This Civil Revision Petition has been filed by the petitioner herein, who is the plaintiff in the suit, against the order passed in I.A.No.368 of 2008 in O.S.No.80 of 2006 dated 30.07.2008, on the file of the learned I Additional Subordinate Judge, Tiruchirappalli.
2. The brief facts of the case is as follows:-
The revision petitioner/plaintiff had filed the suit for partition in respect of "A" Schedule of suit property comprising residential plot bearing Door Nos.15, 17 & 18 and "B" Schedule of suit property comprising landed property. The petitioner and the respondents 1 &2 constituted a joint family and the first respondent is the father, second respondent is the elder brother and respondents 3 & 4 are the sisters of the revision petitioner herein. The first respondent has filed a written statement stating that Door No.18 is his absolute property, whereas, Door Nos.15 & 17 and "B" Schedule property are ancestral property.
3. The first respondent has submitted in the written statement that he had executed a settlement deed in respect of Door No.18 in favour of the second respondent and had settled the remaining properties in "A" Schedule property i.e. Door Nos.15 & 18 in favour of the petitioner herein and "B" Schedule property in favour of his two daughters i.e. respondents 3 & 4.
4. According to the petitioner, the entire properties in "A" & "B" Schedule are ancestral properties and the first respondent has no right to deal with the suit properties. It is submitted that the suit property bearing Door No.18 ad-measures only 900 Sq.ft. But, the first respondent by way of settlement deed had bequeathed Door No.18 in favour of the second respondent by giving a description that Door No.18 admeasures 1520 Sq.ft. It is also contended by the learned counsel for the petitioner that Door Nos.15, 17 & 18 are contiguous plots and form one block and if 1520 Sq.Ft. is taken away as comprised in Door No.18 that would make Door No.15 & 17 remaining as door Nos., without any property. In order to explain the said position, she had sought for appointment of an Advocate Commissioner in the Interlocutory Application filed in I.A.No.368 of 2008. According to the petitioner, the Court below without proper application of mind and without considering the above factors has dismissed the said application.
5. Per contra, the learned counsel for the respondents contended that Door No.18 is an exclusive property of the first respondent, who has settled the said property in favour of second respondent and the property tax of Door No.18 has also been changed in the name of the second defendant herein and he has also paid taxes for the past three years. He would submit that the District Court has directed the Court below to dispose of the suit expeditiously, within a period of three months that expired on 09.08.2007 and this application has been filed by the petitioner only to protract the proceedings.
6. On a perusal of the impugned order, it is seen that the learned I Additional Subordinate Judge, Tiruchirappalli has dismissed the application filed by the petitioner on the ground that there was no dispute about the extent of the suit property and further, as the learned I Additional Subordinate Judge, Tiruchirappalli was directed to dispose of the case within a time frame, entertaining this petition would further delay the disposal of the suit.
7. It is the specific case of the petitioner that Door Nos.15, 17 & 18 are contiguous plots and they are found to be intact, and only, if they are measured according to the door numbers, the actual extent comprised in each door numbers could be found out and it will minimize much of oral evidence to be adduced by the parties.
8. As the first defendant has claimed exclusive ownership over the property in Door No.18, the necessity has arisen to find out as to whether the Door No.18 consists of only 920 Sq.ft. as submitted by the petitioner or 1520 Sq.ft. as settled by the first defendant in favour of the second defendant. If ultimately, it is found that the plot No.18 is the exclusive property of the first defendant, then the issue would become complicated and in the interest of justice to determine the actual extent comprised in each of the plot, it becomes necessary to appoint an Advocate Commissioner to measure the three plots and to give correct measurements to the Court. The trial Court has dismissed the petition mainly on the ground that the date has been fixed by the District Court for disposal of the suit and that should not deprive the petitioner to prove his case by letting in proper evidence. Therefore,this Court is of the view that the order passed by the Court below has to be set aside for the reasons stated supra.
Accordingly, the Civil Revision Petition is allowed and the order made in I.A.No.368 of 2008, in O.S.No.80 of 2006, dated 30.07.2008, on the file of the learned I Additional Subordinate Judge, Tiruchirappalli is set aside. Consequently, Connected Miscellaneous Petition is closed. There shall be no orders as to costs.
DP To The I Additional Subordinate Judge, Tiruchirappalli.