R.S. Ramanathan, J.@mdashThe second Defendant is the Appellant.
2. The Appellant challenged the final decree passed in O.S. No. 528 of 2001 in the second appeal. As per the preliminary decree dated 23.12.2004 the B schedule property has to be divided into four parts and two parts shall be allotted to the Plaintiff and the Defendants are entitled to the remaining two parts. The Appellant contested granting of preliminary decree upto Supreme Court and failed in their attempt. During the pendency of proceedings before the Supreme Court, there was No. stay. After the disposal of the Second Appeal confirming the preliminary decree passed by the Trial Court, final decree proceedings were initiated and after issuing notice to both the parties, the Commissioner inspected the properties and submitted a report stating that the properties can be divided as northern half and southern half as a road is going on the eastern side which will provide access for both the properties. Though notice was served on the Appellant, having regard to the pendency of the proceedings before the Supreme Court, the Appellant did not take part in the inspection of property by the Commissioner and also did not effectively contest the final decree proceedings. In the final decree proceedings, the Trial Court accepted the suggestion of the Respondents and allotted the southern portion which was shown as ''CD'' in the commissioner''s first plan and ''B'' portion in the second plan to the Plaintiffs/Respondents and passed final decree accordingly. The same was challenged in the first appeal and the first appellate court dismissed the appeal and hence, the second appeal.
3. The following substantial questions of law were framed at the time of admission of the second appeal:
1) Whether the courts below are correct in law in passing the final decree even before the disposal of the appeal filed against the preliminary decree particularly when the Commissioner had inspected the property in the absence of the Defendant or his representative?
2) Whether the courts below have committed an error in dismissing the I.A. No. 407 of 2009, I.A. No. 408 of 2009 and I.A. No. 378 of 2010 along with the appeal in A.S. No. 29 of 2008 even without affording an opportunity to challenge the orders passed in the interlocutory 4applications?
3) Whether the courts below committed an error in law in passing the final decree without following the principle of equity particularly when the interest of the Appellant/Defendant has not been taken into consideration?
4. Mr. N. Manokaran, Learned Counsel for the Appellant submitted that though notice was served on the Appellant by the commissioner while inspecting the property, having regard to the pendency of the appeal proceedings against the preliminary decree, the Appellant did not take part during the commissioner''s inspection and therefore, an opportunity may be given to the Appellant to suggest his views regarding division of property and for that purpose, the matter may be remanded to the Trial Court. He further submitted that the Trial Court allotted the southern portion marked as ''CD'' in the commissioner''s first plan and ''B'' portion in the second plan to the Respondents on the basis of the request made by the Respondents without giving an opportunity to the Appellant and according to the Appellant, the southern portion which was allotted to the Respondents is having road access and it is more valuable than the property situate on the northern side. He, therefore, submitted that the final decree may be set aside and the matter may be remanded to the Trial Court and the Appellant may be given an opportunity to express his views regarding the commissioner''s plan with regard to division of property.
5. I am unable to accept the contention of the Learned Counsel for the Appellant. It is not the case of the Appellant that No. notice was given to him by the commissioner before inspecting the property. Admittedly, notices were given by the commissioner and that was also mentioned clearly in the commissioner''s report and unfortunately, the Appellant failed to avail the opportunity given by the commissioner. Further, No. acceptable reason has been stated by the Appellant regarding the division of property as southern half and northern half. Admittedly, the road is passing through on the eastern side of the suit property and considering the same, the learned advocate commissioner has divided the property north and south-wise so that both the parties can have access to the road situate on the eastern side. Hence, I do not find any reason to interfere with the division of property by the learned advocate commissioner on the northern and southern side.
6. The next grievance is that the courts below, ought not to have granted the southern portion to the Respondents as the southern portion is having more value than the northern portion. Admittedly, this plea was not raised before the Trial Court by the Appellant and having regard to the topography of the property, one party has to be allotted either northern or southern portion and considering the suggestion made by the Respondents, the Trial Court has Allotted the southern portion to the Respondents and the northern portion to the Appellant and that cannot be found fault on the ground that the southern portion is having more value in the absence of any positive evidence to that effect. Hence, according to me, both the courts below have rightly allotted the southern portion to the Respondents/Plaintiffs and I do not find any reason to interfere with the passing of final decree by the courts below.
7. Having regard to the findings given above, the substantial questions of law are answered against the Appellant and the commissioner had inspected the property after giving proper notice to the Appellant and it is the Appellant who failed to avail the opportunity and therefore, the Appellant cannot take advantage of his own wrong and challenge the final decree on the ground that the commissioner inspected the property in his absence. Similarly, the lower appellate court has not committed any error in dismissing I.A. No. 407 of 2009, 408 of 2009 and 378of 2010 along with the appeal in A.S. No. 29 of 2008 as those applications were filed only for the purpose of re-appointment of commissioner to give opportunity to the Appellant and as stated supra, opportunities were given to the Appellant and he failed to avail the opportunities. Further, the courts below have not committed any error in passing final decree without following the principle of equity as claimed by the Appellant as the Appellant failed to place before the courts below about his grievance in the allotment of properties and when final decree was passed by the courts below, it was not represented by the Appellant that he should be allotted the southern portion or the southern portion is having more value. As stated supra, one party has to be allotted either southern or northern portion and in the absence of any specific contention with regard to allotment of portion on the southern side, the courts below have rightly exercised the discretion and allowed the southern portion to the Respondents and therefore, it cannot be held that the courts below have not acted fairly as claimed by the Appellant.
8. In the result, the second appeal is dismissed. No costs. Consequently, M.P. No. 1 of 2010 is also dismissed. M.P. No. 1 of 2011 is closed.
