A very short question arises in this second appeal for consideration. The matter relates to the final decree passed by the trial court which was confirmed by the lower appellate court.
2. The suit was one for partition. It is not in dispute nor can it be disputed that the share to which the plaintiff and defendants 3 and 4 are entitled to is 1/3rd and so also the defendants 1 and 2 to 1/3rd. In pursuance to the preliminary decree, I.A.No. 527/2011 was moved for passing of final decree. A Commissioner was deputed and he filed Ext. C2 plan and report. Objections were filed by the appellants herein. Objections were considered and trial court found no reason to reject the Commissioners report and accepted the same and passed the final decree as follows:
“1. that plot 2, 2A and 2B in Ext.C2 plan is allotted to the share of plaintiff, defendant Nos. 3 and 4 who form Group A;
2. that plot 1, 1A and 1B in Ext. C2 plan is allotted to the share of first defendant who form Group B;
3. that plot 3, 3A and 3B in Ext.C2 plan is allotted to the share of 2nd defendant who form Group C;
4. that plot 4A and 4B in Ext.C2 plan is kept as common for ingress and egress to all plots in Ext.C2 plan and plot 5 in Ext.C2 plan is also kept as common;
5. that apart from the above allotments, 2nd defendant who form Group C shall pay an amount of ₹ 2,40,844/- (Rupees Two Lakh Forty Thousand Eight Hundred and Forty Four only) to plaintiff and defendant Nos. 3 and 4 who forms Group A and ₹ 2,25,224/- (Rupees Two Lakh Twenty Five Thousand Two Hundred and Twenty Four only) to first defendant who form Group B as owelty amount for equalization of share value. These amounts shall be a charge over Plot 3, 3A and 3B in Ext.C2 plan till its realization;
6. that respondent No. 1 and 2 is directed to pay an amount of ₹ 80,000/- (Rupees Eighty Thousand only) each per year with effect from October 2002 till realization of surrender of possession of share of building and share of profits to defendant No. 1, 3 and 4. This amount shall be a charge over plot 1, 1A, 1B, 3, 3A and 3B in Ext.C2 plan till its realization;
7. that all parties are directed to suffer their costs in accordance with their respective shares;
8. that Ext.C2 and C3 shall form part of the final decree;
9. that deposit value of NJS for engrossing final decree.”
The lower appellate court, as already stated, confirmed the same.
3. Before this Court, two fold contentions are taken.
They are (1) that the building as such should have been alloted to defendants 1 and 2 and plaintiff and defendants 3 and 4 ought to have been given monetary value of their share (2) the assessment of ₹ 80,000/- per year and direction to pay the said amount from October 2002 till realization of surrender of possession of share of the building by each of the defendants 1 and 2 is illegal and cannot be sustained.
4. It is also contended that in 2008, when earlier Commissioner had visited the shop building, he had assessed the rental value at ₹ 1,80,000/- in which case the share of plaintiff and defendants 3 and 4 would come to only ₹60,000/-.
5. After having heard the learned counsel for the appellants and the learned counsel for the respondents, this Court finds little merits in the contentions raised by the learned counsel for the appellant except for some clerical error committed by the trial court which were overlooked by the lower appellate court. It has been found more than once that appellants cannot be alloted to the building and the plaintiff and the defendants 3 and 4 directed to receive the monetary value. That does not call for any interference at all.
6. It was submitted by the learned counsel for the appellants that it would have been better had the Commissioner suggested that the 3 floors of the building be alloted to three sharers separately instead of allotting rooms in each floor to each of the sharers.
7. Though the contention may seem attractive at the first blush, it can be seen to be without basis. This Court is given to understand that the building is a three storied building and it is being run as a lodge. There are 20 rooms as per the information now given by the counsel appearing on both sides. The rent in each floor will differ. The rent in the lower floor will be higher than in the upper floor. Obviously, the Commissioner has taken note of those situations and has alloted rooms in each floor to the respective sharers. The allotted shares read like this. The plaintiff and defendants 3 and 4 who are the wife and children of late Khalid are given plots 2, 2A and 2B. The first defendant is given Plot 1, 1A and 1B. The second defendant is given 3, 3A and 3B. 4, 4A and 4B and 5 are kept as common area.
8. After having gone through the records, it is seen that there could not have been a better allocation taking note of the fact that the building is one being used as a lodge and the rooms are being let out on daily rent basis. As rightly pointed out by the learned counsel for respondents allotting each floor to the different sharers may not be equitable. Therefore the building alloted by the Commissioner does not call for any interference.
9. The main contention taken is regarding the amount that is directed to be paid by defendants 1 and 2 to plaintiffs with effect from October 2002 till the surrender of possession of portion of the building. There contentions are two fold: one that the court below could not have directed the amount to be paid from October 2002 and the second contention is that in the year 2008, when the Commissioner visited the property, he assessed the annual rent as ₹ 1,80,000 in which case the share due to the plaintiff and defendant 3 and 4 will come to ₹ 60,000/-.
10. As regards the quantum of amount, it needs to be remembered that it is an average value that is to be taken by the Commissioner to assess the income from the lodge. It does not appear from the records now before this Court that any attempt was made by the contesting defendants to establish the actual income derived from the lodge and Commissioner had to speculate about the income. Considering the fact that there are 20 rooms in the building, the assessment made by the Commissioner seen at ₹ 2,40,000/- seems to be reasonable. If that be so, the share due to the plaintiff and defendants 3 and 4 comes ₹80,000/-.
11. True, in 2008, when the Commissioner visited on an earlier occasion, he assessed the rental value as ₹1,80,000/-. But as rightly pointed out by the learned counsel for the respondents the average amount for ten years had been taken note of by the Commissioner and there is nothing wrong in the said assessment from the annual income. Therefore, the direction to pay ₹ 80,000/-
also does not call for any interference.
12. However, clause 6 of the final decree passed requires modification. It is directed that respondents 1 and 2 to pay ₹80,000/- each to the plaintiff and defendants 3 and 4 which means that plaintiff and defendants 3 and 4 will get a sum of ₹ 1,60,000/- which is not contemplated by the preliminary decree nor is by the final decree. That has necessarily to be corrected. Again it is directed in Clause No. 6 that the share of the profits to defendants 1, 3 and 4 which is obviously wrong and it should read plaintiff and defendants 3 and 4.
13. The final decree as passed by the courts below subject to the modification of clause No. 6 which reads as follows:
Defendants 1 and 2 are directed to pay an amount of ₹ 80,000/- with effect from October 2002 till realization of surrender of possession of share of the building and share of profits to plaintiffs and defendants 3 and 4 together. This amount shall be a charge over Plot No. 1, 1A, 1B, 3, 3A, 3B shall stand confined.
14. A contention regarding pecuniary jurisdiction is raised by the learned counsel for the appellant. It is true that the valuation made at the time of institution of the suit was much lower than what is now assessed. But there seems to be no specific contention nor was an issue raised at that point of time regarding the court fee. It is too late on the part of the appellant to contend about adequacy of court fee paid. This contention is without basis and it is rejected.
It is pointed out by the learned counsel for the appellant and admitted by the learned counsel for the respondents that certain amounts have been paid during the pendency of the proceedings. Needless to say that while making payment as per the final decree, the amounts already paid will be given credit to.
ds //True Copy// P.A. To Judge Sd/-
P.BHAVADASAN JUDGE