THE HON’BLE SRI JUSTICE K.C. BHANU
C.C.C.A.No.69 OF 2010 & C.R.P.No.1912 OF 2008
COMMON ORDER:
C.C.C.A.No.69 of 2010, under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908, is directed against the order, dated 21.01.2010, in I.A.No.1208 of 2003 in O.S.No.983 of 1992, on the file of VII Senior Civil Judge, City Civil Court, Hyderabad, whereunder and whereby, a final decree was passed allotting 19/40 shares to the branch represented by respondent No.1 herein/plaintiff and others, shown as ‘A’ portion in green colour and 21/40 shares to the contesting defendants i.e., respondent No.13 and appellants herein/D12 to D14 and others, shown as ‘B’ portion in red colour in the vertical division of plan, which shall be subject to the result of the Civil Appeals filed by the appellants herein/D13 and D14 before the Honourable Supreme Court of India; and after dividing the property, each branch may divide their individual shares in the respective branch among themselves according to their convenience, and making the vertical division made by the Advocate Commissioner as a part of the final decree.
2. C.R.P.No.1912 of 2008, under Article 227 of the Constitution of India, is directed against the order, dated 28.03.2008, in I.A.No.1208 of 2003 in O.S.No.983 of 1992, on the file of VII Senior Civil Judge, City Civil Court, Hyderabad, whereunder and whereby, the Advocate Commissioner was directed to divide the property into two parts or portions to be allotted to 19/40 sharers and 21/40 sharers both vertically and horizontally and leave option to the parties to choose one portion or part and if a party so chooses one portion of the property the other portion would go to remaining parties.
3. Learned Senior Counsel, Sri Prakash Reddy, appearing for the appeallants/D13 and D14 contended that on 20.10.2008, respondent No.1/plaintiff and other respondents/defendants who are sailing with him, namely, respondent Nos.2 to 12, 15 to 17 and 24 to 29 herein/D1 to D11, D16 to D18 and D25 to D30, filed a memo, stating that the rear side portion marked as ‘A’ and shown as 19/40 with green colour zebra crossing line in the plan prepared under the supervision of the Advocate Commissioner by the structural consent, be allotted to them in the final decree, subject to the condition of the appellants/contesting defendants accepting and expressing willingness to take the front portion marked as ‘B’ and shown as 21/40 with red colour zebra crossing lines in the plan, as per their work memo previously submitted before the Advocate Commissioner in July, 2004; that therefore, when respondent No.1 herein and other respondents, who are sailing with him, opted for rear side portion, the same should have been accepted by the trial Court while passing the final decree; that in alternative, the appellants/D13 and D14 and others are entitled for 844.03 square yards of the suit schedule property in terms of the final decree towards their 21/40 share;and hence, it may be clarified in the final decree.
4. On the other hand, learned counsel for the respondents contended that though that offer was made to put an end to the litigation in view of the fact that the suit is of the year 1992, the appellants/contesting defendants are not coming forward to accept the same; that therefore, the trial Court after considering the Commissioner’s report passed the impugned order, balancing the rights of both the parties by dividing the property vertically, so that both the parties can have direct access to main road; that the appellants/D13 and D14 shall have access to their property from two sides i.e., from main road as well as side road, which is to the eastern side of the suit schedule property; that therefore, the impugned order needs no interference by this Court.
5. The factual matrix is not in dispute. No doubt, after division of the property by the Advocate Commissioner, on 20.10.2008, respondent No.1/plaintiff and respondent Nos.2 to 12, 15 to 17 and 24 to 29 herein/defendant Nos.1 to 11, 16 to 18 and 25 to 30 filed a memo stating that in the final decree proceedings rear side portion of the suit schedule property may be allotted to them and the front side portion of the schedule property may be allotted to the appellants and others. The contention of the learned counsel for the respondents for filing such a memo is to put an end to the litigation, which was pending for more than 16 years. Having given offer at that time, the appellants have not yet accepted the offer by way of memo filed on behalf of respondent No.1 and others and if the appellants are ready and willing to divide the property as suggested by respondent No.1 and others, it would have been done long back avoiding litigation for all these years. Therefore, that cannot be given much importance to the said memo in these proceedings.
