CORAMTHE HONOURABLE MR v. Ponnusamy Reddiar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 03.12.2007CORAMTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRP.NPD.No.917 OF 2003 & CMP.No.9517/20031.Ramasamy Reddiar2.Venu3.Bangaru Ammal .. Petitioners/Defendants/RespondentsVsPonnusamy Reddiar .. Respondent/Plaintiff/PetitionerPetition filed against the fair and decreetal order of thelearned District Munsif Court at Perambalur dated 20.03.2003 inI.A.No.1354 of 1995 in O.S.No.381 of 1996.For Petitioners:Mr.S.Parthasarathy, Sr. Counselfor M/s.Sarvabhauman AssociatesFor Respondent :Mr.BalasubramanianORDERThe civil revision petitioners are the defendants in the suit inO.S.No.381 of 1995 on the file of the District Munsif Court,Perambalur. The respondent herein is the plaintiff. Therespondent/plaintiff filed an interlocutory application inI.A.No.1354/1995 before the Lower Court praying for passing of finaldecree by means of appointing an Advocate Commissioner under OrderXXVI Rule 13 CPC. On 23.11.1951, a preliminary decree was passedbetween the parties. In the said interlocutory application, therespondent/plaintiff/petitioner has prayed for his separate share of1/4 in the application properties to be allotted to him.2.A.S.No.174 of 1960 filed against the judgment and decree passedin O.S.No.146/1958 by the learned Sub Judge, Thiruchirappalli, wasdismissed as withdrawn by this Court on 19.09.1963. InI.A.No.1354/1995 filed before the lower Court by therespondent/plaintiff/petitioner, it is specifically stated that it isgross lie to allot that as though A.S.No.174/1960 on the file of thisCourt was compromised by allotting certain properties to him and thesame was said to have been delivered on payment of Rs.300/- to himetc.3.It is relevant to point out that therespondent/plaintiff/petitioner in his affidavit in I.A.No.1354/1995 https://hcservices.ecourts.gov.in/hcservices/ has categorically averred that he has not engaged any advocate at HighCourt nor he has endorsed any compromise to be recorded by the HighCourt and that the fact remains that after the preliminary decree, theproperties were not divided by metes and bounds as per terms of thepreliminary decree and in filing final decree application, there is notime limit prescribed and since item Nos.10 and 11 of 'B' Schedulehave already been sold, no relief is prayed for against those itemsand therefore, prayed for dividing the application mentionedproperties into four shares by metes and bounds and for allotment of1/4 share.4.In the counter filed to the I.A.No.1354/1995, it isspecifically averred that after the passing of the decree by the SubCourt, Tiruchirappalli and during the pendancy of the appeal in HighCourt, a panchayat was held between the parties Ponnusamy Reddiar,Sadhasivam of Thirani, Ramasami Reddiar, Village Karnam of Thiraniacted as panchayatdars and that Sadhasivam was the Village Munsif andthat the panchayat was held in Chithirai, 1960 and it was decided bythe panchayatdars that the plaintiff must be given one acre of land inS.F.206/2 and cash of Rs.300/- towards means profit and that panchayatdecision was accepted by the parties and accordingly, the plaintiffwas given exclusive possession of one acre in S.F.206/2 of Thiranivillage and and later a sum of Rs.300/- was paid on 02.07.1960 and forthe said payment a receipt was given by the plaintiff which wasattested by the panchayatdars, viz., Ponnusamy Reddiar, Sadhasivam andRamasami and in pursuance of the panchayat and acceptance thereof, thepetitioner/plaintiff was given exclusive possession of one acre ofland and originally Survey No.206/2 consists of one acre 98 cents andafter the panchayat, to have separate patta in the name of theplaintiff was subdivided in U.D.R. Proceedings as 206/2B patta wasgiven and he was paying the kist and was in exclusive possession ofthe property etc.5.It was further alleged that in regard to the remaining lands,patta stood in the name of Ramasami, the first petitioner/firstrespondent before the Lower Court and he was paying kist and by mutualarrangement a partition was effected between the parties which wasaccepted by them and the same came into force and therefore therespondent/plaintiff/petitioner was not entitled to seek the relief ofpassing of final decree, since the partition was already effected.6.The delay of 32 years in filing the final decree application israised as one of the grounds in this civil revision petition by therevision petitioners/defendants/respondents.7.It is the case of the revision petitioners that by mutualconsent, the partition was effected and as such, interlocutoryapplication praying for passing of final decree will not lie beforethe Trial Court.8.According to learned counsel for the revision petitioners thatthe order of the learned District Munsif in I.A.No.1354/1995 dated https://hcservices.ecourts.gov.in/hcservices/

20.03.2003 is illegal because of the fact that the application forfiling decree is not maintainable, since the same was filed after 32years of passing of the preliminary decree. It is also the case ofthe revision petitioners/defendants/respondents that the Court belowafter having accepted the evidence of DW.2 who was the witness toearlier panchayat between the parties ought to have dismissed theapplication and that in view of the earlier compromise before thisCourt, the application for final decree is not maintainable. 