IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 FAO.No. 15 of 2006() -------------------- AS.14/2004 of I ADDL.SUB COURT,TRIVANDRUM OS.1491/1982 of II ADDL.M.C.,TRIVANDRUM .................... APPELLANTS/RESPONDENTS 1 TO 7/PLAINTIFFS 1 TO 7: --------------- 1. PRASANNA KUMARI, PUTHALATHU BUNGALOW KOTTUKAL DESOM, KOTTUKAL VILLAGE, NOW RESIDING AT KARTHIKA BHAVAN, TEMPLE LANE, NELLIMOODU P.O., THIRUVANANTHAPURAM. 2. CHANDRIKA OF DO. DO. 3. USHA OF DO. DO. 4. JAYA OF DO. DO. 5. SADANANDAN OF DO. DO. 6. LATHA OF DO. DO. 7. SUNI ALIAS KRISHNAKUMAR OF DO. DO. BY ADV. SRI.D.SAJEEV RESPONDENT(S): --------------- 1. RETNA BAI, PULIPARAKONATH KIZHAKKUMKARA KUNNUMPURATHU VEEDU, KALLIYOOR P.O., THIRUVANANTHAPURAM. 2. YESUDASAN, PULIPARAKONATH KIZHAKKUMKARA KUNNUMPURATHU VEEDU, KALLIYOOR P.O., THIRUVANANTHAPURAM. 3. RAJAN, PULIPARAKONATH KIZHAKKUMKARA KUNNUMPURATHU VEEDU, KALLIYOOR P.O., THIRUVANANTHAPURAM. FAO.15/2006 : 2 : 4. SYLUS BABU, PULIPARAKONATH KIZHAKKUMKARA KUNNUMPURATHU VEEDU, KALLIYOOR P.O., THIRUVANANTHAPURAM. 5. THANKA BAI, ENOSE NAGAR, KAKKAMOOLA, KALLIYOOR P.O., THIRUVANANTHAPURAM. 6. SANTHI, W/O. VIJAYAN, V.S. HOUSE, ALTHARA ROAD, CHERUVICKAL, SREEKARIAM P.O., THIRUVANANTHAPURAM. 7. SUSEELA, KUZHIPARACHA VEEDU, NELLIMOODU P.O., THIRUVANANTHAPURAM. 8. R. SUMATHI, EVANEZER HOUSE, CHERIYAKONNI, P.O. NEDUMANGADU, THIRUVANANTHAPURAM. 9. VIJAYAN, PULIPARAKONATH KIZHAKKUMKARA KUNNUMPURATHU VEEDU, KALLIYOOR P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.S.KALKURA FOR R1 & R4 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- F.A.O. No.15 of 2006 ------------------------------- Dated this the 10th June, 2009 J U D G M E N T Raman, J. This appeal is filed against the order passed by the First Appellate Court in A.S.No.14/2004, remitting the matter for fresh consideration to the trial court. 2. In a suit for partition and redemption of mortgage, the trial court passed preliminary decree, confirmed in appeal, and thereafter there was a Second Appeal as S.A.No.298 of 2000. This Court, by its judgment dated, 23.10.2002, allowed the second appeal in part. It was clarified that redemption of the mortgage will be only with respect to the property less what has been sold by the two sale deeds , otti kuzhikkanam and the land acquisition proceedings. In other words, though the preliminary decree for redemption was passed in respect of the entire extent, the subsequent sale in favour of the defendants by which the FAO.No.15/2006 2 defendants became owner of the property of the extent so sold is liable to be excluded from redemption, as there is a merger of interest in respect of the said extent so sold. Likewise, there is a otti kuzhikkanam and the extent covered by such otti kuzhikkanam is also to be excluded. Further, some extent of land has been acquired by the Government for public purpose, and the acquired extent has also to be excluded. Therefore, the limited purpose for which the matter was remanded by this Court, allowing the second appeal, is to re-calculate the extent, after excluding the properties thus covered by two sale deed, otti kuzhikkanam as also the extend of land acquired by Government. 3. Subsequent thereto, the trial court after elaborate consideration of the matter appointed a Commissioner, who after inspecting the property, measured the same and submitted a report along with a plan. Actual extent available for redemption has been found out. In that report, the Commissioner found that as against 19 cents of land proposed to FAO.No.15/2006 3 be acquired by notification, the actual extent taken possession of was only 13.5 cents. The remaining extent was thus available for redemption. The point that was canvassed in the appeal therefrom by the defendants was that the finding of the court below that only 13.5 cents acquired as against 19 cents is not supported by documents and the trial court committed error in excluding only 13.5 cents as against 19 cents. The Appellate Court set aside the report of the Commissioner and remanded the case to the trial court for fresh consideration. It is against the said appellate order that the present appeal is preferred. 3. We have heard the parties. In so far as the Commissioner has inspected the property, measured the same and found the actual extent available for redemption, in the absence of concrete evidence contra to the same, whether or not 19 cents acquired or 13.5 cents acquired is besides the point. If it is 19 cents acquired and lesser extent taken possession of, the advantage will come to mortgagor, the owner of the property and not to the mortgagee. Even if 19 cents acquired has been taken FAO.No.15/2006 4 possession of by the Government, still the question is what is the actual extent available now for redemption. Therefore, mistake in the actual extent could have happened else where also. In the absence of any claim by third parties, after excluding the extent of land as per the sale deeds, otti kuzhikkanam, as also by land acquisition, what is the actual extent available for redemption is a question of fact which can be done by the Commissioner, after inspecting the property, over which there cannot be any serious dispute. If so, we find that appellate order suffers from material irregularity. Accordingly, we allow the appeal. The impugned order is set aside, and the judgment and decree passed by the trial court is confirmed. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj.