K SAROJAMMA Vs. G C RAMAIAH

JUDGEMENT

(1.) Heard the learned Counsel on both sides.

(2.) This appeal is directed against the order granting a final decree allottingthe suit property to the respondents herein who are the legal representatives of the deceased plaintiff on deposit of a sum of Rs. 43,000/- representing the value of the l/4th share of the appellant

(3.) The appellant herein is the first defendant in the suit. She is no otherthan the sister of the deceased plaintiff. The suit property i.e., Item No. 1 of the plaint schedule consists of a meagre extent of 96 Sq.yards of site with a house therein. The suit was filed by the brother against the sister for declaration of title and for recovery of possession of the suit property. The Court, however, held that the plaintiff-brother was entitled to 3/4th share and the sister (first defendant) was entitled to 1/4th share in the property and accordingly granted a preliminary decree for partition on 29-9-1984. Questioning the preliminary decree the first defendant filed A.S.No. 2848 of 1984 in this Court which was dismissed on 1/-11-1994 confirming the decree of the trial Court. Pursuant to the preliminary decree the plaintiff applied for passing a final decree in I.A.No 41 of 1985. As the Commissioner, who was appointed to make the division reported that the property is not capable of being divided, the Court passed an order dated 15-/-1995 directing the property to be auctioned between the parties. The first defendant sought for review of the said order. But the application for review was dismissed by the trial Court. Questioning the same, the first defendant preferred C.R.P.No. 911 of 1997 in this Court which was dismissed on 11-4-1997, Meanwhile the property was put to auction on 4-4-1997. The first defendant, however, refused to participate in the auction and the plaintiff was thereupon directed by the Court to file valuation certificate. Accordingly the plaintiff produced a certificate from the Sub Registrar concerned to the effect that the market value of the property was Rs. 1,72,000/-. Accepting the said valuation, the Court passed an order on 21-4-1997 directing the plaintiff to deposit a sum of Rs. 43,000/- towards the 1/4th share of the first defendant on or before 28-4-1997 and accordingly the plaintiff deposited the sum of Rs. 43,000/- on 24-4-1997 and also deposited N.J. stamps for preparing the final decree. By the impugned order dated 28-4-1997, the lower Court passed the final decree allotting the suit property to the plaintiff and permitting the first defendant to withdraw the sum of Rs. 43,000/- deposited by the plaintiff towards her share. Questioning the said order, the present appeal is filed by the first defendant.