Animadverting upon the order dated 10.06.2008 passed by the learned District Munsif Cum Judicial Magistrate, Thiruvotriyur, in I.A.No.128 of 2001 in O.S.No.62 of 1997, this civil revision petition is focussed.
2. Heard both sides.
3.A summation and summarisation of the case of the petitioner as stood exposited from the records could be portrayed thus:
The first respondent filed I.A.No.128 of 2001 before the lower court seeking final decree after getting appointed Advocate Commissioner to visit the suit property. However, it appears that the petitioners herein filed I.A.No.122 of 2008 and got an interim order, whereby the Advocate Commissioner submitted his interim report. The present revision is as against the order dated 10.06.2008 passed in I.A.No.128 of 2001.
4. The grievance of the petitioners as put forth by the learned counsel for the petitioners is that the lower Court without giving direction to the Commissioner to suggest ways and means of working out the equities that are available in favour of the petitioners herein, who are the purchasers of some portions of the sharers in the suit property, simply refrained from doing so. The learned counsel for the revision petitioners would submit his argument that the petitioners herein being the purchasers of the various portions of the second item of the suit property are entitled to equity and the Commissioner unless measures the suit property in such a manner and suggest ways and means of working out the equities in favour of the petitioners, the lower court will not be in a position to decide anything in favour of the petitioners.
5. The learned counsel for the first respondent/petitioner/plaintiff would submit that I.A.No.128 of 2001 was filed by the first respondent herein for getting the Commissioner appointed so as to visit the suit property and measure the same and suggest ways and means of partitioning the suit property as per the preliminary decree. As such, it is prematured on the part of the petitioners to pray for their equities, and after all they have only stepped into the shoes of the original sharers.
6. Considering the pro et contra, in this factual matrix, I am of the view that the lower Court cannot relegate its power of working out the equities of the petitioners, to the Commissioner. However for the purpose of effectively partitioning the suit properties and also award equities if any in favour of the petitioners, necessarily details should be furnished by the Commissioner. Hence the lower Court is directed to formulate directions for the Commissioner so as to enable him to visit the suit property and suggest ways and means of working out the equities if any, in favour of the petitioner. In other words, the alternatives have to be worked out by the Commissioner and suggested to the Court, where upon the Court has to finally decide upon the equities and also the final apportionment and allotment of the portions to the parties concerned. With this direction, this petition is disposed of. No costs. Consequently connected miscellaneous petition is closed.
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1. XVII Assistant Judge, City Civil Court, Chennai