IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 CRP.No. 45 of 2005(B) --------------------- AGAINST THE ORDER DATED 12/10/2004 IN IA.781/95,IA.804/03 IN OS.102/1986 of MUNSIFF COURT, OTTAPPALAM .................... REVN. PETITIONER: RESPONDENTS 3, 15 & 16: DEFENDANTS 3, 15 & 16 --------------------------------------------------------------- 1. VILASINI KOVILAMMA, D/O.AMMU KOVILAMMA, NELLAYA AMSOM, EZHUVANTHALA DESOM, OTTAPALAM TALUK, KANNUR DISTRICT. 2. VASANTH KOVILAMMA, D/O.VILASINI KOVILAMMA, DO.DO.DO. 3. LEKHA, D/O.VILASINI KOVILAMMA, DO.DO. BY ADV. SMT.VIDHYA. A.C SRI.A.C.VENUGOPAL RESPONDENTS: RESPONDENTS:FINAL DECREE PETITIONER & RESPONDENTS -------------------------------------------------------------- 1. KUNHI PATHUMMA, W/O.PUTHEN PEEDIKAKKAL MUHAMMED, VALLAPPUZHA AMSOM DESOM, OTTAPALAM TALUK, KANNU DISTRICT. 2. SUBHADRA KOVILAMMA, D/O.POOMARATHIL VISALAKSHI KOVILAMMA, NELLAYA AMSOM, EZHUVANTHALA DESOM, OTTAPALAM TALUK, KANNUR DISTRICT. 3. KAMALAM KOVILAMMA,(A) PANKAJAKSHAN NEDUNGADI, NELLAYA AMSOM, EZHUVANTHALA DESOM, OTTAPALAM TALUK, KANNUR DISTRICT. 4. GOPALAKRISHNAN NEDUNGADI, S/O.AMMU KOVILAMMA, NELLAYA AMSOM, EZHUVANTHALA DESOM, OTTAPALAM TALUK, KANNUR DISTRICT. 5. RAMAKRISHNAN NEDUNGADI, S/O.VISALAKSHMI KOVILAMMA, NELLAYA AMSOM, EZHUVANTHALA DESOM, OTTAPALAM TALUK, KANUR DISTRICT. 6. BALAKRISHNAN NEDUNGADI, S/O.VISALAKSHMI KOVILAMMA, NELLAYA AMSOM EZHUVANTHALA DESOM, OTTAPALAM TALUK, KANNUR DISTRICT. 7. INDIRA, D/O.SUBHADRA KOVILAMMA, NELLAYA AMSOM EZHUVANTHALA DESOM, OTTAPALAM TALUK, KANNUR DISTRICT. 8. SANTHOSH KUMAR, D/O.KAMALAM KOVILAMMA, NELLAYA AMSOM, EZHUVANTHALA DESOM, OTTAPALAM TALUK, KANNUR DISTRICT. 9. SURESH KUMAR, S/O.KAMALAM KOVILAMMA, NELLAYA AMSOM, EZHUVANTHALA DESOM, OTTAPALAM TALUK, KANNUT DISTRICT. 10. SATHEESH KUMAR, S/O.KAMALAM KOVILAMMA, NELLAYA AMSOM, EZHUVANTHALA DESOM, OTTAPALAM TALUK, KANNUR DISTRICT. 11. JYOTHI, D/O.KAMALAM KOVILAMMA, NELLAYA AMSOM, EZHUVANTHALA DESOM, OTTAPALAM TALUK, KANNUR DISTRICT. 12. SUBHASH, S/O.KAMALAM KOVILAMMA, DO.DO. *13. MALUKUTTY KOLPAD, W/O.DECEASED KELUNNI NEDUNGADI, DO.DO. (DELTED) 14. MOHANDAS, S/O.MALUKUTTY KOLPAD, DO.DO. 15. RAVEENDRAN, S/O.MALUKUTTY KOLPAD, DO.DO. 16. MALLIKA, D/O.MALUKUTTY KOLPAD, DO.DO. 17. CHANDRIKA, D/O.MALUKUTTY KOLPAD, DO.DO. 18. NIRMALA, D/O.MALUKUTTY KOLPAD, DO.DO. 19. ASHA, D/O.MALUKUTTY KOLPAD, DO.DO. *20. PREMKUMAR, S/O.MALUKUTTY KOLPAD, (DELTED) DO.DO. 21. SHOBHA, D/O.MALUKUTTY KOLPAD, DO.DO. 22. THANKAM, W/O.RADHAKRISHNAN NEDUNGADI, DO.DO. 23. SUJATHA, D/O.THANGAM, DO.DO. 24. SUNIL, S/O.THANKAM, DO.DO. 25. GEETHA, D/O.THANGAM, DO.DO. 26. VAZHAKKA PARAMBIL ABDULRAHIMAN, DO.DO. *27. CHATHANKULAM MUHAMMED KUTTY, DO.DO. (DELTED) * 28. KUNHALAVI, DO.DO. (DELTED) 29. VEERAN, S/O.MALAYIL KADARKUTTY, DO.DO. 30. MOIDU HAJI, S/O.MALAYIL ALI, DO.DO. *31. C.P.HAMZA HAJIYAR, DO.DO. (DELTED) 32. KUNDITHODI KUMARAN, DO.DO. 33. C.P.MUHAMMEDKUTTY, S/O.HAMSA HAJIYAR, DO.DO. * 34. CHATHANKULAM ABBAS, KUNHIKKATHODI, VALLAPPUZHA, OTTAPALAM TALUK, KANNUR DISTRICT. (DELTED) *35. CHATHANKULAM AYISUMMA, DO.DO. (DELTED) 36. C.P.ABDU, S/O.C.P.HAMSA HAJIYAR, NELLAYA AMSOM, EZHUVANTHALA DESOM, OTTAPALAM TALUK, KANNUR DISTRICT. 37. C.P.MARAKKAR, S/O.HAMSA HAJIYAR, DO.DO. RESPONODENTS 13, 20, 27, 28, 31 AND 34 ARE REMOVED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 11.08.2005 ON I.A. 2151/2005 BY ADV. SRI.SANTHEEP ANKARATH FOR R1 SRI.P.P.SURESHKUMAR FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30.07.2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. No. 113/2005 IN C.R.P No. 45/2005 DISMISSED SD/- HARUN-UL-RASHID, JUDGE es 30.07.2008 HARUN-UL-RASHID, J. ------------------------------------------ C.R.P No. 45 of 2005 ------------------------------------------- Dated this the 30th day of July 2008 ORDER Defendants 3, 15 and 16 in O.S. No. 102/1986 on the file of the Munsiff Court, Ottapalam are the revision petitioners. They are respondents 3, 15 and 16 in the final decree application pending before the said court. This revision is directed against the order dated 12/10/2004 in I.A. No. 804/2003 in I.A No. 781/1995 in