6. The shares of the parties as determined by the trial Court in the preliminary decree had attained finality. In pursuance of the entitlement of shares in pursuance of preliminary decree, the property has to be divided by metes and bounds. It is not the case of both the parties that the property now divided is not according to the shares that were determined to them in pursuance of the preliminary decree. Therefore, the entitlement of shares of the parties in pursuance of the preliminary decree are not in dispute. The final decree proceedings have to be passed after duly dividing the property in to metes and bounds so as to allot them. For that purpose, an Advocate Commissioner was appointed to divide the properties. If the contention of the learned counsel for the appellants has to be accepted, certainly there is no balance of equity because respondent No.1/plaintiff and others, who are having 19/40 share in the suit schedule property, would get rear side portion, which is not having any main road face. The part of property exclusively facing the main road if allotted to the appellants and some others is not a reasonable distribution of property. Such a course is not proper and equities require that all the parties shall get reasonable equal share in the suit schedule property in pursuance of the preliminary decree. The Advocate Commissioner divided the property vertically, duly putting in green colour a zebra crossing line with indication 19/40 and marking ‘A’, and in red colour a zebra crossing line with indication 21/40 and marking ‘B’, which was accepted by the trial Court. ‘A’ portion, which was marked in green colour, was allotted to respondent No.1 and others, who are having 19/40 share, whereas ‘B’ portion, which was marked in red colour, was allotted to the appellants and others, who are having 21/40 share in the suit schedule property. If this plan has to be accepted, it would clearly go to show that equity would be maintained in between both the parties. That is the reason why the trial Court rightly accepted the plan dividing the property vertically by the Advocate Commissioner. That acceptance of plan by the trial Court cannot be shown to be unreasonable, unjust or unequal distribution of the suit schedule property among the sharers. If the report of the Advocate Commissioner with regard to division of property is to be accepted, both the parties will get equal distribution of suit schedule property facing towards the main road side. However, one more advantage to the appellants and others, who are having 21/40 share, is that they will have an access to a side road which is located on the eastern side of the suit schedule property. Therefore, the report of the Advocate Commissioner was rightly accepted by the trial Court and there are absolutely no grounds to interfere with the final decree proceedings. However, it is made clear that by virtue of the preliminary decree, respondent No.1 and others, who are having 19/40 share in the suit schedule property, are entitled for 763.9 square yards of site, whereas the appellants and others, who are having 21/40 share in the suit schedule property, are entitled for 844.30 square yards of site. Making it clear, the final decree proceedings are confirmed. The appeal is devoid of merit and is liable to be dismissed.
7. In view of the fact that C.C.C.A. is liable to be dismissed, no further orders are required to be passed in the Civil Revision Petition.
8. During the pendency of the litigation, this Court by order, dated 24.07.1995, in C.M.A.No.805 of 1995, appointed a Receiver i.e., appellant No.1, to manage the suit schedule property. In pursuance of the directions given by this Court, the Receiver was depositing the rents duly in the lower Court to the credit of the Original Suit. The parties as per entitlement are at liberty to withdraw the money in deposit in terms of the final decree proceedings i.e., respondent No.1/plaintiff and others who are sailing with him, having 19/40 share in the suit schedule property, are entitled for 19/40 share, whereas the appellants and others, having 21/40 share in the suit schedule property, are entitled for 21/40 share.
9. Accordingly, the C.C.C.A. and the Civil Revision Petition are dismissed. There shall be no order as to costs.
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K.C. BHANU, J
November 26, 2010
MD
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
AT HYDERABAD
FRIDAY, THE TWENTY SIXTH DAY OF NOVEMBER
TWO THOUSAND AND TEN
PRESENT
THE HON'BLE SRI JUSTICE K.C. BHANU
C.C.C.A.No.69 OF 2010 & C.R.P.No.1912 OF 2008
C.C.C.A.No.69 of 2010:
Between:
Smt. Indiralal and another
.....APPELLANTS
AND
Mr. Kedarnath Mahendra and others
....RESPONDENTS
C.R.P.No.1912 of 2008:
Between:
Smt. Indiralal
.....PETITIONER
AND
Kedarnath Mahendra and others
....RESPONDENTS
The Court made the following:
THE HON’BLE SRI JUSTICE K.C. BHANU
