision for convenient enjoyment of the shares allotted to them.

(2.) THE plaintiffs filed the suit for partition in O. S. No. 672 of 1987 on the file of the Court of Additional Sub-Judge, Salem, and the suit properties consist of four items. The suit was contested by the defendants, which resulted in passing of preliminary decree on 13. 12. 2000 in respect of item Nos. 1 and 2 of the suit properties. With regard to item No. 3 of the suit properties, the suit was dismissed and in respect of item No. 4 of the suit properties also, the suit was dismissed as settled out of Court. The second defendant, while deposing evidence, admitted that the defendants have no objection for partition of item Nos. 1 and 2 of the suit properties and ultimately, preliminary decree was passed after contest in respect of the above said two items. No appeal was also filed challenging the passing of preliminary decree in respect of item Nos. 1 and 2 of the suit properties and as such, the preliminary decree passed in respect of the above said two items of the suit properties has become final. Challenging the dismissal of suit in respect of the third item of the suit properties, the plaintiffs 2 and 3 preferred appeal in A. S. No. 75 of 2001 on the file of the Court of II Additional District Judge, Salem, which was dismissed on 15. 02. 2002 confirming the judgment and decree passed by the Additional Sub-Judge, Salem. Challenging the finding in respect of item No. 3 of the suit properties, the plaintiffs preferred second appeal in S. A. No. 1552 of 2002 on the file of this Court and the same is pending.

(3.) THE plaintiffs 2 and 3 filed I. A. No. 953 of 2002 in O. S. No. 672 of 1987 on the file of the Court of Additional Sub-Judge, Salem, seeking for appointment of a Commissioner for effecting division of item Nos. 1 and 2 of the suit properties as per the preliminary decree dated 13. 12. 2000 passed in O. S. No. 672 of 1987. The trial Court dismissed the petition on the ground that the Second Appeal is pending before this Court in respect of the item No. 3 of the suit properties. Challenging the said order, the present Civil Revision Petition has been filed.