IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 RFA.No. 472 of 2008() --------------------- OS.131/2005 of PRL.S.C.,THALASSERY .................... : APPELLANTS/DEFENDANTS 2 & 3 5 TO 12 ---------------------------------------------------- 1. T.P.HARIS, S/O.MAMMU HAJI, RESIDING AT RABIA VILLA, THAVAKKARA, KANNUR - 2. 2. T.P.ABDUL WAHID, S/O.MAMMU HAJI, RESIDING AT FAZIH, NEAR GOVT.HOMEO HOSPITAL, KAKKAD ROAD, KANNUR-2. 3. DEFENDANTS 5 TO 12 ----------------- T.P.FATHIMA, D/O.MAMMU HAJI, C/O.P.NOUFAL, TIMBER MERCHANT, 177, SYDENHAMS ROAD, CHENNAI - 600 003. 4. T.P.MARIYAM, RESIDING AT WAHIBAS, SADHOO BEEDI COMPANY ROAD, P.O.CHOVVA, KANNUR - 6, REPRESENTED BY POWER OF ATTORNEY HOLDER, T.P.WAZIR, S/O.KUNHIPACKI, WAHIBAS, SADHOO BEEDI COMPANY ROAD, P.O.CHOVVA, KANNUR-6. 5. T.P.JASEEMA, D/O.ABDU RAHIMAN, C/O.P.NOUFAL, TIMBER MERCHANT, 177, SYDENHAMS ROAD, CHENNAI - 600 003. 6. T.P.WAZIR, S/O.KUNHIPACKI, WAHIBAS, SADHOO BEEDI COMPANY ROAD, P.O.CHOVVA, KANNUR-6. 7. T.P.WAJEEH, S/O.KUNHIPACKI, WAHIBAS, SADHOO BEEDI COMPANY ROAD, P.O.CHOVVA, KANNUR - 6. 8. T.P.WAHIBA, D/O.KUNHIPACKI, WAHIBAS, SADHOO BEEVI COMPANY ROAD, P.O.CHOVVA, KANNUR - 6. 9. T.P.SHUHAIL, S/O.NOUFAL, TIMBER MERCHANT 177, SYDENHAMS ROAD, CHENNAI - 600 003. 10. T.P.SHAZA, D/O.P.NOUFAL, TIMBER MERCHANT, 177, SYDENHAMS ROAD, CHENNAI - 600 003. 11. SUPPL.DEFENDANTS 24 TO 28 ------------------------ AYSHA, W/O.LATE NIZAR, MAREEGARH, P.O.CHIRAKKARA, THALASSERY. 12. MAZEEM (MUHAMMED WASEEM), S/O.LATE NIZAR, MAREEGARH, P.O.CHIRAKKARA, THALASSERY. 13. SABIK, S/O.LATE NIZAR, MAREEGARH, P.O.CHIRAKKARA, THALASERY. 14. SABEEL (MINOR) S/O.LATE NIZAR, MAREEGARH, P.O.CHIRAKKARA, THALASSERY, REPRESENTED BY MOTHER, AYSHA, W/O.LATE NIZAR, MAREEGARH, P.O.CHIRAKKARA, THALASSERY. 15. BAHAAS (MINOR), S/O.LATE NIZAR, MAREEGARH, P.O.CHIRAKKARA, THALASSERY, REPRESENTED BY MOTHER, AYSHA, W/O.LATE NIZAR, MAREEGARH, P.O.CHIRAKKARA, THALASSERY. BY ADV. SRI.BABU S. NAIR RESPONDENTS: RESPONDENTS/PLAINTIFFS 1 TO 39, DEFENDANTS 1, 4 ------------------------------------------------------------ 1. T.P.ABDUL AZEEZ, S/O.ABDURAHIMANKUTTY HAJI, RESIDING AT SHAMNA, P.O. THANA, KANNUR-12. 2. T.P.SATHAR, S/O.ABDURAHIMANKUTTY HAJI, RESIDING AT MUBARAK, P.O.CHOVVA, KANNUR-6. 3. T.P.MEHAMOOD, S/O.ABDURAHIMANKUTTY HAJI, MEHFIL, PAPPINISSERY AMSOM, VELAPURAM DESOM, KANNUR DISTRICT. 4. T.P.KADEEJABI, D/O.ABDURAHIMANKUTTY HAJI, JAZEELAS, P.O.ARAKKINAR, KOZHIKODE. 5. T.P.RABIA, D/O.ABDURAHIMANKUTTY HAJI, SHAMNA, P.O.THANA, KANNUR - 12. 6. T.P.REMLA, D/O.ABDURAHIMANKUTTY HAJI, NAZREEN, THAVAKKARA, KANNUR-2. BY THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 18/07/2008, THE COURT ON 23.7.2008 DELIVERED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.F.A.No. 472 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of July, 2008. JUDGMENT Ramachandran Nair, J. The appeal arises from a suit for partition. The appellants are defendants 2 and 3, 5 to 12 and supplemental defendants 24 to 28. As per the judgment, a preliminary decree is passed for partition of the plaint schedule property into 70 equal shares and to allot 53 shares to the plaintiffs and defendants 15 to 23 jointly. The court below has directed further that the equity and reservations will be considered during the final decree stage. 2. The main contention raised in this appeal is that there was an oral partition in the year 1971 which had taken effect and therefore the entire property is not available for partition. It is contended that only 26 cents of land was kept common to be enjoyed by all members of the tavazhi after the oral partition. 46.30 cents of land was allotted to the tavazhi of Ayshabi and another extent of 96 cents was allotted to the tavazhi of Sainaba with Abdullakunhi's share. 3. The court below found that there is no evidence to prove the oral RFA 472/2008 -2- partition in 1971. No documents were produced to show that the properties were separately possessed or enjoyed by the parties based on the oral partition. It was also found that the defendants have not disputed the genealogy produced by the plaintiffs and in view of the above circumstances also, it was held that the property is available for partition. 4. Learned counsel for the appellants submitted that defendants 1 and 2 were examined in support of the case of oral partition in 1971 and in the absence of any contra evidence on the part of the plaintiffs, the court below was not justified in rejecting the said contention. It is contended that the plaintiff has not discharged the burden of proof on this aspect. It is further contended that the court below was not right in relegating the parties to the final decree stage for considering the equity and reservation and at any rate, in the final decree proceedings those cannot be effectively adjudicated upon, which will prejudice the appellants. 5. We find that both the contentions are not sustainable. The plea that the properties were orally partitioned in the year 1971 was raised by defendants 2 to 4, 6, 9 and 10 in their written statement. Only the oral evidence of Dws.1 and 2 were there. No documents were produced to show separate possession and enjoyment of the property after the oral partition. There was no evidence to show any mutation in their favour and no revenue RFA 472/2008 -3- records have also been produced. In these circumstances, the court below was right in rejecting the said contention. 6. As far as the genealogy is concerned, no dispute has been raised against it. In these circumstances, the finding that the plaint schedule property is available for partition among the 70 shares, cannot be assailed. 7. We find that there is no merit in the apprehension expressed by the learned counsel for the appellant that the plea regarding equity and reservations will not be considered in the final decree proceedings in the light of the specific direction issued in that regard by the court below. We make it clear that the parties who have put forth such contentions, can reiterate the same in the final decree proceedings and the court below will be bound to consider the same as such pleas have not been considered and rejected in the judgment under appeal. No other points arise for consideration. Therefore, confirming the decree and judgment, we dismiss the appeal. No costs. ( P.R.Raman, Judge.) (T.R.Ramachandran Nair, Judge.) kav/