P SRINIVASAN Vs. AVAYAMBIGAI; RAJAN; VASUKI; SUDHAKAR; JENBAGAVALLI

JUDGEMENT

(1.) The second appeal arises out of the judgment and decree dated 01.10.2007 made in A.S.No.44 of 2006 on the file of the Sub-Court, Mannargudi, partly allowing the appeal against the decree and order dated 25.06.2004 passed in I.A.No.183 of 2004 in O.S.No.136 of 2004 on the file of the District Munsif Court, Mannargudi.

(2.) The first respondent herein as a plaintiff filed a suit for partition and separate possession of 1/5th share in the suit property and preliminary decree was passed. In pursuance of the same, the plaintiff/first respondent was granted 1/24th share in the first item and 1/6th share in 2 to 8 items of the suit property. After passing of preliminary decree, the mother/first defendant died on 26.10.1993, so the plaintiff and other defendants succeeded her properties and their shares have been enlarged. Accordingly, the plaintiff/first respondent's share has been enlarged as 37/576 in the first item and 31/144 in 2 to 8 items of the suit property. So the plaintiff/first respondent filed a final decree application, wherein the Advocate Commissioner was appointed and filed a report. In pursuance of the same, final decree was passed. In the Commissioner's report, it was stated that the plaintiff/first respondent was allotted to 518 sq.ft. along with a house in the first item of the suit property, wherein, the second defendant/appellant is residing. So he preferred an appeal. The first appellate Court has partly allowed the appeal and modified in respect of the first item of the suit property by holding that the appellant/second defendant is entitled to 1500 sq.ft. including the house abetting the road and the plaintiff/first respondent is entitled to 1547 sq.ft. Aggrieved over the same, the present second appeal has been preferred by the appellant/second defendant.

(3.) At the time of arguments, the following substantial question of law has been framed: