V GUNASEKARA MUDALIAR Vs. M MOHAN

JUDGEMENT

(1.) THIS appeal has been preferred against the Judgment and decree in A. S. No. 108 of 1994 on the file of the Court of Principal District Judge, Vellore. The appellant is the plaintiff in O. S. No. 56 of 1989 on the file of the Court of Subordinate Judge, Vellore.

(2.) THE suit was filed for partition of plaintiff's 1/3rd share in the plaint schedule property. A preliminary decree for partition was passed allotting 1/3rd share to the plaintiff and the remaining 2/3rd share in the suit property to the defendants. Against the passing of the preliminary decree, there was no appeal preferred by the parties and thus it become final. A petition for passing of final decree was filed in I. A. No. 708 of 1990 in O. S. No. 56 of 1989, and a Commissioner was appointed and he filed Ex C1 report and Ex C2 plan. The plaintiff has filed objections to the Commissioner's report stating that a frontage of 4 feet alone was given to him on the southern side, but it will be inconvenient for him to enjoy his 1/3rd share which is an extent of 4 feet x 24 feet in the plaint schedule property. According to the plaintiff, it can be used only as a pathway and he cannot enjoy his share which is situated in the suit property conveniently.

(3.) THE learned trial Judge considered the objections filed by the plaintiff in accordance with Ex C1 and Ex C2 and after rejecting the objections made by the plaintiff, passed final decree in terms of the preliminary decree and in accordance with Ex C1 report and Ex C2 plan. Aggrieved by the findings of the learned trial Judge, the plaintiff has preferred an appeal in A. S. NO. 108 of 1994 before the learned first appellate Judge. The learned first appellate Judge also considered the objections made by the plaintiff and ultimately held that there is no valid ground in the appeal and consequently dismissed the appeal confirming the judgment and final decree passed by the lower Court without costs. Aggrieved by the findings of the first appellate Court in A. S. No. 108 of 1994, this second appeal has been preferred by the plaintiff.