9.Learned counsel for the respondent/plaintiff/petitionercontends that the application in I.A.No.1354/1995 praying for passingof the final decree is maintainable in law, since no time limit isprescribed for filing final decree application. The learned DistrictMunsif while allowing the application for appointment of Commissionerhas appointed out through R.Manivannan, advocate fixing theremuneration at Rs.1,500/- to be paid to him directly and that adirection was issued to the Commissioner to allot one acre to therevision petitioners herein in view of the sale of the first item ofproperty.10.It cannot be gainsaid that there are cases in between theparties from 1958. The Trial Court has not accepted the case ofcompromise before the High Court. Further, it transpires that theappeal in A.S.No.174/1960 was 'dismissed as withdrawn' on 19.09.1963as borne out by records. When the appeal in A.S.No.174/1960 wasdismissed as withdrawn on 19.09.1963, there is no indication of anycompromise arrived at between the parties as seen from the saidjudgment. The parties interse are co-owners cannot be denied by anystretch of imagination.11.In AIR 2002 KARNATAKA 439 between A.P.MADANNA [deceased] BYL.RS. VS. A.P.KUSHALAPPA AND OTHERS, it is observed as follows:-"Registration Act [16 of 1908], S.23 – Civil P.C. [5of 1908], O.20, R.18[2] – Registration of decree –Limitation – Partition Suit – Preliminary decree drawnup to 08.04.1999 in terms of compromise entered intobetween parties – Parties presenting stamp papercommensurate to value of properties falling to theirshare – Final decree engrossed on said stamp papers on07.12.2000 - Executable final decree comes intoexistence on 07.12.2000 – Presentation of decree on22.12.2000 for registration is within limitationperiod of 4 months from passing of decree –Registration is valid."12.In AIR 1989 KERALA 289 AT PAGE 290 between LAXMI AND OTHERS V.SANKAPPA ALWA AND OTHERS, it is held as follows:-"[A]Civil P.C. [1908], Ss.11, 97 and O.20,respondent.18 – Suit for partition – Preliminarydecree passed - Matters decided by decree are final https://hcservices.ecourts.gov.in/hcservices/ and conclusive – Decision is final – Principle of resjudicate applies.[B]Civil P.C. [1908], Ss.11 and O.20, R.18 – suit forpartition – Preliminary decree passed – Applicationfor drawing up final decree – It is not one underLimitation At – Provisions of that Act do not apply."13.In AIR 1991 MADRAS 307 between MURUGAN Vs. CHIDAMBRAM PILLAIAND OTHERS, it is observed as follows:[B]Civil P.C. [1908], O.20, R.18 – Partition suit –Preliminary decree – Execution – conditional clause ofpayment in preliminary decree for giving possession ofplaintiff's share in property – Not independentlyexecutable as final decree till partition of property– Delayed application for passing final decree interms of preliminary decree – Not barred."14.In ILR 1967 [1] MADRAS 136 between MURUGAN Vs. CHIDAMBRAMPILLAI AND OTHERS, it is observed as follows:[B]Decree for partition by compromise of parties,providing that parties take delivery of propertiesallotted in execution – One party applying for passingof final decree by appointment of Commensurate –Propriety – One of parties taking possession outsideCourt – In such case there need be no final decreeproceeding - Court should enquire nito suchallegation."15.In a partition suit, there is no limitation for filing finaldecree application and any number of final decree applications can befiled until the suit is finally disposed of in the considered opinionof this Court. More over, as far as the present case is concerned,the Trial Court has not accepted the plea of village panchayatcompromise and therefore, the appeal in A.S.No.174/1960 was notpressed before the High Court. As a matter of fact, Ex.R.7, thereceipt dated 02.07.1970 given by the respondent/plaintiff/petitionerin favour of the first revision petitioner/first defendant/firstrespondent indicates that a sum of Rs.300/- was paid only towards*mesne* profits as claimed in O.S.No.146/1958 on the file of SubCourt, Tiruchirappalli. Though RW.2, Ponnusamy, in his evidence hasdeposed that he was present at the time of panchayat and that hefurther stated that one acre land and Rs.300/- was given to therespondent/plaintiff/petitioner, the same is belied by Ex.R.7-thereceipt, which only speaks for the receipt of Rs.300/- towards *mesne*profit. 16.Learned counsel for the revision petitioners brought to thenotice of this Court that Ex.R.3, the certified copy of the sale deeddated 16.05.1995 speaks of the respondent/plaintiff/petitioner selling https://hcservices.ecourts.gov.in/hcservices/ properties mentioned in the said document for Rs.19,000/- being thesale consideration and this can be taken note of by the Commissionerappointed by the Trial Court in the final decree application.17.Looking at from any angle, this court is of the consideredview that the interlocutory application in I.A.No.1354/1995 filed bythe respondent/plaintiff/petitioner for appointment of Commissioner ismaintainable in law even though the same was filed after 32 years andsince there is no limitation for filing the final decree applicationin law and inasmuch as the Court below has passed a considered orderon 20.03.2003 in allowing the said application and appointing aCommissioner and giving direction to the Commissioner as statedtherein, this Court sitting in revision, comes to the inevitableconclusion that the order passed by the learned District Munsif,Perambalur in I.A.No.1354/1995 in O.S.No.381/95 dated 20.03.2003 doesnot suffer from any illegality or infirmity and consequently, the sameis confirmed.18.The civil revision petition is dismissed confirming the orderof the Trial Court, to meet the ends of justice. However, there shallbe no order as to costs. Consequently connected miscellaneouspetition is also dismissed.ApSd/-Asst. Registrar.Dated : 06.12.2007Corrected order to be issuedSd/-Asst. RegistrarDated : 24.01.2008/true copy/Sub Asst. Registrar.ToThe District Munsif,|To be substituted to the order alreadyPermabalur.|despatched on 19.01.2007.1 cc to M/s.Sarvabhauman Association, Advocate, SR.713121 cc to Mr.S.Balasubramanian, Advocate, SR.71147sj (co)dv/7.12.CRP.NPD.No.917/2003 RVL 25.01.2008