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Petitioner v/s Respondent


    A.No. 3602 of 2014 in C.S.No. 1096 of 2009

    Decided On, 03 November 2015

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE G. CHOCKALINGAM

    For the Appearing Parties: ----------



Judgment Text

G. Chockalingam, J.

1. This application has been filed by the applicants / plaintiffs 2 and 3 to pass a final decree allotting 6/8 share in favour of applicants / plaintiffs 2 and 3 and 2/8 share in favour of the defendant by appointing an Advocate Commissioner by dividing the schedule mentioned property.

2. Heard the learned counsel for the applicants / plaintiffs 2 and 3 and the learned counsel for the respondent / defendant.

3. This Court, by order dated 03.09.2014, has appointed one Mr.S.Venkateswaran, as an Advocate Commissioner to inspect the suit schedule property in order to measure and to find out the physical features of the suit property so as to find the feasibility of dividing 3/4 th share to the applicants / plaintiffs 2 and 3, in terms of the preliminary decree passed by this Court dated 10.10.2013.

4. As directed by this Court, the learned Advocate Commissioner has inspected the suit property and also filed a report dated 23.03.2015 along with Surveyor's sketch.

5. The learned counsel for the plaintiffs 2 and 3 has filed objections to the Advocate Commissioner's report along with a draft plan.

6. The learned counsel for the applicants / plaintiffs 2 and 3 contended that the suggestion made by the learned Advocate Commissioner in his report is not beneficial to both the parties. If the property has to be divided as per the report of the learned Advocate Commissioner, some of the portion has to be demolished and it will not useful to both the parties. For avoiding the demolition of the property, the applicants / plaintiffs 2 and 3 are prepared to take the property as per the plan submitted on the side of the plaintiffs and they are ready to compensate the other side by giving the value of the property allotted in excess.

7. The plaintiffs 2 and 3 have filed objections to the Advocate Commissioner's report and in the said objections, they have stated that if the measurement of frontage 14'.5" is taken, it would affect the building portion which is in occupation of the plaintiffs and in result, it would cause demolition of the building and if such is the position, the allotment of land having a frontage of 14'.5" is absolutely meaningless and which will cause huge damages to the plaintiffs' building. Further, in paragraph No.4 of the objections, they have stated that if the extent of 1237.50 sq. ft., has been allotted to the defendant, which would result in affecting the building portion as already stated.

8. Further, on a careful perusal of the Advocate Commissioner's report, it is seen that the Advocate Commissioner roughly fixed the value of the car shed as Rs.90,000/-. But he has not taken into consideration the age of car shed and the depreciation allowable to that value. The learned Advocate Commissioner allowed depreciation for the value of the building to be allotted to the plaintiffs on the Western side.

9. In view of the objections raised by the learned counsel for the plaintiffs, the Warrant is hereby re-issued to the learned Advocate Commissioner to offer his remarks and to file additional report to the following effect:

a) The Commissioner has to answer all the objections raised by the plaintiffs regarding the demolition of the building;

b) Is it necessary to demolish the existing building to allot 14'.5" frontage and retain 1/4th share and

c) to fix the value of the car shed by considering the age of the car shed and allowable depreciation.

10.

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The plaintiffs are directed to pay Rs.5,000/- [Rupees Five Thousand only] to the learned Advocate Commissioner towards additional remuneration within two weeks from the date of receipt of a copy of this order. The learned Advocate Commissioner is directed to file his additional report within three weeks. Post the matter on 25.11.2015 for filing the additional report as stated above.
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