the said suit. The revision petitioners are the applicants/petitioners in the said I.A. The said I.A. was filed with a prayer to set aside the Commissioner's report and to appoint a new Commissioner 2. In the preliminary decree it is directed that as far as possible item No. 4 shall be allotted to the revision petitioners. After the passing of the preliminary decree the revision petitioners purchased the shares of defendant Nos. 4,17, 18, 32 and 33. It is submitted by the revision petitioners that item No, 4 wherein the tharavad house is situated was possessed and enjoyed by the revision petitioners and defendants 4, 17, 18 pursuant to the allotment in 1971 partition Karar. According to them the entire property is required for the proper enjoyment of the property and residence of the tharavad members. It is submitted by the counsel for the revision petitioners that the Commissioner allotted only 50 cents and the tharavad house to the revision petitioners and the balance extent of 39 cents in the said plot to strangers. The counsel submits that if 39 cents is allotted to strangers as per the Commissioners report, the appurtenant C.R.P No. 45 of 2005 -2- structures of the tharavad hosue will be in the hands of the strangers. Therefore it is requested that as far as possible the Commissioner shall allot 7/22 shares earmarked from the entire item No. 4 property and if more extent is necessary consider the other items also. It is submitted by the revision petitioners that the Commissioner has also noted that the portions of item No.4 was allotted to the revision petitioners as C and D schedules in the 1971 partition karar. Therefore the said item shall be allotted to them and the balance extent shall be allotted to them from other properties. Hence the Commissioner is directed to allot the share of the revision petitioners firstly from Item No. 4. if the entire item No.4 is not required for the allotment of 7/22 shares, so much of portion from the tharavad house property which is required for the entire 7/22 share shall be allotted to them. 3. In the facts and circumstances of the case the request for preferential allotment of item No. 4 is accepted. The court below shall issue necessary directions to the Commissioner to submit revised report on the basis of the findings made above. Out of the 22 sharers the revision petitioners represent 7 sharers They are in occupation of the tharavad house and the surrounding property. Being members of the tharavad and residents of the tharavad house they can legitimately claim allotment of the entire item No. 4 as their share. The request is reasonable for the further reason that the Commissioner allotted 39 cents from item No. 4 property to the strangers who are not members of the C.R.P No. 45 of 2005 -3- tharavad So it is just and proper to allot other items of properties to the strangers/final decree applicants The trial court is directed to issue necessary direction to the Commissioner and obtain a revised report making adjustments as stated above. 4. The counsel for the 1st respondent who is the petitioner in the final decree application also contended that there is no request from the side of the revision petitioners to allot item No.4.as far as possible. No such request was made even at the preliminary decree stage. This contention is not correct. I have perused the final decree application. The definite contention taken by the revision petitioners is that in the event of partition division may be effected without disturbing the allotment as per the partition karar of 1971. 5. I also note that the opposing respondents are strangers to the tharavad, subsequent transferees and purchasers of portions of properties belonging to the tharavad. So long as these transferees are not in possession of any portion of item No 4 property, the objection raised in allotting the said property to the members of the tharavad does not merit contention . In the result this Civil Revision is disposed of as above. The impugned order is set aside. There will be no order as to costs. HARUN-UL-RASHID, JUDGE es