K. ALAGAR Vs. K. CHITHIRAISELVAM AND OTHERS

JUDGEMENT

(1.) The above appeal has been preferred by the third defendant in the suit as against the final decree in I.A.No.354 of 2010 passed in O.S.No.74 of 2008 on the file of the First Additional District Court, Madurai. The respondents 1 to 4 herein filed a suit in O.S.No.74 of 2008 on the file of the First Additional District Court, Madurai, for partition of their ?th share in the undivided 1/2 share of Late Karuppannan @ Pambaiyan in the suit 'A' schedule property and for partition of 1/2 share in the properties described in 'B' schedule in the plaint and for permanent injunction restraining the defendants from cutting the standing trees in the suit properties.

(2.) The appellant herein who is the third defendant in the suit contested the suit mainly on the ground that the second suit for partition is not maintainable in view of the earlier suit in O.S.No.104 of 2005 wherein a preliminary decree was passed. He also claimed exclusive right in respect of few items. Since the earlier suit was in respect of the joint family properties of plaintiffs' father, all the contentions of appellant were rejected and a preliminary decree was passed on 29.03.2010. The appellant filed an appeal in A.S.(MD) No.204 of 2011 before this Court and by judgment and decree dated 22.11.2011, this Court with certain directions disposed of the appeal confirming the preliminary decree that was passed in the suit. Thus, the preliminary decree in O.S.No.74 of 2008 has become final.

(3.) After the disposal of the suit, the respondents 1 to 4 herein filed an application in I.A.No.354 of 2010 in O.S.No.74 of 2008 to appoint an Advocate Commissioner and to pass a final decree on the basis of the preliminary decree in O.S.No.74 of 2008. It is also pertinent to mention that earlier, a suit for partition was filed by the 10th respondent herein as against the father of third defendant and the same was also decreed. There was also preliminary decree for partition in the said suit, however, it was in relation to the properties of the joint family of father of plaintiff one Karuppannan @ Pambaiyan and his brothers. Another application for passing of final decree was also filed by the plaintiff in the suit in O.S.No.492 of 1976 (which was transferred from the District Munsif Court, Madurai to the First Additional District Judge and re-numbered as O.S.No.104 of 2005). I.A.No.57 of 2012 is the application filed by the plaintiffs in the suit in O.S.No.104 of 2005 for passing a final decree. After appointment of an Advocate Commissioner, a detailed report by the Advocate Commissioner, was filed. After preparing the valuation of each property and separate plan for each item, the Advocate Commissioner has suggested division by metes and bounds by taking into consideration the physical features and enjoyment of the parties and other aspects. The lower Court has finally passed a final decree accepting the Commissioner's report and suggestions after giving opportunity to all the parties concerned including the appellant before this Court. The appellant herein raised some objections with regard to the valuation. Apart from commenting the manner of division suggested by the Advocate Commissioner, the appellant contested the application by claiming exclusive right with regard to certain items despite the fact that his contentions were considered at the time when the suit for partition was disposed of by passing a preliminary decree for partition. The same contentions were once again raised by the appellant on the basis of few registered sale deeds in his favour. Since the contentions of the appellant had already been rejected by the Court in the earlier round of litigation, the lower Court after satisfying with the Commissioner's report as to the valuation and mode of allotment passed a final decree by a judgment and decree dated 30.10.2014. It is against the final decree, the present appeal has been preferred by the third defendant.