9911796707
TMI Blog2003 (1) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... properties against the respondents 4 and 5. A preliminary decree was passed on 19.10.1990. Pending the suit the fourth respondent died. Consequently the respondents 1 to 3 are entitled for half share and the fifth respondent for the remaining half share in the suit properties. 2. The respondents 1 to 3 filed Application 1502 of 1994 for passing the final decree. Three Advocate-Commissioners were appointed at different point of time. Finally the Report of the Advocate-Commissioner dated 19.9.2000 was accepted and the learned Judge passed the final decree, allotting item Nos.1a, 3, 4, 6 and 8 of the plaint schedule property to the share of the respondents 1 to 3. By way of owelty to equalise the value of the share, the fifth respondent was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share of the respondents 1 to 3/plaintiffs in the suit, the appellant has filed this appeal by way of one more round of litigation. 8. The learned counsel for the appellant vehemently contended that the appellant having invested huge amount on construction, the said Item No. 6 of the plaint schedule can be allotted to him and the respondents can be allotted Item No. 5 of the plaint schedule. The First Commissioner valued Item No. 5 at ₹ 18,14,540/-; whereas item No. 6 is valued at ₹ 18,12,262/-. On the basis of this valuation, the counsel for the appellant further contended that Item No. 5 being more value, the respondents may not be prejudiced in taking that property. It was further submitted that the appellant is willing to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh the Commissioner's Report and the valuation of each item of the property, the learned Judge has made allotment to the respective parties. If the contention of the learned counsel for the appellant is to be accepted, then there is no purpose of the prohibition imposed under Section 52 of the Transfer of Property Act. 12. Section 52 of the Transfer of Property Act envisages that during the tendency of any proceeding, in any court, in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the other party to the litigation. When this court finds no justification on the part of the appellant in constructing the superstructure pending the litigation, it is not possible to concede the request of the appellant. 17. When the learned counsel for the respondents contended that Item No. 5 being in possession of the tenants, we cannot compel the respondents to take Item No. 5 of the plaint schedule and force them to face one more round of litigation to evict the tenants. For the reasons stated above, we do not find any ground to interfere with the order of the learned Judge. 18. However, we make it clear that taking into consideration of the statement made by the learned counsel for the respondents that the appellant can pay the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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